Internacional | 24.06.2024

Evolution of Parental Authority Through the Lens of the Child

The Evolution of the Legal Framework of Parental Authority Reflects a Deep Transformation in the Perception and Protection of the Rights and Well-being of Minor Children. Once considered passive subjects in decisions affecting them, minor children are now recognized as holders of fundamental rights, with a progressive participation in decisions affecting them. This evolution is evident through judicial practices and legislative reforms in different countries, as shown by recent developments in Europe and even in Japan.
The Quest for Protecting the Interests of Minor Children
Family law professionals, including judges, lawyers, and researchers, are committed to protecting the interests of minor children in all decisions and measures taken regarding them. This approach views the child not as an abstract legal entity but as an individual with their own rights. The regime of incapacity to act for minors aims to protect them from the dangers of adult life and judicial conflicts between their parents. However, despite this protection, children often remain excluded from the decision-making processes affecting them.
Although certain rights and capacities are recognized for minors at various ages, such as the right to be heard or to perform certain legal acts, these rights remain fragmentary and limited. For example, a child may be imposed a religion or type of schooling without their consent, and major decisions concerning their parentage or name may be made without their knowledge. This situation illustrates the tension between protecting the child and recognizing their growing autonomy.

I.  Reform of Parental Authority in Japan in 2024

Japan, a country with traditional practices in parental authority, decided to introduce joint parental authority after divorce. On May 17, 2024, the Japanese Diet (Parliament) adopted amendments to the Japanese Civil Code and other related laws, thus introducing the system of joint parental authority over a child following the parents' divorce. The amendments will come into force approximately two years after their adoption, with the most probable date being April 1, 2026. This seems to be a drastic change from the traditional Japanese system of exclusive parental authority held by one parent after divorce. However, when the amendments are analyzed in detail, it becomes clear that they are positive steps for some parents but are not as drastic as other parents might wish. This section will explore the content of the amendments and discuss their implications.

Background of the Reform
Since the promulgation of the Japanese Civil Code at the end of the 19th century, a child belonged to the "Ie" (household), where the woman was subordinate to her husband. In principle, the father of the household consequently held exclusive parental authority and custody of the child following a divorce(1) . After World War II, Japan abolished the Ie system and introduced a system where either the mother or the father would hold exclusive parental authority over the child (2). Thus, in a typical Japanese household, there was a full-time working father who earned an income for the entire family, and a mother who took care of the children at home. Such a division of roles within the family led to the idea that it would be in the best interests of the child for the mother to hold exclusive parental authority (and thus custody) over the child after divorce. Consequently, in more than 80% of divorce cases (and more than 90% of cases where parents disputed who should hold parental authority), the mother obtained exclusive parental authority. In such circumstances, it was more or less socially accepted for the mother to take the children without the father's consent, and for the father to have limited access to the children after separation and divorce.
However, especially since the 1980s, the traditional division of roles has been perceived as inequality between men and women. More women began to work full-time, and more men started to take a more active role in child-rearing. This led to an increasing number of claims from fathers separated from their children due to limited access to their children after the couple's separation.
Additionally, the number of international marriages increased, and the Japanese style of separation (unilaterally bringing the children back to Japan), practiced mainly by Japanese mothers, became an international diplomatic issue in the 21st century. Abandoned parents, especially non-Japanese fathers, complained about losing access to their children after separation: once a spouse unilaterally brought their children from abroad to Japan, the other spouse had no way to bring them back to their country of habitual residence. Furthermore, abandoned non-Japanese parents residing in Japan faced the same problem as abandoned (mostly male) Japanese parents.
These phenomena led to the amendment of Article 766 of the Japanese Civil Code in 2011, which came into force on April 1, 2012. The amendment included child visitation as a subject to be determined by mutual consultation of both parents at the time of divorce and encouraged the parent with exclusive parental authority to allow child visitation by the other parent (3). Additionally, diplomatic conflict led to Japan ratifying the Hague Convention on the Civil Aspects of International Child Abduction in January 2014 (4). However, since the implementation of visitation rights and decisions under the Hague Convention ordering the return of the child from Japan has been modest (5), many abandoned parents continue to face difficulties in gaining access to their children. Consequently, groups advocating for the interests of abandoned parents and the international community, particularly European countries (6), strongly lobbied for Japan to adopt joint parental authority after divorce so that both parents could maintain sufficient access to their children. Responding to these voices, the Family Law Subcommittee of the Legislative Council of the Japanese Ministry of Justice began designing the introduction of joint parental authority after divorce in 2021 and recommended its introduction on January 30, 2024 (7). The Japanese Diet received the draft amendment to the Japanese Civil Code in line with the recommendation on March 8, 2024, and adopted the introduction of joint parental authority after divorce on May 17, 2024.

