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Behind India’s unease with a global child abduction law

The Indian Express explains The Hague Convention and why India has been reluctant to ratify it despite repeated recommendations from courts and Law Commission

Written by Sofi Ahsan | Published: August 4, 2017 12:16 am
child abduction law, global child abduction law, India on child abduction law, The Hague Convention on child abduction A significant piece of legislation was introduced in the US Congress last week — the Bindu Philips and Devon Davenport International Child Abduction Return Act of 2017 seeks to punish countries that do not adhere to US court orders on the return of abducted children. (Representational Image/AP)

A significant piece of legislation was introduced in the US Congress last week — the Bindu Philips and Devon Davenport International Child Abduction Return Act of 2017 seeks to punish countries that do not adhere to US court orders on the return of abducted children. The Bill is named after two women — an Indian American and a Brazilian American — who allege their children were abducted and taken to India and Brazil by their husbands.

Back home, India has been struggling for years with legislation on the custody of children caught in transnational marital discord. The central government decided last year to not ratify The Hague Convention on the Civil Aspects of International Child Abduction (1980), which would force Indian women who return with their children after conflict with their husbands, to go back to the foreign country for settlement of custody.

A Committee headed by Punjab and Haryana High Court Justice Rajesh Bindal subsequently studied the issue in depth. Last month, the committee released a concept note on its recommendations.

What is The Hague Convention on international child abduction?

It is an international treaty to ensure the prompt return of a child who has been “abducted” from the country of their “habitual residence”. Ninety-seven countries are party to the Convention. Despite pressure from the US and European countries, India is yet to ratify it. Under the Convention, contracting countries must establish a central authority to trace unlawfully removed children and secure their return to the country of habitual residence, irrespective of the country’s own laws on the issue. The Convention applies to children under age 16.

Where does India stand on this matter? 

In 2009, the Law Commission of India recommended signing The Hague Convention, because it “will in turn bring the prospects of achieving the return to India of children who have their home in India”. The Commission observed that in the absence of a law, Indian courts had not followed a pattern in such cases.

In February 2016, Punjab and Haryana High Court again referred the matter to the Law Commission and Ministry of Women and Child Development. In his interim order, Justice Rajive Bhalla (now retired) noted that “the removal or retention of a child in breach of custody rights is a wrong under The Hague Convention but for want [of] the Union of India acceding to The Hague Convention or enacting a domestic law, children will continue to be spirited away from and to India, with courts and authorities standing by in despair”.

The court asked the Commission and the Ministry to “consider whether recommendations should be made for enacting a suitable law and for signing The Hague Convention…”.

In June 2016, a draft Civil Aspects of International Child Abduction Bill, 2016, with provisions similar to The Hague Convention, was uploaded on the Ministry website for public comments. After examining the Bill and the issue, the Law Commission submitted a revised version of the Bill, called The International Child Removal and Retention Bill, 2016, in October, in line with The Hague Convention and legal precedents in the country.

What were the key recommendations?

The Commission noted that “women involved in cross-jurisdictional divorces, ‘holiday marriages’ or ‘limping marriages’ have to face additional challenges in the custody battle”, and that “the woman must not be put in a situation where she has to make the impossible choice between her children and putting up with an abusive relationship in a foreign country”.

In most cases of so-called “parental abduction”, parents take away the child because “of the fear of losing his/her custody”, the Commission said — “such an abduction… is out of overwhelming love and affection and not to harm the child or achieve any other ulterior purpose”. The Commission, thus, dropped the word ‘abduction’ from the title of the revised Bill.

The report did not, however, remove the previous Bill’s provisions on sending the child back to her habitual residence, as envisaged by The Hague Convention. It also retained the provision that gave the central authority the power “to secure the voluntary return of any such child to the country (of)… habitual residence, (and) to bring about an amicable resolution of the differences” between the parties in the dispute.

Given the draft Bill is largely in conformity with The Hague Convention, why is India still not keen to join the treaty? 

Critics have argued that the legislation would affect the interests of Indian mothers fleeing from abusive or difficult marriages. The law, the critics said, would compel these women to return to the foreign country where the child was born, to fight for custody in possibly unfavourable conditions. The Ministry of Women and Child Development, wary of Indian women being charged or prosecuted in foreign countries, declined to back the law.

In February 2017, at a national consultation on signing the Convention chaired by WCD Minister Maneka Gandhi and attended by judges from the Delhi and Punjab and Haryana High Courts and a member of the Law Commission among others, it was again decided to constitute a committee to draft suitable legislation, and to advise on whether India should become a signatory. The committee was asked to submit its report in four months.

What has happened since then?

Last month, the committee, comprising two Punjab and Haryana HC judges, a Delhi HC judge, the chairman of the Punjab NRI Commission, a family law expert, and six representatives of various Ministries released a concept note for public suggestions. The committee is learnt to have received a large number of representations, and its major challenge is to reconcile contradictory views.

The foremost legal question is which court will have jurisdiction to decide custody — one in the country of habitual residence, or one where the child has been removed which, in most cases, is India. The committee has not met after the compilation of the feedback, and its report has been delayed.

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  1. K
    Kunuthur Srinivasa
    Oct 6, 2017 at 5:03 pm
    I understand the predicament of the Ministry of Women and Child Development, Govt. of India since it has to weigh options i.e., one to get rid of the dubious distinction of world record in providing safety and security to maximum number of child abductions by Indian women to India(68 ) and the other option is to express solidarity and unconditional support to Indian women whose vote bank is quite formidable to remain in power. Therefore, political option ultimately succeeds because to remain in power at any cost is more important for any party than the so called global overtones and projections on India. Whereas, the comment by ANJANA on comparative efficiency of Indian Judges with that for US Judges, is unworthy, ugly, unfortunate and unbecoming of a civilized human being. Virtually her anger is misdirected since, it is the Judiciary of Punjab and Haryana High Courts which referred the issue of IPCA to the Law Commission of India to submit a report once in 2009 and again in 2016.
    1. Anjana Anjana
      Aug 5, 2017 at 12:24 am
      Simply put Indians are uncivilized human beings who have not idea that children are not property of their parents but are human beings. Indian Supreme Court and High Court will be 1000X crappier than any lower level court in US or UK. Indian judges are not even fit to clean toilets in US courts. You do not have to take my word for it but just read latest Wall Street Journal article: s: wsj /articles/six-hours-of-chaos-a-wild-day-inside-indias-overrun-courtrooms-1501512106 100 countries who have signed Hague didnt have issues with it but only India has UNIQUE issues with it. Only reason behind it is that India wants to hold on some really backward uncivilized mindset about children and child custody. LETSCIVILIZEINDIA
      1. S
        Saurabh Garg
        Aug 5, 2017 at 5:08 pm
        Civilize yourself before civilizing anyone, You just went crazy on an issue that may be a significant one. But there are issues of greater significance than this. People do not go haywire even on them in the fashion you just went. Yes, We know how intelligent US judges are. They could not dare abolishing Guantanamo Bay for far too long and Obama had to step in. And, for your knowledge, It is not US or Indian judges that sign an international covenant, but the governments. You read a lot about judges in the above article and jumped to conclusion that It is because of them that the treaty has not been signed. WSJ and NYT are not worth reading and propaganda machines spewing venom against almost everyone across the world. They are no holy saints. If they are, then ask them to ratify NPT, CTBT, Basel convention on hazardous waste among many others. With due respect to you, do not talk about USA at least, they only sign something where they see all their interest are getting served. Sorry