Hague Convention on Civil Aspects of International Child Abduction

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:

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.