Having a Voice Podcast
Please here our YouMeWePodcast
Despite the large number of children within the alternative care system, there are several deficiencies in critical need of correction to continue the positive recent reforms pledged by the government. The two decades has seen large scale reforms for the prevention of child abuse and strengthening of the alternative care system; however, it appears that there must be substantial reform to continue Japan’s trajectory to protect both the rights and livelihoods of children. Sources for improvement may be found on a global scale, both through resolutions and recommendations by the United Nations and models produced by successful modern nation-states. In particular, UN guidelines to Alternative Care and the Convention on the Rights of a Child set a high standard for child care for all nation-states to deliver on. Such goals include fostering a family-like environment, preferably through the foster care system, and to have a child’s voice in decision making considered valid. As such, our position is two-fold, both increasing the depth of children’s autonomy when they are faced with at-risk situations, while also developing a specialized bureaucratic structure, both increasing the qualifications of social workers and reforming and expanding the family court structure. Human Rights Watch Reports from the past decade suggest that despite the government pledge to transition one-third of children in alternative care to foster homes, the support to maintain this structure remains undeveloped. Human Rights Watch submits several testimonies of parents feeling unsupported with resources, and cite a potentially low standard of qualifications for child guidance center mediators-potentially leading to ill suited parent-child matchings and poor case management. Therefore, our proposition as laid forth seeks to remedy the transitional struggle for Japan as it moves into a new era of alternative care. Doing so will both secure the rights of children in the alternative care system, while also providing a remedy to ensure that those rights are effectively protected and perpetuated.
In Japan, there are two laws established in order to protect abused children: the Child Welfare Act and the Child Abuse Prevention Act. The Child Welfare Act addresses matters of child welfare, as well as child abuse, in Japan. It states that children must be “properly nurtured, be afforded a guaranteed quality of life, be loved, be protected, have healthy growth and development of the mind and body, and be able to be independent.” In cases that the child’s welfare is extremely harmed by the guardian, such as physical or mental abuse or extreme neglect cases, the governor may place the child under residential care by obtaining permission from a family court against the guardian’s wishes. The governor may also send a child welfare officer to investigate and evaluate the situation.
Under the Child Abuse Prevention Act “child abuse” is defined as assaulting the child that will cause external injury on the child, engaging with or causing the child to engage in indecent behavior, failing to perform the duties of a guardian such as not giving enough food and neglecting the child for long periods of time that could affect the development of the child either mentally or physically, or acting or speaking in violent ways that could be traumatic for the child to witness and experience. No guardian is exempt from these and will be subject to punishment. In the case that a child does not have a guardian, along with an abused child, they are also considered to be an “aid-requiring child”. For any “aid-requiring child,” government or welfare offices are notified. They then may admonish the guardian, require them to submit a written pledge, or receive counseling by a child welfare officer. The child is then placed under temporary care, which can either be in the form of a foster home or residential care. Once the child is placed under temporary care, the director of the center may restrict the guardian from visiting the child as well as not disclose the location of the child. The prefectural government also has the authority to prevent the guardian from visiting or following the child to school or other places under a restraining order which can be issued after holding a hearing.
After the death of children in two cases in 2018 and 2019, the Cabinet submitted a bill to amend the Child Welfare Act and the Child Abuse Prevention Act in March 2019 in order to strengthen measures to preven child abuse. The new bill prohibits the use of corporal punishment by parents and placing professionals, such as psychiatric social workers in child counseling centers. There are also provisions – Article 834 and Article 834-2 – in the family law section of the Civil Code authorizing the suspension of parental authority when a guardian abuses their child.
According to the Human Rights Watch Report “Without Dreams” as of 2013, 39,047 children were living within the alternative care system, with over 85 percent placed in institution-style living arrangements. While large institutions have been a staple of the Japanese alternative care system since World War II, numerous studies have concluded that institutionalization regardless of standard of living has detrimental effects on a child’s ability to form meaningful relationships and on mental health in general. Child care workers can rotate in and out of institutions, preventing the development of bonds essential to successful social development. According to a government report from 2008, roughly 53 percent of the children who are in the child care institutions are victims of domestic violence or neglect. In 2018, 159,838 cases of child abuse were reported or referred to the consultation centers: 55.3% involved psychological abuse, 25.2% physical abuse, 18.4% neglect, and 1.1% sexual abuse. However, experts see the small percentage of sexual abuse cases as the “tip of the iceberg” because victims typically keep their circumstances hidden, especially if the abusers come from the immediate family, for fear of exposing the situation will break up the family.
Undoubtedly, unstable care relationships coupled with previous trauma may result in what the Human Rights Watch report describes as attachment disorder, development delay, and neural atrophy. It doesn’t help that children who do have disabilities are sent to schools exclusively reserved to those with disabilities, so they do not have the chance to interact with others in their community. International human rights law states that children with disabilities have the right “to be supported as necessary so that they can live in a community-based setting and have an inclusive education”. Many of these facilities, which house 20 or more children, are a poor alternative to a healthy family environment, and a government investigation found sexual violence perputated by the care takers against children was widespread at these institutions. At least 409 cases of sexual violence were reported by institutions to local authorities in Tokyo and eight other prefectures.
