Child Custody – Hague Convention

Context:
India reluctant to join Hague Convention.
Hague Convention:
  1. 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) that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.
  2. Deals with international child custody cases.
  3. Passed in 1980, the Hague Convention on International Child Abduction, which came into force in 1983, rules that in any child custody case, the court of the country where the child is a “habitual resident” will adjudicate who will get custody.
  4. A total of ninety four countries, mostly developed nations in the Americas, Europe and Australia, are signatories to the Hague Convention
  5. The Convention applies only to children under the age of 16.
Issue:
  • The United States has urged India to join ‘Hague Abduction Convention’ to safeguard 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-U.S. Consular dialogue:
  • Between officials from the Ministries of External Affairs, Women and Child Development and Home and their counterparts in Washington.
  • The U.S. might push India to join the “Hague Convention” in this dialogue session.
  • Legal provisions: The Hague Convention is circumventing the Indian system, and India can’t abdicate its responsibility to Indian parents, mostly mothers, and their young children.
  • Separated parents: American officials say the problem arises when one parent is in the U.S., while the other brings the child to India (their home country) to avoid an adverse decision in the U.S. court.
  • ‘Women worst hit’: the worst affected in the cases covered by the convention are women, who form 68% of the parents that take or “abduct” their children to their home countries, and must be protected.
India’s stand:
  • The government is not yet ready to sign the Hague treaty.
  • The government is of the view that the decision could lead to harassment of women escaping marital discord or domestic violence.
  • Government has constituted a committee on the issue.
Committee report
  • A committee constituted by the Centre to examine legal issues involved in international parental abduction submitted its report in April, opposing a central provision of the Hague Convention.
  • 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.
  • It also recommended setting up of 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.
  • However, the government is contemplating assigning the National Commission for Protection of Children the responsibility to adjudicate on such cases along with a judicial expert.
  • While the government had decided in late 2016 that it will not sign the Hague treaty, later it appointed a panel to prepare a report indicating that there was some rethinking within the government on the matter.
Family Silhouettes
Family Silhouettes

 

Way forward
  • Safeguards need to be in place before signing the treaty.
  • It has to be a political decision that the government needs to take.
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