- Over three crore Indians living abroad have cross-border marriages. When such a diverse family unit breaks down, children suffer as they are dragged into an international legal battle between their parents. India has not signed the Hague treaty yet.
- The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that establishes procedures that provide for the prompt return of children wrongfully retained or removed from their habitual residence.
- According to the treaty, a child will be said to have been wrongly removed when the move is in violation of the rights of custody attributed to someone by the authorities of the country where the child has been living.
Reasons why India should not sign this convention:-
- The Convention deals with what has come to be known as “international child abduction”. The word “abduction” when used by a parent is misplaced as no parent can ‘abduct’ her own child.
- Indian law does not automatically recognise foreign judgments. Now by signing the Hague Convention, India will be compelled to recognise a foreign judgment regardless of the justness of the decision on custody under Indian law or whether was delivered ex-parte.
- Gender issue:-
- India’s original reason for not signing the treaty was because the government felt that most cases of child removal are committed by women trying to escape a bad or abusive marriage in another country.
- Criminalising the act and forcing her to return to the country of habitual residence would therefore add to her problems.
- The convention would amount to victimising women escaping a bad marriage.
- The convention shows no recognition of the role domestic violence plays in compelling a mother to go back to her country of origin. If India adheres to the provisions of the convention, the woman, just to be with her children, will be forced to go back to a violent relationship.
- If India’s proposed move to sign the Hague Convention goes through she will not only become a child abductor but will also be denied the protection of the Indian courts which she now has.
- Normally, as per the framework of the Hague Convention, the Requested state is expected to adhere to or comply with such requests from the Requesting State, irrespective of its own laws regarding child abduction.
- If India were to sign the Hague Convention and thereafter were to receive requests from another Contracting State for return of an abducted child, the Indian Courts would be requested to comply with such requests notwithstanding the fact that as per existing Indian law.
- In effect, signing the Hague Convention would mean bowing down to foreign pressure and accepting a foreign interpretation of law which is contrary to law as interpreted in India. This would also amount to an attack on the very sovereignty of India as an independent democratic nation.
- It would even nullify Section 13 of the Code of Civil Procedure, in so far as foreign decrees/orders in child abduction cases from Contracting Parties are concerned.
- Children will not benefit:-
- India becoming a signatory to the Hague Convention would never prove to be beneficial for the interests of persons and children of Indian origin or to citizens of India, because there are very few instances of Indian children being taken away from India to a foreign country by either one of the child’s parents.
- Even if such incident were to occur, the question of India making such requests of return of such Indian children from a Contracting Party to which the said children have been so removed, would never arise.
- The signing of the Hague Convention on International Child Abduction will enable the government to force children away from their mothers and immediate family, and be sent to a foreign countrywithout considering whether this is in the ‘best interest of the child’.
- Indian judiciary:-
- The Indian Supreme Court is already empowered to provide recourse and remedies to aggrieved parents in such cases
India should consider being part of the convention:-
- Present status is very complicated:-
- India is not only not a signatory of the Convention, but also does not yet recognise removal of child by a parent as an offence. Thus the only legal route open to the left-behind parent is to initiate legal proceedings in the country of habitual residence and then armed with the order from that court, come to India and file a case of Habeas Corpus in India. Once the child is produced in court, the case turns into a custody battle.
- Foreign pressure:-
- According to US government data, there were more than 80 cases of parental child abduction cases from the US to India.
- Besides the law commission, there was also pressure from the US, which reported maximum cases of child abduction, mostly by mothers, for India to join the treaty.
- There has been a steady rise in parental abductions as more and more Indians go abroad to work or study. Children often bear the brunt of their parents marital disputes and are often forced to return to India by one of the quarelling parents.
- Signing the treaty will ensure that the child is sent back to his/her country of residence with the parent, who would be tried for abduction in the country he or she fled from.
- Over the years, the number of Indians marrying and staying abroad and giving birth to children abroad have increased. Therefore, India should be forward-looking and should change itself and sign the Hague Convention on the Civil Aspects of International Child Abduction.
- If India becomes a signatory to the Convention, it will help in the return of those Indian children who have been abducted and taken abroad.
- The argument in favour of signing the convention has been that it will benefit mothers as well when fathers abduct children
- Before India becomes party to the Hague Convention, India has to put in place a strong mechanism with built-in checks and balances. Creating a central authority, with a judge to head it, which will receive all applications on parental child abduction and removal and facilitate return and exchange is in the interest of India.
- To be a signatory to the Hague Convention, a country needs to have a domestic law on wrongful removal and retention of a child. In 2016 the Ministry of Women and Child Development drafted a Bill against parental child abduction. The Bill is available on the department’s website. But it is yet to be passed. The Law Commission of India has also advised that India become a signatory of the Hague Convention.
- Japan has shown awareness of domestic violence while signing the convention through the Act on Implementation of Convention on the Civil Aspects of International Child Abduction. India can follow this approach.