48. The Constitution of Japan states, in paragraph 1 of Article 14, that "All of the people... there shall be no discrimination... because of race, creed, sex, social status or family origin.," guaranteeing the equality of all of the people, including children, under the law. Under this principle "the equality under the law," all forms of discrimination against children by public authorities are prohibited.
49. In accordance with the provision of the Constitution, the Child Welfare Law states that "the life of each and every child shall equally be guaranteed and protected." In addition, all forms of discrimination against children by public authorities are also prohibited under stipulations of other national laws such as the provisions of Article 2 of the Public Assistance Law (which provides for non-discriminatory, equal protection), Article 3 of the Fundamental Law for Measures for Mentally and Physically Handicapped Persons (guaranteeing the equal treatment of all disabled persons) and paragraph 1 of Article 3 of the Fundamental Law of Education (which prescribes equal opportunity of education).
50. Children of foreign or no nationality living in Japan are also guaranteed fundamental human rights under the Constitution of Japan, with the exception of rights that, owing to their nature, are interpreted to be applicable only to Japanese nationals. There are no nationality requirements in the provisions of the Child Allowance Law, the Child Rearing Allowance Law and the Special Child Rearing Allowance Law, etc. As for education, moreover, the Government endeavors to ensure that each and every child has an opportunity to receive education, in compliance with the provisions of the Constitution and the Fundamental Law of Education. Foreign children, however, may have difficulties receiving education and welfare services because of insufficient Japanese language ability. To solve this problem, the Government encourages local governments to furnish information in foreign languages by distributing pamphlets written in foreign languages and establishing special consultation offices for foreigners. The Government, moreover, applies measures to teach Japanese language and give advice regarding everyday life and studies.
51. In cases where discrimination between individuals is found, the civil liberties organs of the Ministry of Justice are to promptly implement pertinent measures for remedy. In private-law, if such an act is found to be unlawful under the Civil Code, the person who performed the act will be held liable for damages. In cases where the discriminatory act runs contrary to public policy or good morals as referred to in Article 90 of the Civil Code, which is a provision restricting personal autonomy in general, the act may be null and void. If the discriminatory act infringes penal statutes, the offender will be punished.
52. What is important, however, is that discrimination against a child deeply affects the development of his/her personality. In other words, there should be no discrimination whatsoever in order to ensure the full and balanced development of the child's personality. To this end, the Government has been educating students, through all school educational activities, particularly in social studies and moral education, to respect human rights, to neither discriminate nor have prejudice against anyone, and to understand correctly questions of human rights including the dowa issue. In universities or colleges, students continue to deepen their knowledge and understanding on human rights through seminars on humanities and social sciences. Furthermore, various educational activities such as classes or lessons on human rights have been conducted in public halls, in accordance with the report of the Lifelong Education Council in which "human rights" is identified as an important subject of study in contemporary social studies. Both the Government and the people, in this way, should continue to strive together to educate the people and raise public awareness of the rights of children, so that the dignity of every child is respected and fundamental human rights are enjoyed by children parallel.
53. Japan concluded the International Convention on the Elimination of All Forms of Racial Discrimination on December 15, 1995. It entered into force for Japan on January 14, 1996.
Best Interests of the Child
54. Article 13 of the Constitution stipulates that "all of the people shall be respected as individuals." Article 1 of the Child Welfare Law prescribes that "all of the people shall strive to ensure the sound birth and growth of children, both in mind and body." Other than these, Articles 2 and 3 of the Child Welfare Law, Article 1 of the Juvenile Law, and Article 3 of the Maternal and Child Health Law assume that a child's best interest is to be considered in each individual case.
Provision of Protection and Aid
55. In Japan, the family is considered the natural environment for the growth and welfare of children as well as other family members. Parents or legal guardians are regarded as having prime responsibility for the child's upbringing and development. The Government provides supplementary aid, if necessary, for parents in fulfilling their responsibility, and ensures protection and care essential for children by taking care, to neither infringe the rights nor affect the obligations of parents.
Standards for Safety and Health and Criteria for the Number and Suitability of Staff
56. In Japan, the following child welfare facilities (see table 4) are available. With regard to these facilities, the Minimum Standards for Child Welfare Facilities on Equipment and Management (Ministerial Ordinance) provided by the Minister of Health and Welfare prescribes the standards for safety and health, in addition to those for the number and suitability of the staff. Pursuant to the Child Welfare Law, founders of these facilities are obliged to conform to the standards.