Not only is physical and sexual abuse by caregivers against children and limited opportunities to bond with others and learning life skills are striking problems within the insitutions, but the insufficient measures in place for children to report problems and the lack of support once they leave the system, leading to homelessness, low-paying work, little chance for higher education, difficulty navigating society in terms of social and employment structure, are all critical issues within the institutions. The root problem behind the plight of children placed in institutions stems from the fact that Japan tends to defer to the financial interest of existing institutions as well as acquiesce to the preference of biological parents to place the child in an institution rather than with a foster family. The interest of the parents is seen as more important than the interest of the child.
Recently, the government has targeted to transition one-third of children into foster parent care; however this plan seems to be slow moving. Compared to other industrialized nations, Japan has a strikingly low population of children within the foster care system. Whereas Japan’s foster care system accounted for 12 percent of children in need of alternative care services, Hong Kong, Australia, the United States, and the United Kingdom all had foster care populations over 70 percent as of 2013. While foster care is not the only solution to providing a stable environment for children to develop stable, nurturing relationships, the UN Guidelines for the Alternative Care of a Child strongly suggest that family-based settings are preferable and beneficial to child growth and development, and that large institutions should be progressively phased out.
While the statistics show that there has been a minimal increase of children in the foster care system, children guidance centers have been reluctant to invoke delegated powers to place children into foster care in accordance with governmental guidelines stated in the Foster Parents First Principle. Pursuant to the Child Welfare Act, Art. 28 delegates permission for child guidance centers to place children in temporary custody if a child has been neglected or its welfare is endangered. However, this process engages a process within the family court system that takes months just to have a hearing on the circumstances. Additionally, cultural values of maintaining the family unit appear to be an obstacle, as guidance centers are reluctant to place children in foster care out of fear of “losing the child” to their new parents. As such, if a guidance center is met with a child in need of being placed in alternative care, if a parent strongly disagrees with foster parent placement, their wishes are generally heeded, without any input from the child. Such actions not only erode the principles of the Child Welfare Act, but also are contrary to the UN Convention on the Rights of the Child Article 12(1) in which a child has a right to express their views and should be taken with due consideration to their age and maturity. As such, it is critical to continue to take a child’s welfare first into consideration above all else, and heed to what they feel is best for their own safety and well-being.
Possibly because of the social stigma surrounding foster care or the alternative care system in general, the resources delegated to foster care parents and the qualifications of guidance center workers has not progressed to meet the needs of the system. Child guidance center staff members constitute part of the bureaucracy of Japan, and as such are rotated in and out of centers as members of civil service. Human Rights Watch reports that just 53 percent of center directors and 65 percent of social workers have care-related qualifications, and more strikingly it is not uncommon to find counselors and mediators previously working in fields not related to child care at all. In addition, this rotation system prevents a system of professionalism to be developed where proper care can not be given to the people they serve. This system established by the government also prevents social workers from developing their own skills in specific areas such as counseling, thus leaving complex issues such as child abuse to be left to the family.
Because of the inherently complex nature of mediating and evaluating placement of children into alternative care, it is integral to have counseling professionals equipped to deal with at-risk situations. Guidance centers are the control center for ensuring the welfare of children. If they are not equipped to the highest standards of education and qualifications, the welfare of the children that they are supervising is at risk.
Turning towards the resources of support for foster parents, despite recent headway with monetary funding to parents agreeing to take in children, resources appear limited for guidance. Certification to become a foster parent is a relatively simple process involving a short period of training, proof of financial stability, marriage status and no criminal record. However, again, the shortage of resources for child guidance centers has resulted in unqualified parent candidates to be matched with children that their certifications do not meet. As such, Human Rights Watch shockingly reports that nearly half of specialized foster parents have cancelled their arrangements for child care. Even when children are placed with a foster family, almost a quarter of foster child placements do not work out and the child is sent back to the institution. Moreover, the percentage of abuse by foster parents is higher than abuses recorded among children in the institutions, and some children have also died in foster parent care. Therefore, in order to ensure a successful transition out of the foster care system, it is integral that the parents that are caring for the children are equipped with the resources necessary to ensure a successful standard of care. This not only involves monetary supplements, but also increasing child guidance center supervision, and more intensive training to suit the needs of at-risk children and also those suffering from mental or physical disabilities.
Attempting to make headway to transition children from institutions, foster care, and eventually adoption, in April 2018, Japan established a new law regarding special adoptions. Under a special adoption, the child is not listed as an “adopted son or daughter” in the family registry but rather as the adoptive couple’s natural child and all ties with the birth parents are cut off, allowing the child to live a stable, permanent family life. However, currently, this is limited to children only under the age of six and is separated from the foster care system. There is also a probationary period of six months or more and must be approved by family court. However, the issue, like mentioned before, is the fact that the birth parents must agree to relinquish their rights because Japan’s child welfare system prioritizes the role of biological parents in rearing a child. Birth parents may also withdraw their consent from the process of a special adoption at any point during the process.
As such, the aforementioned proposals are only the first step to ensure that Japan continues its trajectory towards truly protecting and enforcing the rights of children in the alternative care system, or suffering from at-risk situations. In segments to come, we will review an expansion of the Family Court system in Japan, in order to secure a space for the rights of the children to come to effect and remain in use. Additionally, an expanded Family Court system will provide an avenue to expedite the alternative care process, while also allowing for both child guidance centers and parents to advocate in a space where each party is on an equal playing field.