Content of the Amendments
The amended Japanese Civil Code makes it clear that both parents must mutually respect each other's personality and cooperate with each other, in the child's best interest, when exercising rights or fulfilling obligations regarding the child (8). At the time of divorce, parents will be able to choose between joint or exclusive exercise of parental authority (9). If parents cannot agree on joint exercise and/or who would hold exclusive exercise, the Court will decide who will obtain parental authority over the children. The Court may decide that the exercise of parental authority will be joint (10). When deciding on joint or exclusive authority in the child's best interest, the Court must consider the relationship between the child and the parents, the relationship between the parents, and any other circumstances (11). However, the Court must grant exclusive parental authority to one parent if the child's best interests would be harmed under joint authority, if there is a risk that one parent will physically or mentally harm the child, or if it is difficult to exercise joint parental authority due to a risk of physical violence or harassment, other reasons for parental disagreement, or any other reason (12).
The amendment specifies that a city hall will accept the spouses' divorce declaration only when they have decided who will exercise parental authority over their children or when a request for mediation or judgment for designating parental authority has been filed with the Family Court (13).
Where both parents have joint authority over their children, decisions will be made jointly through mutual consultation (14). However, if one parent is unable to exercise parental authority or if there are urgent circumstances in the child's interest, unilateral exercise by one parent is allowed (15). Additionally, even under joint authority, one parent may unilaterally exercise parental authority over everyday situations concerning the child's care and education (16). If parents cannot decide through mutual consultation on issues not covered by the exceptions, the Family Court can determine which parent will exercise unilateral authority (17).
Everyday matters that can be decided unilaterally include choosing a cram school, meals, vaccination, or authorization to work part-time (18). Urgent circumstances include emergency medical interventions, school admission procedures, or evacuation from a situation of violence (19). However, the definitions of everyday matters and urgent circumstances remain vague. Therefore, the Japanese Diet adopted an auxiliary resolution requiring guidelines to clarify these two concepts (20).
Parents who lost their parental authority over their children due to divorce at the time the amendment comes into effect can request joint authority from the Court if it is in the child's best interest. To grant or deny this request, the judge will consider the course of consultations during the divorce (including the existence of violence by one parent towards the other, whether they underwent mediation or alternative dispute resolution, and if a notarial document recorded the consultation's outcome), subsequent changes in circumstances, and any other relevant factors (21).
The Japanese Civil Code stipulates that at the time of divorce, parents must mutually decide who will hold parental custody or how they will share it, as well as the terms of exercising visitation rights (22). In case of failure, the Court will determine these terms, considering the child's best interest (23).
When one parent is designated as the custodian, that parent has the right to decide on matters relating to the child's care, including the child's residence and authorization to work (24). The non-custodial parent is prohibited from interfering with such decisions (25).
Regarding visitation rights, the amendment added a provision allowing other family members of the child, such as grandparents or siblings, to request the judge for visitation rights if it is particularly necessary for the child (26).
Implications of the Amendments
There are many parents in Japan who have practiced de facto joint parental authority despite their divorce and the exclusivity system. In such cases, a parent with exclusive parental authority takes into account the perspective and opinion of the other parent when making decisions regarding their children. The amendments provide a legal foundation for co-parenting by such parents capable of cooperating with each other despite the divorce. The parent who lost their parental authority over their children can regain it if both parents are able to continue such cooperation.
On the other hand, joint parental authority is unlikely to be granted by the Court if one parent opposes joint authority and if the parents are not cooperative with each other. The Court will consider not only the relationship between the child and the parent but also the relationship between the parents and any other circumstances when determining whether joint parental authority is appropriate. If it appears difficult to exercise joint parental authority due to a risk that one parent may be physically violent or emotionally abusive, due to disagreements between the parents about parental authority, or due to any other circumstances, the Court must grant exclusive authority. In many divorce cases where parental authority is an issue, one parent unilaterally takes the child and begins a separation, claiming exclusive parental authority in favor of the abducting parent by alleging domestic violence or abuse by the other parent. The abandoned parent will deny such accusations and request joint authority. If the abducting parent can prove the existence of domestic violence or abuse, they will obtain exclusive parental authority on the grounds of physical or emotional harassment. Even in the absence of evidence, the Court will still grant parental authority to the abducting parent, as the parents then disagree on the existence of domestic violence or abuse and will struggle to calmly discuss how to raise the child, making joint parental authority difficult (27). Even if only one parent claims domestic violence or abuse, the judge will still grant exclusive parental authority to that parent if it is determined that the parents will have difficulties exercising joint authority due to their lack of cooperative attitude (28).
Until now, when determining which parent should have exclusive authority, the Court considered who had primarily cared for the child before and after the separation. The Court respected the status quo of the child’s custody created by the separation, including unilateral separation, based on the principle of continuity. There is no evidence that the amendments abolish or modify the principle of continuity. The Ministry of Justice has even declared that unilateral separation of the child by one parent without the consent of the other parent, which is not illegal under current law and jurisprudence, will not be made illegal by the amendments (29). Thus, the Court is likely to maintain the current jurisprudence adopting the principle of continuity, and the parent who has primarily cared for the child until the divorce, even as the abducting parent, is likely to obtain custody and exclusive parental authority. Even when both parents agree on joint parental authority, if one parent requests the designation of a custodial parent following the divorce, the judge is likely to adopt the principle of continuity when assigning custody of the child. Thus, the parent who has primarily taken care of the child until the divorce, including an abducting parent, is likely to be designated as the custodial parent with the right to decide on the child’s care, residence, and work authorization.
The parent who lost parental authority over the children is unlikely to regain it if the parents struggle to cooperate due to a history of domestic violence or emotional abuse, the existence of conflict, or the risk of conflict between the parents (30).
Regarding visitation rights, the Ministry of Justice has stated that the visitation issue is distinct from the issue of parental authority (31). Thus, while close relatives such as grandparents and siblings now have a legal basis to request visitation rights and their position is strengthened, the amendments are unlikely to change the current practice of visitation rights for the parent separated from the child.
Overall, while the amendments facilitate co-parenting for parents capable of cooperating with each other regarding their child despite their divorce, the amendments are unlikely to change the current situation for parents in divorce or already divorced who are not able to cooperate with each other for their child, especially those who are in intense conflict.

