Resolution Calling for Improving and Enhancing the Functions of Family Courts to Protect the Human Rights of Local Residents including Children, Older Persons, and Persons with Disabilities

• 日本語版 (Japanese)

Family courts are courts that handle (a) domestic disputes between family members or relatives such as issues between spouses, or parents and their children, as well as issues regarding dividing an inheritance or adult guardianship (hereinafter referred to as “domestic relations cases”) and (b) juvenile and other cases. Family courts exist in 50 locations with 203 branches and 77 local offices of such courts throughout the country. As for domestic relations cases, any person can become a party to one at any time. When residents are faced with issues that cannot be resolved between the parties alone, such residents turn to their local family court, whether it be a central office, branch, or local office. In that sense, local family courts serve as the last bastion of human rights including the right of access to justice for residents.

In recent years, the total number of cases handled by family courts has been on the rise across the country due to Japan’s rapidly declining birthrate and aging society, as well as changes in social conditions surrounding families and personal values. In 2021, the total number of cases filed at family courts reached a record high of 1,150,372 cases, up by 4.1% from the previous year. Furthermore, it has been reported that there are a growing number of cases in which the trial lasts for an extended period of time due to complex and difficult circumstances involved in the case. As for cases reflecting social conditions surrounding families, child guidance centers across the country handled a record high of 207,600 abuse claims in 2021. There has been an endless series of young children losing their lives due to horrible abuse before they could become old enough to understand the rights to which they are entitled. After the 2019 death of a seven-year-old child who was receiving in-home services after a family court rejected a petition filed pursuant to Article 28 of the Child Welfare Act, a committee tasked with reviewing the case, while recognizing it as a child abuse case, pointed out the necessity of enhancing a welfare standpoint in judgments handed down by courts. In the meantime, it has been reported that there are more than 4,200,000 people who may need support to protect their rights from a welfare point of view or through the adult guardianship system. However, the actual operation of the adult guardianship system has not caught up with the ideal it aims for, resulting in the number of users of the system remaining around 240,000 as of 2022.

Given these circumstances, family courts are being called on to protect the best interests of the child as much as possible in all proceedings affecting the child. In recent years, judicial involvement in responding to child abuse have been expanded. Furthermore, as for efforts to promote the use of the adult guardianship system, it is expected that such efforts will be promoted through regional cooperation networks in collaboration with family courts, related administrative organs, local governments, professional organizations, private organizations, and others, further expanding the role to be played by local family courts.

However, there is a concern that local family courts are not necessarily playing an adequate role in protecting the human rights of residents due to their insufficient human and physical infrastructure. Although courts are one of the three branches of the state power, the proportion of the budget allocated to courts in the national budget is less than 1%, remaining at a mere 0.3% of the national budget. In this fiscal year's initial budget, the percentage fell below 0.3% for the first time, dropping to about 0.282%. Despite the significant increase in domestic relations cases, due to a lack of sufficient effort to increase the number of judges at family courts accordingly, judges specialized in domestic relations cases and juvenile cases are only assigned to the central offices and large branches of such courts. Even at branches with full-time judges serving at the locations, such judges also have to cover civil and criminal cases. Many branches and local offices of family courts do not have full-time judges serving at the locations and rely on those who are supplemented by other offices.

Furthermore, it is expected that family court evaluators, who have academic knowledge in fields including behavioral science, are actively involved in proceedings of such courts. However, due to a severe lack of evaluators, the burden on each evaluator is large, making it impossible for them to devote enough time and effort to evaluate each case. Many branches and local offices of family courts do not have such evaluators serving full-time at the locations, causing matters, such as child custody, as well as conditions regarding visitation in some divorce cases, to be decided without sufficiently conferring with the child. It is also not uncommon that proceedings in some adult guardianship cases proceed without hearing from the person for whom the petition for such guardianship was filed. Despite the difficult circumstances faced by evaluators, the hiring capacity for evaluators has only increased by two positions over the last 14 years. This is in contrast to the government's effort to increase the number of child welfare officers and child psychologists hired by child guidance centers by more than 3,000 in total over the last five years and further increase by about 2,000 over the four years beginning in fiscal year 2023.

In addition, as for the physical infrastructure of family courts, many such courts are not equipped with facilities to be used to hear opinions from the child and conduct trial visitation, such as a children's room where the child can spend time while feeling safe. Furthermore, the accessibility of many such courts’ buildings is insufficient for older persons and persons with disabilities due to a lack of improvements, such as installing elevators to make such buildings barrier-free.

Under the current state of family courts, residents’ right to trial and access to courts are not sufficiently protected, leaving particular concerns over protecting the child’s right to express their views freely on all matters affecting the child, as well as the insufficient operation of supported decision-making for users of the adult guardianship system.

On April 1, 2023, the Children and Families Agency, a first-of-its-kind government agency in Japan tasked with implementing policies related to children in a comprehensive and integrated manner, was established. The government stated that the aim of establishing the Agency was to prioritize children's best interests on a consistent basis; realize a society that recognizes children as having rights; and support their healthy growth while leaving no one behind. Local family courts’ functions, as a member of society, need to be enhanced and improved in a way that prioritizes children's best interests. Such courts handle issues that are important for the parties involved and other affected people, and decisions made by such courts can be a major turning point in their lives. In some cases, depending on how such courts respond, people may lose the opportunity to find happiness by their own decision-making, and sometimes the consequences of such decisions may even affect their lives and survival. There needs to be family courts across the country that are committed to fully protecting the rights to be enjoyed by local residents including children, older persons, and persons with disabilities, in addition to their right to trials.

