A committee set up by the Centre to prepare a report on the issue of inter-country parental child abduction has questioned one of the basic principles of the Hague Convention by arguing that the return of the child to his or her habitual residence may not necessarily be in the best interest 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 Committee feels that the concept of habitual residence is not synchronous with the best interest of the child,” says a report by the Justice Rajesh Bindal Committee. 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.
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.
Conditions for refusal
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.
Indian family system
The panel has also emphasised the importance of the “Indian family system” in ensuring the best interest of the child, seemingly to question the logic behind returning the child to a place of habitual residence outside India.
“With the older generation of womenfolk being home-makers, the households have great caregivers in terms of grandparents, uncles, aunts, cousins, etc., on either sides. A child, even if he may have stayed in some other country, would never be completely uprooted from the country of his parents’ origin, who have families back home in India,” reads the report.
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.
The Committee submitted its report to Women and Child Development Minister Maneka Gandhi last month. The Ministry will be circulating the report to the Ministries of External affairs and Home Affairs for their inputs.
The Justice Rajesh Bindal Committee was set up last year 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.
Once the Central government decides to set-up the Authority and frames a law on the issue, it is expected to take a decision on whether it should 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.