      II.  Evolution of the Notion of Parental Authority in European Countries and Consequences on International Cooperation

The family law reform in Japan is an important advancement that European countries have also experienced in previous decades.

Parental Authority in European Countries: Similar Concepts Aiming Towards the Same Goal
When observing the roles assigned to fathers and mothers in the member states of the European Union, it is clear that legislators in these various countries necessarily take into account the evolution of customs and societal particularities, but all legislation tends towards the same goal: achieving greater equality of parental rights.
In France, it was in 1970 that the notion of parental authority replaced "paternal power," which ensured the father's exclusive authority over the children. On the one hand, Article 371-1 states that parental authority belongs to both the father and the mother and aims to protect the child in their security, health, and morality. On the other hand, Article 373-2 states that the parents' separation has no impact on the rules for exercising parental authority.
In most European countries, both legislatively and judicially, there is a common goal of achieving equality between mother and father. Parental agreement is encouraged and facilitated by the implementation of mediation, among other measures.
It thus appears from these different national legislations that there is a significant and very positive movement towards increasingly affirmed co-parenting at the European level. This evolution is all the more decisive considering the child's best interest, as one cannot deny one parent the rights and duties recognized in the other.
In Germany, parental authority is exercised jointly within married couples, and the German language uses a very similar term to the French word to describe this notion. Prior to the July 18, 1979 law, codified in the German Civil Code, parental authority was exclusively allocated to the parent awarded child custody.
The 1979 law also distinguished Germany from other European countries by introducing the possibility of joint parental authority for children born out of wedlock, where previously only the mother held this authority. While this constitutes a significant advancement, it only allows for joint parental authority in two cases: when a comprehensive agreement is reached with the mother and a declaration to that effect is registered. In the event of the parents' marriage, which German law then equates to "repentance," they can then jointly exercise parental authority.
The Danish legislation presents a peculiarity. During the marriage, parental authority is very classically exercised jointly by both parents. In the event of divorce or separation, they are allowed to reach an agreement to continue this joint exercise of parental authority, which must be registered by a local administrative authority. Thus, it is not a court that is competent, and it suffices to register a private agreement. Regarding children born out of wedlock, the legislation explicitly states that parental authority is exercised solely by the mother, unless otherwise agreed by the parents. No exceptions are possible.
In Belgium and the Netherlands, the legislator does not distinguish between married or unmarried couples: in both cases, parental authority is exercised jointly, and this state of affairs survives any separation.
Spain and Italy operate roughly on the same model: joint parental authority is granted by law not only to married couples but also to cohabiting partners whose relationship is recognized by simple cohabitation.
In Greece, during the marriage, parents are required to provide the child with the attention and care arising from the usual parental duties. In Greek law, the term used is not "parental authority" but "parental care." In the event of divorce, prolonged interruption of cohabitation, or annulment of the marriage, the court can jointly grant parental care to both spouses, provided they agree on an arrangement setting the minor's habitual residence. A father who recognizes a child born out of wedlock automatically acquires the rights and duties arising from parental care, but can only exercise them if the mother has herself ceased to do so. It is therefore a virtual recognition for the father, subordinated to the mother’s renunciation of the right she is primarily granted.
It is thus clear that the notion of joint parental authority, both during the parents' cohabitation and after separation, has two objectives: the child's best interest in having access to both parents and the equality of parental rights.