In the meantime, IT adoption in the judicial system including domestic relation cases has been making a progress, which is potentially making family courts accessible for those who live far away from such courts and know how to use IT services. However, there are many procedures that take place at such courts, such as evaluating the child’s feelings and wishes, whose purpose cannot be fully accomplished by methods without face-to-face meetings in the first place. Furthermore, it is important to give consideration to residents, such as older persons and persons with disabilities, who have difficulty navigating IT services or are not used to using such services. The progress in IT adoption in the judicial system must not result in leaving some people behind. Local family courts are expected to play not only the role of public infrastructure that is the last bastion of human rights, but also a new role of being a reliable place where anyone can get access to legal services at any time as one of the “lifelines for safe and secure urban development” while supporting residents in using IT services.

The JFBA has been working hard to build readiness for providing quality legal services nationwide under its “Action Plan for National Rollout and Enhancement of Legal Services.” The JFBA is committed to continuing to actively promote the enhancement of local justice systems in cooperation with courts. However, it is imperative that courts’ functions be improved and enhanced across the country so that remedies for human rights violations and protection of residents’ rights are truly realized.

For these reasons, the JFBA calls for the government, including the Supreme Court, to implement the following measures to enhance the human and physical infrastructure of family courts; improve the operation of thereof; and prioritize allocating a sufficient budget for implementing the measures, in order to protect the human rights of all local residents including children, older persons and persons with disabilities.

1. To support local family courts in protecting the rights of residents:

1. (a)Significantly increase the number of family court judges and actively promote attorneys serving as full-time judges while improving the work environment of judges serving at courts handling a large number of cases by eliminating the practice of judges handling civil and/or criminal cases along with domestic relations cases. In addition, one or more full-time judges should be assigned to all branches of family courts as soon as possible to eliminate branches with only part-time judges serving at the locations. Furthermore, the understaffing of family courts should be improved by actively hiring attorneys to serve as court mediators.

1. (b) Significantly increase the number of family court evaluators while improving the work environment of evaluators to enable more through investigations, as well as assigning one or more evaluators to serve full-time at all branches of family courts as soon as possible to eliminate branches with only part-time evaluators.

1. (c) Establish local offices of family courts at all of the summary courts where a family court or its branch is not established while establishing a system to ensure a proper handling of domestic relations cases at all of the local offices of such courts. A system to allow the formation of regional cooperation networks in a uniform way across the country should be established as well. Furthermore, a designated desk should be established at all central offices, branches and local offices of family courts to help residents use IT services offered by such courts.

2. From the perspective of protecting the rights of children:

1. (a) Realize the proper practical operation of family courts to ensure the maximum protection of the best interests of the child as soon as possible by utilizing family court evaluators more actively in cases handled by such courts, including child custody cases, marital relations cases involving couples with minor children, and child abuse related cases. Ensure the equal protection of the child’s right to express their views regardless of where they live by actively utilizing the child representative system.

1. (b) Install children's rooms (facilities for conducting interviews with children and trial visitation) at all branches and local offices of family courts to ensure the equal protection of the child’s right to express their views regardless of where they live. In addition, an environment that allows children to receive proper support for visitation should be promptly developed.

1. (c) Expand the participation of representatives from local family courts in meetings of regional councils of countermeasures for appropriate aid or assistance for children requiring assistance in their respective jurisdictions so such courts can be involved in efforts to enhance regional coordination in preventing child abuse.

1. (d) Expand branches of family courts handling juvenile cases so a trial can take place in the area in which the child resides regardless of where they live.

3. From the perspective of protecting the rights of older persons and persons with disabilities:

1. (a) Establish a system to allow the prompt and proper identification of the mental and physical state of the person in need of or under guardianship during proceedings such as to decide on establishing guardianship and making supervisory dispositions against adult guardians and others. In addition, a system should be established to allow local family courts to work with other organs as a member of a regional cooperative network to ensure the provision of sufficient decision-making support for those who are in need, as well as sufficient remedies for human rights violations.

1. (b) Give procedural consideration to older persons and persons with disabilities to allow such persons to participate effectively in family court proceedings, such as through the use of information and communication devices and communication support tools. In addition, appropriate attention should be paid so that IT adoption does not hinder the participation of such persons in the system.

1. (c) Ensure accessibility at all courts including family courts (covering all central offices, all district courts, and local offices of such courts) to ensure equal access to judicial procedures for older persons and persons with disabilities by implementing measures including introducing the concept of universal design, which is an approach of designing cities and living environments in a way that makes them accessible to people with a wide range of abilities.

Local attorneys are essential in achieving the above recommendations and protecting the human rights of all residents, including children, older persons, and persons with disabilities. Furthermore, it is necessary for such attorneys to sufficiently play their role as a representative in proceedings and other situations. For this reason, the JFBA is also committed to making its utmost effort in cooperation with courts to resolve issues regarding attorney shortages and the imbalance thereof in some areas; support people in gaining access to justice while considering the progress in IT adoption; promote attorneys serving as judges; and enhance the human infrastructure of the judicial system.

We resolve as above.

October 6, 2023
The Japan Federation of Bar Associations