Ethics, International conventions, the Hague Convention on Civil Aspects of International Child Abduction, NRI issues, failed NRI marriages, Child Rights
Why in news?
Justice Rajesh Bindal Committee has questioned the basic principles of the Hague Convention.
The Hague convention deals with the on the Civil Aspects of International Child Abduction
The Justice Rajesh Bindal Committee was set up in 2017 to suggest a model legislation to safeguard the interest of the child as well those of the parents when an NRI (Non Resident Indian) marriage goes sour and one of the parents flees from one country to another with the child.
This is the case of inter-country parental child abduction.
What are the recommendations of Justic Bindal Committee?
Justice Rajesh Bindal Committee has questioned one of the basic principles of the Hague Convention.
It has proposed that the return of the child to his or her habitual residence may not necessarily be in the best interest of the child.
It adds that returning a child to the place of habitual residence may result in sending the child to an inharmonious set-up as well as overlook the fact that a mother is the primary caregiver of the child.
There is immense pressure on India from the U.S. to accede to the Hague Convention on the Civil Aspects of International Child Abduction, which is a multi-national treaty that seeks to protect children wrongfully removed by one of the parents from the custody of the other parent.
At the heart of this treaty is 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.
The panel has also prepared a draft law to safeguard the interest of the children, as well as those of the parents, particularly mothers.
The proposed legislation lays down nine exceptions under which a child will not be returned to the country of habitual residence.
The report also requires the setting up of an Inter-Country Parental Child Removal Disputes Resolution Authority, which will be the nodal body to decide on the custody of the child, mediate between the warring parties, as well as order the return of the child to the country of habitual residence.
Indian family system: Indian Family system offers the best interest of the child: With the older generation of womenfolk being home-makers, the households have great caregivers in terms of grandparents, uncles, aunts, cousins, etc., on either side.
What are the conditions for refusal to return the child?
The important conditions under which a child’s return can be refused are:
Best interest of the child,
Domestic violence or mental or physical cruelty or harassment against the parent who fled with the child,
The parent claiming the return of the child was not exercising the custody rights at the time of removal, and
If there is a grave risk that the child would be exposed to physical or psychological harm.
Should India accede to the Hague convention?
In 2016, the government had decided not to be a signatory to the treaty on the ground that it can be detrimental to the interest of the women fleeing an abusive marriage.
In most of the NRI marriages, the husband is a green card holder and the wife is dependent on him.
Whenever such marriages turn sour or the husband becomes abusive to the wife, then latter tends to return back to India along with the child.
Indian law does not automatically recognise foreign judgments. Foreign courts may pass their judgments in the absence of the fleeing parent, which, in most of the cases is a woman.
Now by signing the Hague Convention, we 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.
India should, first of all pass a law on this issue and set up an authority on Inter-Country Parental Child Removal Disputes Resolution. Then only it should sign the Hague convention.