August 22, 2016
A group of women who fled abusive spouses abroad with their kids have appealed to the government to not sign the Hague Convention on child abduction, which will force them to return.
It was in 1983 that The Hague Convention on the Civil Aspects of International Child Abduction came into force, ensuring that any child wrongfully removed from the place of habitual residence is returned.
India has yet to sign the convention despite pressure from the US and UK where a large number of Indians migrate to. But the women and child development ministry has, for the first time, proposed a legislation to clear the decks for the government to sign on the dotted line.
This would mean that if India were to receive a request from another country to return an “abducted” child, an Indian court would be urged to comply. This would be despite the fact that under Indian law, a child in the custody of either parent is seen to be in lawful custody and is not defined as an “abducted” child.
“Most of us are educated, working in mid to senior management level positions in the US when we had to leave with our children for India. We did so because we were married to abusive, alcoholic men and feared for our and our children’s lives.
“How can the government force my child to go back to such a man?” asked a young woman from Mumbai who recently returned from the US with her child and is now embroiled in a custody and divorce case.
The Telegraph spoke to many women who have returned with their children over the past few years but all refused to be identified with location and case history on the ground that their cases were sub-judice. They have written to women’s minister Maneka Gandhi and started a petition online.
“The repercussions for us will be grave if India signs this. We will lose our children because most of us have already lost custody cases abroad because we were absent during the proceedings,” said a mother who fled the US after she found her husband sexually abusing her daughter.
The mothers said they did not opt for custody battles in the US as under American law it was a rarity to grant sole custody to a parent. The courts generally granted shared parenting or visitation rights for a spouse, even if accused of domestic violence.
“In such cases where parenting rights are shared or when the abusive spouse has visitation rights, women are stuck in that country for their children. They are not allowed to take their kids out of the country and it becomes a very difficult situation,” said a woman, whose husband was granted custody of their child by a New York court in her absence.
Some women said they knew of cases where, despite multiple complaints against husbands to the authorities abroad, no action was taken.
Another mother of a toddler in Bangalore said she was fortunate to have survived domestic abuse in California. Her husband routinely choked and threatened her as she and her parents had refused dowry demands, she said.
Another young mother spoke of the psychological wounds inflicted on her and her child. Her spouse would lock her child in the car for half an hour on cold wintry nights as a punishment.
“The problem abroad is that if a woman reports a case of domestic violence multiple times, instead of taking action, they ask us to leave the house with the child and go to a shelter home, thus making the woman helpless.
“Other times, the child protective services would remove the child from the home. So, in most cases, women don’t even complain about domestic abuse,” said a woman, who had her child removed by the child protective services.
Also, under the Hague Convention, the burden of proof rests with the “abducting parent”, who is required to provide “clear and convincing evidence” of abuse of the child.
The Japanese government deliberated for years about signing the convention, and only did so with the caveat that children exposed to adult domestic violence would be considered at “grave risk” of harm in that country.
There are reports that international family lawyers in the US are planning to submit an appeal to amend the International Child Abduction Remedies Act to ensure that American law properly distinguishes between parental “abduction” and “flight to safety”.
Officials in Maneka’s ministry, which has put up the legislation for consultation, said talks would be held with these women and civil society groups before a decision is taken.
“We are in no hurry to sign the convention,” an official said.
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