Disputes Over Daycare Center (Hoikusho) Utilization in Japan: Challenging Termination or Designation of Private Managers

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Publicly supported daycare centers, known as hoikusho (保育所) in Japan, are vital for many families, enabling parents to work or manage other responsibilities while ensuring their children receive care and early education. The provision and management of these services are primarily governed by the Child Welfare Act (児童福祉法 – Jidō Fukushi Hō) and local municipal ordinances. However, disputes can arise when parents' access to these services is terminated or when the management of a municipal daycare center is outsourced to a private entity, raising concerns about the continuity and quality of care.

This article explores two common types of legal challenges in this context: (1) contesting a municipality's decision to terminate a child's daycare enrollment, and (2) challenging a municipality's designation of a private entity as the manager of a public daycare center under the "designated manager system." These scenarios highlight important aspects of Japanese administrative law concerning administrative dispositions, eligibility criteria, and the standing of service users to sue.

(Please note: The legal framework discussed, particularly concerning the Child Welfare Act, reflects provisions in effect prior to significant amendments that came into force around and after August 2012. Current laws may differ.)

Part 1: Challenging Termination of Daycare Service

Municipalities in Japan are generally obligated under Article 24, Paragraph 1 of the Child Welfare Act to provide daycare services at a hoikusho if a guardian applies and demonstrates a need due to reasons such as work, illness, or other circumstances stipulated by local ordinance that result in the child "lacking daycare" (hoiku ni kakeru – 保育に欠ける).

Scenario: Termination of Service for a Law School Graduate Studying for the Bar Exam

Consider a parent (S₁), a law school graduate, whose child (S₂) has been enrolled in a municipal daycare center. As S₁ approaches graduation, the city informs her that her child's daycare will be terminated at the end of March because, upon graduation, S₁ will no longer be "attending school" (通学 – tsūgaku), a recognized ground for needing daycare under the city's ordinance. The city's internal daycare admission guidelines (保育所入所基準要綱 – hoikusho nyūsho kijun yōkō) specify "currently enrolled and regularly attending a school" as fulfilling this criterion.

However, S₁ intends to become a kenshūsei (研修生 – a trainee or research student, a common status for recent graduates intensively studying for professional exams like the bar) at the law school, which involves full-time study using university facilities, just as during her formal enrollment. She argues that this situation still constitutes "lacking daycare" and that the termination is unlawful.

Is Termination of Daycare an Actionable "Administrative Disposition"?

Before considering the merits, it's crucial to determine if the city's "termination of daycare service" (hoiku no jisshi no kaijo – 保育の実施の解除) is an administrative disposition (行政処分 – gyōsei shobun) subject to a revocation suit, or merely a termination of a contractual relationship.

Several factors strongly suggest it is an administrative disposition:

  1. Statutory Procedural Requirements: Article 33-4 of the Child Welfare Act (prior to its 2012 amendments) required municipalities to explain the reasons and hear the opinions of the guardian before terminating daycare services.
  2. APA Exemption: Article 33-5 of the same Act exempted such terminations from most of Chapter 3 (Adverse Dispositions) of the Administrative Procedure Act (APA), except for Article 12 (Establishment and Publication of Disposition Standards) and Article 14 (Showing of Reasons). If the termination were not a disposition to begin with, this specific partial exemption from the APA's adverse disposition rules would be superfluous.
  3. Public Law Nature of Fees: Article 56, Paragraph 10 of the Child Welfare Act allowed municipalities to collect unpaid daycare fees using the same procedures as for delinquent local taxes, indicating a public law relationship rather than a private contractual one.
  4. Administrative Appeal Instructions: Often, official notices of daycare termination include instructions on how to file an administrative appeal (審査請求 – shinsa seikyū) under the Administrative Complaint Review Act, which is a procedure applicable to administrative dispositions.

Given these points, the termination of daycare service is properly characterized as an adverse administrative disposition.

S₁ can file a revocation suit (取消訴訟 – torikeshi soshō) under the Administrative Case Litigation Act (ACLA) against the termination decision. The defendant would be the municipality (Otsu City in the hypothetical scenario, as the welfare office director who issued the notice acts on behalf of the city). S₁, as the direct recipient of the adverse disposition affecting her child's care, clearly has standing.

The primary ground for challenging the termination would be a misinterpretation or misapplication of the eligibility criterion of "lacking daycare" as defined by the Child Welfare Act and the relevant municipal ordinances.

  • The Catch-All Provision: While S₁ might no longer be "attending school" in the narrow sense defined by the city's internal guidelines, the municipal ordinance likely contains a catch-all provision for situations "similar to the preceding items" (e.g., the hypothetical Otsu City Childcare Implementation Ordinance Article 2, Item 7).
  • Substantive Need: S₁ would argue that her status as a kenshūsei engaged in intensive, full-time study for the bar examination is functionally equivalent to full-time employment or formal schooling in terms of her inability to provide daytime care for her child. Her need for daycare remains undiminished.
  • Nature of Internal Guidelines: The city's internal admission guidelines (yōkō) are not laws or ordinances themselves. They are internal administrative standards intended to ensure consistent application of the law but cannot exhaustively cover every unique situation. They should not be applied so rigidly as to defeat the purpose of the Child Welfare Act and the local ordinance, which is to provide daycare to children who genuinely "lack care" due to their guardians' circumstances. S₁’s situation arguably fits the spirit and intent of the law, even if not explicitly detailed in the yōkō.

The court would need to determine if the city's narrow interpretation of its ordinance and guidelines, leading to S₁'s disqualification, was a reasonable application of the law or an overly formalistic one that ignored her substantive need for continued daycare.

