[translation]

OPINIONS
3 June, 2018

We are writing to clarify that it is possible for a Japanese child to be transferred

to prospective adoptive parents, based on the birth parent ’s consent, and for the
adoption to be successfully finalized in the Supreme Court of British Columbia ,
Canada.

1. In Japan, “a child who has not yet come of age shall be subject to the parental
authority of the child’s parents” (Civil Code Article 818 Paragraph 1), and is
placed under the care of the parents. When adoption is finalized, an adopted
child “shall be subject to the parental authority of the child’s adoptive parents”
(Civil Code Article 818 Paragraph 2). And “a person who exercises parental
authority shall have the right, and bear the duty, to care for and educate the child
for the child’s interests” (Civil Code Article 820).

2 In case of non-special adoption of a minor, “permission of the family court shall

be obtained” pursuant to Civil Code Article 798, and the filing of the notification
of such permission establishes adoption (Civil Code Articles 799 and 739 and
Family Register Act Article 38 Paragraph 2 and Article 66). The child will now
be subject to the parental authority of the adoptive parents , and the parental
authority of the child’s biological parents is now terminated, followed by the
adoptive parents now having the right to care for the child.

In case of special adoption, filed in Japan, a decree of the family court creates
an adoptive parents-adoptive child relationship. As a result, the child will now
be subject to the parental authority of the adoptive parents and the adoptive
parents will now have the right to care for the child, and the family relationship
between the adopted child and the child’s biological parents is “extinguished by
a ruling of special adoption” (Civil Code Article 817 Paragraph 9).

3. A person with parental authority and a person with the right to provide care are
the same in principle. An exception can be seen in case of a divorce where one
of the parents is designated to be the person with parental authority and the other
parent is designated to be the person with the right to provide care, but s uch a
case is extremely rare. It should be noted that, in Japan, only one parent can
exercise parental authority in case of a divorce.
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 As stated above, the right to provide care is a legal right possessed by parents
who are the persons with parental authority (biological parent(s) and adoptive
parent(s). Although parental authority can be lost due to abuse, etc., (Civil
Code Article 834) and the right to provide care can be lost as a result, the
Japanese law is not designed to designate a third party ot her than a parent(s) to
be the person with the right to provide care or to transfer (or assign) the same to
any third party.

4. However, it is possible for biological parents to enter into a valid contract with
the persons wishing to be adoptive parents whereby the former entrusts the latter
with the care of the subject child for a certain period of time to observe
compatibility between the child and the candidate adoptive parents for the
purpose of adoption at the end.

In Japan, part of the procedural requirements for special adoption p rovides that
the family court “shall consider the circumstances of not less than 6 months of
the care given to the subject child by the person(s) to become adoptive parent(s) ”
in making a ruling of special adoption (a trial period: Civil Code Article 817
Paragraph 8). It is possible to serve the pre-adoption care period in British
Columbia.

The aforementioned contract does not require permission of the family court
because the contract is strictly for the purpose of entrusting care of the subject
child temporarily based on the premise that parental authority and the right to
provide care remain in the child’s biological parents, until the adoption is
finalized. Pursuant to this contract the child can travel to British Columbia to be
adopted. The birth parent’s parental rights are terminated by the final adoption
order, which can be obtained in British Columbia.

5. In Japan, there is no law whatsoever that prohibits foreign nationals from

adopting children of Japanese nationality.

6. If a foreign national files for permission with a foreign court for special adoption
of a child of Japanese nationality, and obtains approval, he/she can make changes
to the applicable Japanese family register by presenting such court’s decision of
permission (Code of Civil Procedure Article 118 Paragraph 1 and Paragraph 3:
Honoring a Judgment Rendered by a Foreign Court). Thus, the final adoption
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 order obtained in British Columbia has legal effect in Japan.

In such a case as above, the content of the permission rendered by the foreign
court must “not be contrary to public policy in Japan. ” The public policy here
means in part such a requirement as compliance with the test period of not less
than 6 months (Civil Code Article 817 Paragraph 8).

Because a test period is still necessary to ascertain compatibility between the

subject child and the candidate adoptive parents, the candidate adoptive parents
can place the subject child under their care via the aforementioned contract for
provision of care, but there is no need for a Japanese court ’s permission in this
case.

Authors

1. Yasuyuki Muraoka
Title: Attorney at Law, member of Osaka Bar Association
Education: Kyoto University School of Law, B.A. in Law
Employment: family court judge for 10 years
Titles held at family courts: Yamaguchi Family Court Chief Judge, Osaka
Family Court Senior Judge
Work experience as judge: numerous special adoption cases, including
special adoption cases involving foreign nationals and Japanese
children
Work experience as attorney at law: parent-child identification cases
involving DNA testing

2. Masaki Matsukawa
Title: Professor Emeritus, Osaka University; Professor, Osaka Gakuin
University; Attorney at Law
Education: Kobe University Graduate School Legal Studies Department
Doctoral Course First Term (Master’s Course), M.A. in Law;
First University of Toulouse (in France) Doctoral Course (Ph.D. in
Law)
Published works: Civil Code Family Succession Law Ver. 5 (2018),
Yuhikaku Alma Publishing; Medical Advances and Parent-Child Law
(2008), Yuhikaku Publishing, and numerous other published works