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.
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.
In 2016, the government had decided not to be a signatory to the on the ground that it can be detrimental to the interest of the women fleeing an abusive marriage.
Under the treaty, there 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. It is because 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 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 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.
The report highlights 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 side. 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.
About Hague Abduction Convention:
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. The Convention entered into force between the signatories on 1 December 1983.
The Convention was drafted 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 primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court.
The Convention applies only to children under the age of 16.