A Comparative Overview of Asia Pacific Maintenance/ Child Support Systems Hong Kong 9 November 2015 Mikiko Otani

To researchers: How and where would you get the information on the child support system in every each country in the Asia-Pacific? To practitioners: How and where would you get the necessary information and assistance for your cross border child support case involving the foreign jurisdiction in the Asia-Pacific? 2

Countries in the Asia-Pacific Afghanistan Australia Bangladesh Bhutan Brunei Darussalam Cambodia China Cook Islands Democratic People's Republic of Korea Fiji India Indonesia Iran (Islamic Republic of) Japan Kiribati Lao People's Democratic Republic Malaysia Maldives Marshall Islands Micronesia (Federated States of) Mongolia Myanmar Nauru Nepal New Zealand Pakistan Palau Papua New Guinea Philippines Republic of Korea Samoa Singapore Solomon Islands Sri Lanka Thailand Timor-Leste Tonga Tuvalu Vanuatu Viet Nam 3

Practical information necessary for a child living outside Japan to collect child support from the father living in Japan – (1) Legal basis If the parents are divorced → Article 766 of the Civil Code If the parents are married → Article 760 of the Civil Code If the parents are not married → Article 877 of the Civil Code 4

Practical information necessary for a child living outside Japan to collect child support from the father living in Japan – (2) Court procedure 5

Practical information necessary for a child living outside Japan to collect child support from the father living in Japan – (3) Practical issues How much can this child get from the father? How to locate the father? How to find out the father’s income? How to prove that he is the father? How to find an available Japanese lawyer? How much it would cost for the legal process? Is there legal aid available? How to enforce a court order if the father doesn’t pay? 6

Practical information necessary for a child living outside Japan to collect child support from the father living in Japan – (4) Cross-border issues Does the Japanese court have jurisdiction? Which law does the Japanese court apply? Will the Japanese court recognize and enforce the foreign court child support order? Is the applicant required to attend the proceedings in the Japanese court? Who will pay translation/interpretation cost? Is legal aid available for the party who lives outside Japan? How to find a Japanese lawyer who can communicate in English or other foreign languages and handle cross-border cases? 7

Examples of common challenges for cross- border recovery of child support in the Asia-Pacific  Left behind children in the Philippines born from a Filipino mother and a Japanese father (“JFC”), a Korean father (“Kopino”), an Australian father or a father from other countries.  Amerasian children born from the US military father and an Asian mother in Japan (Okinawa), Korea, Philippines, Vietnam 8

NGO/practioner’s initiative in response to the challenges - Citizen's Network for Japanese-Filipino Children Initiative started by some 60 Japanese lawyers in 1993 Main activity: To provide legal assistance to the JFC for recognition, recovery of child support, etc. The local office was opened in Manila in 1998 Network has grown: 200 Japanese lawyers (as of Dec. 2014) are accepting JFC cases in Japan Cases have increased from 91 (2005) to 336 (2014) 75% of the cases are Japan-Philippines cross-border cases (clients are living in the Philippines) 9

. 10 Father ordered to support 'Kopino' son A local court ordered a Korean father, Tuesday, to support his son who was born to a Filipino woman with whom he had an affair during an overseas trip there. Children born from such unions are often referred to as "Kopino," a portmanteau of Korean and Filipino. The ruling, which recognizes the parental responsibility of men who father illegitimate children in The Philippines, is the second such decision, following one reached by Suwon District Court last month. The Seoul Family Court Tuesday said that the man, whose identity was withheld, should pay the mother in Philippines 300,000 won ($267) a month in child support until his son reaches the age of 19. According to "We Love Kopino," an organization of Kopinos, there are some 30,000 such biracial children. According to the Seoul Family Court, some 50 similar cases seeking child support are pending. - Korean Times, June 9, 2015

Child Support as the Child Right 1.Right of the child to development 2.Primary responsibility of the parents 3.Responsibility of the state to secure the recovery of maintenance for the child from the parents 4.Particularly vulnerable situation of left behind children – recognition, nationality, child support, contact, discrimination 11

UN Convention on the Rights of the Child (1989) Article States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. 2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development. 4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements. 12

The recommendation of the UN Committee on the Rights of the Child to Japan (2010) -Strengthen the implementation of existing laws and measures which ensure that both parents, married or not, contribute equitably to the maintenance of their children and that maintenance obligations are effectively recovered when a parent fails to meet his or her obligations; -Ratify the 1996 Hague Convention on Child Protection. [Background] Ratio of single mother receiving child support from the father: 19.0 % (2006), 19.7% (2011) Resource: Ministry of Health, Labour and Welfare Statistics (2011) 13

The recommendation to other countries in the Asia-Pacific in relation to UN CRC Art. 27 *Countries randomly picked up CountryYearRecommendation Malaysia2007None Philippines2009None Cambodia2011None Australia2012None Thailand2012Ratify the 1996 Convention on Child Protection India2014None Indonesia2014None 14

Australia 15

Australia - cont’d 16

Australia - cont’d 17

Australia - cont’d 18

Australia - cont’d 19

Promoting Hague 2007 Child Support Convention in the Asia-Pacific Why? 1.Child Rights/Parents Responsibility/State Responsibility 2.To improve/strengthen the national mechanisms for domestic and cross-border recovery of child support  Effective access to procedures (Art. 14)  Free legal assistance (Art. 15)  Prompt and effective enforcement measures (Art. 32, Art. 34) 3. To enhance access to information (Country Profile) (Art. 57) 20

How? – Strategy recommendations 1.Put the issue in the context of the Child Rights – use UN Convention on the Rights of the child, work in partnership with the UN Committee on the Rights of the child 2.Use all the regional fora and opportunities – ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC), LAWASIA (The Law Association for the Asia and the Pacific), any regional conferences on children 3.Put the issue in the regional context – address the common challenges, connect to other key challenges such as poverty 4.Raise awareness among NGOs, practitioners, all stakeholders working on children 5.Data collection, statistics 6.Technical assistance 21

Mikiko Otani Attorney at law Toranomon Law and Economic Offices Toranomon Hoso Bldg. 9F, Nishi Shinbashi Minato-ku, Tokyo, , Japan TEL FAX