July 29, 2016
Anita Singh (name changed), a non-resident Indian woman who forcibly brought her six-year-old daughter to India from the United Kingdom against the wishes of the father, was ordered by the Delhi high court last week to return with the child.
A UK court earlier directed Singh, who is involved in a marital dispute with her husband, to repatriate. Singh, however, ignored the order.
This was one of the few cases where an Indian court has held that removal of a child from the place of her habitual residence was against her best interest.
In the absence of a domestic law on “inter-parental child abduction” in India, very often children of such NRI’s who have grown up abroad become silent victims of their parents’ marital dispute when they are forcibly brought back by one of the parents.
But this is set to change.
Like 90 countries that are signatory to the 1983 Hague Convention on the Civil Aspects of International Parental Child Abduction, forcible removal of a child from a country where they are habitually residing to India may soon become an offence.
The Hague Convention seeks “to protect to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for the rights of access.”
India is not a signatory to the Hague Convention. A country has to have a domestic law in place before it can become a signatory.
The Union ministry of women and child development (WCD) has drafted the Civil Aspects of International Child Abduction Bill, 2016, that once approved will facilitate prompt return of any child under 16 who has been “wrongfully removed to or retained in other state which is not his/her habitual residence.”
“We have put the bill on the ministry’s website (www.wcd.nic.in) and invited suggestions. Once the process is over, the bill will be finalised and taken to the cabinet,” a ministry official said.
The draft bill was readied following a reference from the Punjab Haryana high court to the WCD ministry and the Law Commission of India to examine the issue. The Law Commission recommended that India should frame a domestic law and sign the Hague Convention in its 218th report.
“But nothing happened. Issues related to children welfare are not a priority for us. It’s about time now. The intention is not to punish parents but to rebuild the family,” Anil Malhotra, international family law practitioner who has argued a number of inter-parental child abduction cases, said.
“In a majority of the cases, such children who have adapted to the culture of the country they are residing become very miserable once they are uprooted from their and brought to India,” he added.
The bill, Malhotra says, will provide an enabling legislation to implement the provision of the Hague convention that provides an expeditious method for returning a child.
“Signing the convention will ensure enforcement of custody orders of foreign courts. Presently, a parent takes advantage of the absence of a domestic law and knows if he/she brings the child to India it will be difficult to enforce the custody order of a foreign court,” he said.
The draft law mandates setting up of a central authority, to be headed by a joint secretary level officer, where an aggrieved parent can approach for the return of a child. The authority would have the power to decide all such cases.
In the US and Europe, inter-parental child abduction is a serious offence where the accused parent can go to jail on charges of abduction. Closer home, Sri Lanka, which is a signatory to the Hague Convention, has framed its own rules that allow the court to decide if a child should be sent back to the country from where he was removed.
“As of now, in most of the matters decided by the Indian court, the criminal offence and its penalties are often not pressed by the aggrieved parent to enable a settlement in the matter in the best interest of the child,” Malhotra added.
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