Hague Abduction Convention | IAS Target

Hague Convention on Civil Aspects of International Child Abduction

IAS Target

Hague Convention on Civil Aspects of International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH). It provides an expeditious method to return a child internationally abducted by a parent from one member country to another.

The Convention concluded: 25 October 1980

Mission of Convention

  • To ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence
  • The Convention applies only to children under the age of 16.
  • Deals with international child custody cases.
  • To preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal
  • Deterring a parent from crossing international boundaries in search of a more sympathetic court

Convention in the news:

Regarding custody of child b/w Indian-american couple

Issues b/w India and USA regarding convention

  • The United States has urged India to join ‘Hague Abduction Convention’ to shield the rights of children born to Indian-American couples
  • Almost a hundred children born to Indian-American couples are facing an uncertain future due to the trauma of separation of their parents and the complex legal issues involved.

India's position

  • The Union government has decided that India will not approve the Hague Convention on the Civil Aspects of International Child Abduction
  • The government stand that the decision could lead to harassment of women who escaped from a failed marriage and suffering from domestic violence or marital discord.
  • The Government constituted committee to look this matter comprehensively
  • Signing the convention would require all those women who have escaped bad marriages abroad to send back their child to the country of the father’s residence
  • Need to look women and child interest, because women will be bound to live against her wishes in foreign soil.

Committee's recommendation

  • It said that the criterion of habitual residence of the child, which is used to determine whether the child was wrongfully removed by a parent as well as to seek the return of the child to the country of habitual residence, was not in the best interest of the child.
  • Committee opposed India's joining Hague Convention
  • It is also recommended to form a Child Removal Disputes Resolution Authority to act as a nodal body to decide on the custody of the child as well as a model law to deal with such disputes.
  • Committee found that it is mainly women who are compelled to return to a foreign country to fight lonely battles for custody with no support.
  • The Government is also considering that National Commission for Protection of Children to handle child abduction cases
  • No parent can ‘abduct’ her own child.
  • Compel a woman to give up her claims to alimony and any separation settlement.

What need to be done?

  • The solution lies in a reverse law on the protection of children found in the jurisdiction of the Indian courts. Our courts exercise ‘parens patriae’ jurisdiction over children - they are the ultimate guardians of children in their jurisdiction.
  • Indian law does not automatically identify foreign judgments. Now by signing the Hague Convention, we will be compelled to identify a foreign judgment, regardless of the justness of the decision on custody under Indian law.
  • When faced with a claim from a father who says that the child has been removed from his custody in the face of a court order granting him custody, the court must decide whether it is in the best interest of the child to be sent back to a foreign land.

Conclusion

  • Government should not haste in signing the treaty
  • It has to be a political decision that has economic, social, cultural implication , so govt. needs to think in all dimensions
  • Safeguards need to be in place before signing the treaty regarding women, child and their future.