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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.