Consequences on the International Level
This legal rule has implications on the international level, particularly regarding the application of the Hague Convention of October 25, 1980, on the Civil Aspects of International Child Abduction.
The Hague Convention of October 25, 1980, is based on the child's best interest, defined in the preamble as the necessity to: "Protect the child from the harmful effects of wrongful removal or retention and to establish procedures to ensure the child's prompt return to the state of habitual residence."
Professor Pérez-Vera notes in her introductory report: "Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe states that children should no longer be considered as the property of their parents but recognized as individuals with their own rights and needs."(32)
The convention establishes collaboration among signatory countries to ensure, as swiftly as possible, the return of children taken to another signatory country by one parent, or wrongfully retained in the so-called "refuge" country. The return decision is by no means a final decision on the child's habitual residence or the allocation of parental authority. It is up to either party to petition the court of the child's habitual residence for such a decision if desired. Article 3(a) of the Hague Convention states that the right of "custody" should be understood according to the applicable law in the state of the child's habitual residence. Thus, the notion of "custody" derives from applicable law and the parents' rights, even when no decision fixes the child's residence.

Franco-German Litigation of the 1990s/2000s
France experienced significant litigation with Germany, which the media covered intensely. On July 16, 1998, the French newspaper Le Monde headlined, "Child Abductions Among Franco-German Couples Remain Unresolved." (33) The newspaper Libération headlined on December 2, 2018, "Germany, the Country Where International Child Abduction Is Legal."(34)
The European Parliament, in its resolution 2018/2856(RSP) of November 29, 2018, reminded Germany of the necessity to respect international law and emphasized "the importance of close cooperation and effective communication between various national and local authorities involved in child custody proceedings, from social services to judicial and central authorities." (35)
It took several years before French and German courts trusted each other and applied international law and conventions without prejudice to each nation's domestic law.
The US Supreme Court in 2009 emphasized "the importance of judicial neutrality, noting that judges should strive not to follow the common tendency to prefer their own society and culture."(36)

III. Conclusion

The evolution of parental authority through the lens of the minor child shows a trend towards increased recognition of children's rights and autonomy. Recent legislative reforms and judicial decisions, both in Europe and Japan, reflect this progress. Challenges remain, particularly in balancing protection and autonomy, but current advances lay the groundwork for a fairer and more respectful framework for children's rights in decisions affecting them.
This is the central issue of the reform in Japan, which signed and ratified the Hague Convention in 2014, and this approach must be supported in the best interest of children to have access to both parents, as well as both families and cultures.
The European Court of Human Rights reaffirms this principle: international conventions on children's rights must be applied with mutual trust, and each signatory state must act positively to respect its international commitments.
The case of Verhoeven v. France, judged by the European Court of Human Rights, highlights the challenges in applying the Hague Convention on the Civil Aspects of International Child Abduction. In this case, French courts ordered the return of a child to Japan, despite the mother's allegations of risks of violence and severing of family ties (37).
The Court concluded that there was no violation of the right to respect for family life, as the French courts' decisions were justified and aimed at the child's best interest. This decision underscores the importance of fair procedures and considering all aspects of the child's well-being in international abduction cases.
Mutual trust should allow for the free movement of children.
As Khalil Gibran aptly wrote, "Your children are not your children. They are the sons and daughters of Life's longing for itself. They come through you but not from you, and though they are with you, yet they belong not to you."