57. The Minimum Standards address: general rules for the construction and equipment for child welfare facilities, emergency/disasters, general requirements for personnel, sanitation control, meal, medical examination for inmates and employees, etc. (in Chapter 1, General Provisions); and equipment standards for respective child welfare facilities and criteria for the number and competence (qualification) of personnel, etc. (from Chapters 2 to 10 inclusive). According to the Minimum Standards, nurseries, for instance, are required to post at least one nursery governess for every 6 children and to install alarm system and facilities to prevent children from falling. Moreover, the guidelines for center-based day-care, which are instructive for nurseries in providing day-care services, seek to: support children; promote their emotional stability; maintain their mental and physical health; respect their rights; enhance their autonomy; and encourage harmony among them. The Guidelines require nurseries to practice day-care and furnish an environment suitable for achieving those goals.
58. Provisions also require that directors and persons in charge of management are to be identified upon requesting permission to establish a facility. To maintain the Minimum Standards, administrative agencies may: demand the head of child welfare facilities to submit reports; enter the facilities; examine the equipment; recommend/order necessary improvements; and order the suspension of operation.
(Table 4: TRENDS IN CHILD WELFARE FACILITIES)
| 1965 | 1975 | 1985 | 1990 | 1993 | 1994 | |
| Child Welfare Facilities | 14,020 | 24,546 | 33,309 | 33,176 | 33,242 | 33,234 |
| Maternity clinics | 479 | 1,032 | 780 | 635 | 588 | 574 |
| Infant homes | 127 | 129 | 122 | 118 | 117 | 117 |
| Mothers' homes | 621 | 424 | 348 | 327 | 315 | 312 |
| Day-care centers | 11,199 | 18,238 | 22,899 | 22,703 | 22,584 | 22,526 |
| Protective institutions | 546 | 525 | 538 | 533 | 530 | 529 |
| Homes for mentally retarded children | 219 | 349 | 321 | 307 | 300 | 297 |
| Homes for autistic children | - | - | 8 | 8 | 7 | 7 |
| Schools for mentally retarded children | 56 | 175 | 218 | 215 | 217 | 222 |
| Nursery homes | 32 | 32 | 28 | 21 | 21 | 20 |
| Facilities for children with auditory/speech disabilities | 38 | 34 | 24 | 18 | 17 | 17 |
| Facilities for children with hearing difficulties | - | - | 23 | 27 | 26 | 26 |
| Facilities for physically weak children | 32 | 34 | 34 | 33 | 33 | 33 |
| Homes for physically handicapped children | 62 | 77 | 74 | 72 | 72 | 70 |
| Schools for physically handicapped children | - | 39 | 70 | 73 | 77 | 79 |
| Hospital-homes for physically handicapped children | - | - | 8 | 8 | 9 | 8 |
| Facilities for severely handicapped children | 3 | 39 | 56 | 65 | 73 | 76 |
| Short-term clinics for emotionally disturbed children | 4 | 10 | 11 | 13 | 14 | 16 |
| Home for juvenile training and education | 58 | 58 | 57 | 57 | 57 | 57 |
| Children's halls | 544 | 2,117 | 3,517 | 3,840 | 4,028 | 4,081 |
| Recreation centers for children | - | 3,234 | 4,173 | 4,103 | 4,157 | 4,167 |
The Right to Life
59. Article 31 of the Constitution prescribes that "no person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedures established by law," guaranteeing the inherent right of all people, including children, to life.
Survival and Development
60. Article 25 of the Constitution stipulates that all people shall have the right to maintain the minimum standards of living, ensuring the right of all people, including children, to live. Furthermore, paragraph 2 of Article 1 of the Child Welfare Law provides that "the life of each and every child shall equally be guaranteed and protected," and Article 3 of the Maternity and Child Health Law prescribes that "in order to ensure the sound growth of infants and toddlers, both in mind and body, their health shall be maintained and enhanced." According to those provisions and other relevant domestic laws, the Government has been implementing various measures to ensure the survival and development of children, which have been consolidated every year. (For the substance of measures, refer to VI A. and C.)
61. In Japan, the Constitution prescribes respect for the dignity of individuals in Article 13, freedom of thought and conscience in Article 19, and freedom of expression in Article 21. Thus, the child's right to express views freely in all matters affecting them is guaranteed.
62. With regard to all matters on which anyone is generally guaranteed the opportunity to be heard in any proceedings of a judicial and administrative decision or measure affecting him/herself, the child is also provided the opportunity to present his/her view, as described below. When decisions are to be made or measures are to be taken on such matters, utmost consideration is paid to the child's best interests.
Judicial Proceedings
63. In Japan, anyone who is a party to, or an interested person in a trial is guaranteed the opportunity to present his/her views.
