Insights into Editorial : Behind India’s unease with a global child abduction law
Months after the Ministry of Women and Child Development called for a consultation on whether it should sign the Hague Convention on the Civil Aspects of International Child Abduction, it has invited suggestions from the public on the matter. While the Convention came into force in 1983, and over 90 countries are signatories to it, India is yet to sign it. As per the convention, if a child is removed from his or her place of habitual residence, then they must be returned.
The Centre has been deliberating on the matter, and the WCD Ministry had even held a national-level consultation in February this year. The consultation, chaired by Punjab and Haryana High Court judge Rajesh Bindal, remained inconclusive. In 2009, the Law Commission, headed by former Supreme Court judge AR Lakshmanan, in its report recommended that the Centre accede to the Convention as it will “in turn bring the prospects of achieving the return to India of children who have their home in India”. The Centre had also drafted the Civil Aspects of International Child Abduction Bill in 2016 to this effect.
About the Hague Convention on the Civil Aspects of International Child Abduction:
It is a multilateral treaty on custodial issues of children. The Convention seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to ensure their prompt return.
- The convention is intended to enhance the international recognition of rights of custody and access arising in place of habitual residence, and to ensure prompt return of the child who is wrongfully removed or retained from the place of habitual residence.
- It seeks to return children abducted or retained overseas by a parent to their country of habitual residence for the courts of that country to decide on matters of residence and contact.
- The convention shall apply to any child, up to the age of 16 years who is a habitual resident of any of the contacting states.
Why India should sign this convention?
India’s accession to the Hague Convention would resolve the issue since it is based on the principle of reverting the situation to status quo ante. It is also based on the principle that the removed child ought to be promptly returned to his or her country of habitual residence to enable a court of that country to examine the merits of the custody dispute and thereupon award care and control in the child’s best interest. This is because the courts of the country where the child had permanent or habitual residence are considered to best determine the child’s interest.
Why are some people opposing this move?
It would be disastrous for many reasons for India to sing the Convention.
- Meaning of abduction: The Convention deals with what has come to be known as “international child abduction”. The Law Commission of India has recently addressed the issue, and the first and most important point made by the Commission is that the word “abduction” when used by a parent is misplaced as no parent can ‘abduct’ her own child.
- Absence of domestic law: Indian law does not automatically recognise foreign judgments. Now by signing the Hague Convention, we will be compelled to recognise a foreign judgment regardless of the justness of the decision on custody under Indian law or whether was delivered ex-parte.
- Several non-resident Indian women, estranged from their husbands are against this convention. Most of them have relocated from the countries they were staying in the West to India to escape abusive husbands. In case India signs the Convention, these women will have to let go of their children.
Why a domestic law in this regard is necessary?
There are several legal issues confronting the issue of transnational inter-spousal child removal. When a child is abducted by his or her own parent to India, while custody issues are pending determination in the courts of his or her habitual permanent residence abroad, there is little that local law enforcement agencies can do to remedy the situation. This is because there are no codified family laws or specific child custody laws under which these children can be returned to their homes in a foreign jurisdiction. An aggrieved parent with a foreign court order requiring return of the child finds no slot in the Indian legal system, wherein a wholesome statutory remedy can be invoked for effective relief.
Regardless, the Indian legal system provides succour by invoking the habeas corpus writ. Bitter disputed custody battles requiring conventional evidence to be established fall under the outdated Guardians and Wards Act, 1890. Parents then have to seek resolution of rights of access, custody, guardianship and visitation as a last resort of the proof of their superior parental rights.
The aspects of ensuring the safety and well- being of the child through state intervention is of significance. Even if the Hague convention is not acceded to, India must consider negotiating bilaterally building on these provisions in the Hague convention.
The problem of child abduction is real, and India, with its diaspora spread over the globe, needs to work on the issues addressed by the Hague convention while ensuring that the remedy is compatible with the convention on the Rights of the Child.