By Hansu YALAZ,
Partner at Chauveau Mulon et Associés,
Member of the International Association of Lawyers
Member of the Institute of Family and Heritage Law
Expert in Private International Law with Womenforwomen
Trained in collaborative law and arbitration

Paris, France

By Yohei SUDA,
Attorney at Law
Tokyo Bar Association
Member of the International Association of Lawyers
Tokyo, Japan

By Vinciane GILLET,
Lawyer at GILLET-LEX
Deputy Director of Communications at the International Association of Lawyers
Certified Specialist in Private International Law and Family Law - Trained in collaborative law
President of the Private International Law Commission of the Brussels Bar
Quality Expert for at the CCBE
Member of the FBE's Equality Commission
Founder of the European Incubator of the Brussels Bar
Former member of the French Bar Council of Brussels
Brussels, Belgium

(1) Former Civil Code (Japan), Article 877, Paragraph 1 (repealed by Law No. 222 of 1947).
(2) Civil Code (Japan), Article 819.
(3) Civil Code (Japan), Article 766 (as amended by Law No. 61 in 2011).
(4) Ministry of Foreign Affairs (Japan), Overview of the Hague Convention and Related Legal Systems, November 22, 2022.
(5) The Supreme Court of Japan issued a decision on March 28, 2013, stating that the indirect enforcement of visitation rights is possible only when the date, time, or frequency of visitation, the duration of each visitation session, and the method of handing over the child are specifically stipulated. See Saikō Saibansho [Sup.Ct.] March 28, 2013, 67 Saikō Saibansho minji hanreishū [Minshū] Vol. 3, 864 (Japan). In the vast majority of cases, there are no such stipulations. The success rate of enforcing court orders for the return of the child as of March 31, 2020, was 44%. See Ministry of Foreign Affairs, Status of Implementation of the Hague Convention (Convention on the Civil Aspects of International Child Abduction), April 1, 2024.
(6)Resolution of the European Parliament of July 8, 2020, on International and National Parental Child Abduction of EU Children to Japan (2020/2621(RSP)).
(7)Ministry of Justice, Provisional Minutes of the 37th Meeting of the Family Law Subcommittee of the Legislative Council, January 30, 2024.
(8) Amended Civil Code (Japan), Article 817-12, Paragraph 2.
(9) Ibid., Article 819, Paragraph 1.
(10) Ibid., Article 819, Paragraph 2.
(11) Ibid., Article 819, Paragraph 7.
(12) Ibid., Article 819, Paragraph 7.
(13) Ibid., Article 765
(14) Ibid., Article 824-2, Paragraph 7.
(16)Ibid., Article 824-2, Paragraph 2.
(17)Ibid., Article 824-2, Paragraph 3.
(18)Nippon Hoso Kyokai (NHK: Japan Broadcasting Corporation), "Joint Parental Authority": Detailed Explanations on Issues Requiring Consent and Rules Related to Child Support and Visitation Rights, as well as What to Do if the Divorce Is Already Finalized, May 17, 2024.
(20)Judicial Committee of the House of Councillors of the Japanese Diet, Supplementary Resolution to a Bill Amending Part of the Civil Code, etc., May 16, 2024.
(21)Amended Civil Code (Japan), Article 819, Paragraphs 6 and 8.
(22) Ibid., Article 766, Paragraph 1.
(23)Ibid., Article 766, Paragraph 2.

(24)Ibid., Article 824-3, Paragraph 1.

  (25)Ibid., Article 824-3, Paragraph 2.
  (26)Ibid., Article 766-2. Regarding the visitation rights of an abandoned parent and other close relatives before the divorce, there are similar provisions in Article 817-13. Ibid., Article 817-13.
  (27)Remarks by Tsutomu Takeuchi, Director-General of the Civil Affairs Bureau of the Ministry of Justice, at the Judicial Committee of the House of Representatives of the Japanese Diet on April 2, 2024; Remarks by Tsutomu Takeuchi, Director-General of the Civil Affairs Bureau of the Ministry of Justice, at the Judicial Committee of the House of Representatives of the Japanese Diet on April 5, 2024.
  (29) Remarks by Ryuji Koizumi, Minister of Justice, at the Judicial Committee of the House of Councillors of the Japanese Diet on May 9, 2024.
  (30) Remarks by Tsutomu Takeuchi, Director-General of the Civil Affairs Bureau of the Ministry of Justice, at the Judicial Committee of the House of Representatives of the Japanese Diet on April 5, 2024.
  (31) Remarks by Tsutomu Takeuchi, Director-General of the Civil Affairs Bureau of the Ministry of Justice, at the Judicial Committee of the House of Representatives of the Japanese Diet on April 2, 2024; Remarks by Ryuji Koizumi, Minister of Justice, before the Judicial Committee of the House of Representatives of the Japanese Diet on April 9, 2024.
  (32) Excerpt from the Report, page 431, Paragraph 24.

(36) Abbott v. Abbott, Supreme Court of the USA, June 29, 2009.
(37) ECtHR Verhoeven v. France, March 28, 2024, Application No. 19664/20.