Part 2: Challenging the Designation of a Private Manager for a Municipal Daycare

Municipalities in Japan can entrust the management of public facilities, including daycare centers, to private entities (corporations, social welfare organizations, etc.) under the "designated manager system" (shitei kanrisha seido – 指定管理者制度) established by Article 244-2 of the Local Autonomy Act (地方自治法 – Chihō Jichi Hō). This is often done to improve efficiency or reduce costs.

Scenario: Parents Oppose Private Management of Their Children's Daycare

Parents (P₁-P₁₀) whose children attend a municipal daycare center (A Hoikusho) are concerned when the city designates a private social welfare corporation (B) as the new manager. Their concerns stem from the potential replacement of familiar and experienced municipal staff with B's potentially less experienced staff, and reports of safety incidents at other facilities managed by B. The parents had previously received admission notices from the city specifying a daycare period until their children enter elementary school. They wish to legally challenge the city's designation of B.

Is the Designation of a Private Manager an "Administrative Disposition"?

Yes. The designation of a private entity to manage a public facility like a daycare center, and to exercise public authority in doing so (which can include making decisions on individual admissions or service provision under delegated powers, as per Local Autonomy Act Article 244-2, Paragraph 4), is considered an administrative disposition. It's not merely an outsourcing contract for services like cleaning; it involves a transfer of managerial authority over a public facility.

The Key Hurdle: Standing to Sue (Genkoku Tekikaku) for Existing Users (Parents)

The central legal challenge for the parents is establishing that they have the "legal interest" required by ACLA Article 9 to file a revocation suit against the city's designation of Corporation B.

  • The Landmark Yokohama City Daycare Abolition Ordinance Case (Supreme Court, First Petty Bench, Judgment of November 26, 2009, Minshu Vol. 63, No. 9, p. 2124): This case is highly relevant. The Supreme Court held that a municipal ordinance that abolished specific public daycare centers was itself an administrative disposition. Crucially, it also found that parents and children currently enrolled in those centers had standing to challenge the ordinance. The Court reasoned that, based on Article 24 of the Child Welfare Act and their individual admission notices (which often specify a period of enrollment), these families had acquired a "legal status to expect to receive daycare at the said daycare center until the end of the daycare implementation period." The abolition ordinance directly deprived them of this specific, individualized legal status.
  • Applying the Logic to a Change in Manager (Not Abolition):
    The current scenario involves a change in management, not an outright abolition of the daycare center. This distinction is important. The parents are not being deprived of daycare entirely, but the provider and potentially the nature of the service are changing.
    • Argument for Standing: The parents could argue that their "legal status to expect to receive daycare" was predicated on the understanding and trust associated with municipal operation. The admission notices they received were from the municipality for a municipally run facility. The designation of a new, private manager, especially one with a concerning track record, fundamentally alters the nature of the service they had a legitimate expectation to receive. This change could be framed as an infringement of their individualized interest in receiving daycare of a certain (municipally guaranteed) quality, continuity, and safety standard, upon which their decision to enroll their children was based. The Child Welfare Act's emphasis on the well-being of the child and the parent's right to choose (to some extent) a suitable daycare (evidenced by application forms allowing ranking of preferred centers) could support this.
    • Factors to Emphasize:
      • The specific terms of their admission notices (e.g., indicating a period of municipal care).
      • The potential for a tangible decline in service quality or safety due to the new manager (substantiated by concerns about B's track record).
      • The argument that the change is so significant it equates to being offered a different service than what they were admitted to, thereby impacting their established "legal status."
  • Counter-Arguments: The city would likely argue that the parents' interest is merely in receiving some form of daycare, and the identity of the manager does not affect their core right to daycare under the Child Welfare Act, provided the facility continues to operate and meet minimum standards. They might argue that parents do not have a legally protected right to have a specific entity (the municipality itself) manage the daycare.

The court's decision on standing would likely turn on how directly and significantly the change in management is perceived to affect the "legal status to expect daycare" that the Yokohama Supreme Court decision recognized.

If standing is established, the parents (P₁-P₁₀) could file a revocation suit against the city's decision to designate Corporation B as the manager of A Hoikusho. The defendant would be the city.

Broader Implications for Users of Public Services

These daycare disputes highlight broader issues concerning the rights of citizens as users of public services in Japan. When municipalities decide to alter the method of service delivery, such as through privatization or the use of designated managers:

  • Termination of Essential Services: The law provides relatively clear recourse if an essential service to which an individual is entitled is terminated without proper grounds.
  • Changes in Service Management/Quality: The legal standing of users to challenge changes in the management or perceived quality of a continuing public service is more nuanced. The Yokohama Daycare Abolition case offers a strong precedent for situations where a specific facility and the associated expectation of service are lost. Its application to mere changes in management requires careful argumentation focusing on the substantive impact on the users' established relationship with the service.
    The evolving interpretation of "legal interest" by Japanese courts will continue to shape the ability of citizens to hold public authorities accountable for decisions affecting essential public services.

Conclusion

Disputes over the utilization of public daycare centers in Japan, whether concerning the termination of an individual child's enrollment or the broader issue of transferring management to private entities, bring to the fore complex questions of administrative law. The characterization of administrative actions as "dispositions," the interpretation of eligibility criteria laid down in laws and local ordinances, and critically, the "legal interest" required for service users to challenge such decisions in court, are all key determinants of access to justice. While administrative efficiency and fiscal considerations often drive changes in public service delivery, the underlying legal framework aims to ensure that the rights and legitimate expectations of citizens, particularly vulnerable users like children and their parents, are adequately protected.