(a) Civil Procedures and Civil Conciliation
64. As minors have no litigation capacity in civil suits, a legal representative is required to take procedural action (Article 49, The Code of Civil Procedure). Accordingly, in cases where a minor is a party to litigation, he/she may act as a party through a legal representative and express his/her views. In cases where the minor is not a party to litigation but has a legal interest in the outcome of the proceedings, he/she may participate in the litigation as a supplementary intervener, conduct proceedings and present his/her views through the legal representative. In civil conciliation, a minor may present his/her views as a party or a supplementary intervener through a legal representative.
(b) Actions Relating to Personal Status, Family Trials, and Family Conciliation
65. In actions relating to personal status, a minor is considered to be competent to stand trial if he/she is mentally fit. Provided that the minor has the capacity to act, he/she may present his/her views as a party or a supplementary intervener, directly or through a legal representative.
In family trials and family conciliation, a minor may, provided that he/she is mentally fit, similarly present his/her views as a party or a supplementary intervener, directly or through a legal representative. As for family trials, the child's statement must be heard if he/she is 15 full years of age or over, in trials on the custody of children upon divorce of parents or recognition, etc., and trials on cases involving the designation or change of the person in parental authority. In other cases, or if the child is less than 15 full years of age, the Family Court may hear the child's view ex officio, and there is nothing to impede the child from presenting his/her view voluntarily if he/she wishes to do so.
(c) Criminal Action and Juvenile Trials
66. In juvenile trials, the juvenile, his/her guardian and attendant must be summoned on the day of trial (paragraph 2 of Article 25, The Rules of Juvenile Proceeding), and the guardian as well as attendant may express his/her views at the trial after obtaining permission from the judge (Article 30 of the said Rules). In addition, the juvenile's relatives, teachers and other persons considered appropriate may be permitted to be present at the trial (Article 29 of the said Rules). As the hearing is, in this way, to be conducted in a relaxed and warm atmosphere (paragraph 1 of Article 22, the Juvenile Law), careful attention is paid to ensure that the juvenile and his/her guardian, etc. can make statements in a conducive atmosphere. There are provisions for recording the substance of the statement made by the juvenile and others, assuming that juveniles, etc. are afforded opportunities to express their views (Articles 12 and 33 of the said Rules).
If a juvenile commits a crime, under the Juvenile Law and other laws, the case is to be dealt with by a Family Court which considers whether to take protective measures or not. Only if the person in question is 16 years of age and over and commits an offence punishable by death penalty, or penal servitude or imprisonment, and it is judged necessary for him/her to be tried under the criminal measure, the case may be transferred to undergo criminal procedures. The Code of Criminal Procedure stipulates that the accused and the counsel shall be afforded the opportunity to make a statement on the defendant's case in the opening procedures and that the accused and the counsel may state their views upon completion of the examination of evidence. Furthermore, in the event that the accused makes a statement voluntarily, the judge may require the defendant's statement at any time.
Administrative Procedures
67. In Japan, before the dispositions are to be taken, the Administrative Procedure Law guarantees, in principle, opportunities for hearing statements of opinion or for explanation and rebuttal of adverse dispositions. Under the Administrative Appeal Law, means to appeal are also recognized ex post facto against administrative dispositions (excluding the appeal against adverse dispositions taken through the procedure of hearing statements of opinion). In this way, the opportunity to have opinions heard is guaranteed. In addition, the opportunity to be heard is also ensured under the provisions for procedures on administrative dispositions and measures respectively.
(a) Education
68. As for the method of education for disabled children, it is firstly considered by the Commission for the Encouragement of School Attendance in view of the child's educational, psychological and medical backgrounds, and then, the board of education decides it on the basis of the Commission's consideration, after hearing the opinion of the guardian and the like through schooling consultation, etc.
69. The Government has sent notices to educational institutions to ensure that, in taking disciplinary action, the action has real educational effects instead of just serving as a sanction, and that full attention is paid to the student's condition individually with an opportunity to listen to the student carefully about the situation and his/her views.
(b) Welfare
70. No child shall be sent to prefectural child welfare facilities against the will of the person in parental authority or the guardian (paragraph 4 of Article 27 of the Child Welfare Law). Child Guidance Centers shall investigate, diagnose and evaluate the child's condition by having an interview with the child or his/her guardian, and to give sufficient consideration to the child or the guardian's opinion when determining the action specifically, as provided for in the Management Guidelines for Child Guidance Centers. In case of canceling of the admission of a child to day-care centers or homes for mentally retarded children, the governor, mayor, head of the welfare office and the chief of the Child Guidance Center shall, in advance, give an explanation of the reasons for the cancellation to the child's guardian and give heed to their views (paragraph 4 of Article 33 of the Child Welfare Law).
(c) Correction
71. In correctional institutions, the opinions of the child concerned are heard when taking procedures affecting the child. For instance, a child is to be punished or disciplined, the child is informed in person of the suspected facts of the act violating the regulations and is afforded the opportunity to plead his/her case.