Drawing to a close the longstanding dispute on whether India should give in to pressure from the United States and accede to the Hague Convention on Civil Aspects of International Child Abduction, the Justice Rajesh Bindal committee, appointed by the Union government, has recommended against the move.
In cases of transnational marital discords involving child custody, the Hague treaty requires contracting states to send back the runway parent and child to the child’s ‘habitual residence’.
Subsequent Law Commission of India reports of 1980, 2009, and 2016 have ruled in favour of India signing the multilateral treaty, citing the ‘best interest of child’ principle.
However, following feedback received from several stakeholders on how most of these “runway parents” are women fleeing abusive marriages abroad, the panel headed by Punjab and Haryana High Court judge Rajesh Bindal has not recommended signing the treaty. In fact, the Law Commission report of 2016 had cited data that 68 per cent of parents, who take away children globally are mothers, with 85 per cent of these women being the primary caregivers of their children.
In 2016, Women and Child Development Minister Maneka Gandhi had said that India will not ratify the treaty in the interest of women fleeing bad marriages, but later set up the Justice Bindal panel for a detailed report. The panel has not explicitly stated the nature of its reservation against signing the treaty — it has cited several stakeholders’ suggestions it received. Some of these point out that the US has been “pressuring India to sign the treaty”, wherein the father can file a case of abduction in the US and easily get a decree in his favour along with a warrant of arrest for the already-victimised mother.
Suggestions also point out that “for India to sign the Hague Convention would amount to forsaking the welfare of our many children and women”. Considering these, the Justice Bindal panel has noted that in several situations it may not be in the “best interest of the child” to be sent back to the foreign country. These, according to the commission, include instances where the child is susceptible to physical or psychological harm.
A WCD official said that the ministry will take a position on the treaty after wide consultations on the panel’s report. The official said, “The Hague treaty requires countries to have a central authority to resolve disputes between parents — when one parent goes off to her country of origin along with the child, never to return again. The committee report has recommended for such an authority but one that will operate on terms and conditions set by India.
“At the same time, it has not recommended that India should be part of the Hague treaty.”
The panel has suggested setting up the ‘Inter Country Parental Child Removal Disputes Resolution Authority’ for dealing with cases where children are wrongfully retained by a parent. It has also drafted the Protection of Children (Inter-Country Removal and Retention) Bill, 2018, where it states that such an authority would be headed by a Supreme Court judge or a High Court Chief Justice or judge.
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