Lawyers Collective and Advocate Suranya Aiyar have urged the Centre to not sign the Hague Convention on Civil Aspects of International Child Abduction. The Convention, signed by 96 countries, provides for a mechanism to return a child internationally abducted by a parent from one member country to another.
The NGO and Ms. Aiyar have pointed out several reasons for opposing the Convention in their submissions made to the Committee on the Convention as well. Calling the Convention a “draconian and insensitive law”, they have, thereafter, appealed for a negotiation of terms with foreign Governments that would “preserve and foster a child’s relationship with both its parents”.
Fleeing parent is not an “abductor”
The submissions protest against the terminology used in the Convention, when labeling the removal of children from a country by their own parents as “abduction”.
“We should not stigmatize parents coming to India with their own children as “abductors”. Under the Indian law, it has been well established that parents are the natural guardians of their children, so there is no question of treating them as “abductors” under Indian law,” they assert.
The Convention Comes Down Heavily on Abandoned and Abused Mothers
They allege that the Convention turns a blind eye to the plight of the mothers who flee to India after facing abandonment or domestic violence. The submissions, therefore, urge the Committee to be “sensitive” to their cause and cite the stand taken by Japan by making exceptions in case of woman facing domestic violence in the country from which they have fled.
They further contend that the Convention, if implemented, will push the women back to an environment of abuse that she escaped, in order to stay close to her child.
The Convention Ignores the Best Interests of the Child
They assert that the Convention “fails to take into account the needs and best interests of the child” by hinging the fate of the child on the place where he or she was ‘habitually resident’ before being brought to India.
They explain, “Many anomalous situations arise if we adopt this notion of ‘habitual residence’ as being decisive in inter-parental custody disputes. Suppose a woman is forced to stay in a foreign country under court injunctions while her divorce case is on-going, and she gives birth to a child in that period, is it fair of the law to consider that child as habitually resident there? Suppose the custodial parent becomes incapacitated for some reason from taking care of the child, is the other parent going to be denied custody merely owing to the child having been habitually resident elsewhere?”
Bias against awarding custody to Indian parents
The submissions highlight the “deep prejudice” showcased against Indian parents by first world countries. They rely on a recent study conducted by Ms. Aiyar, which reveals that the United States is routinely removing Indian children from both Indian parents on spurious allegations of abuse.
“Indian-resident parents less likely to be granted custodial rights by courts of countries such as the USA and Norway, which are largely ignorant of India, except as a third-world country that any child would be lucky to escape… The Committee and the Indian Government must bear these dynamics in mind in order to properly understand how the Hague Convention will be used, not just in interparental disputes but also against both parents by foreign child protection agencies,” they, therefore, submit.
The Convention Allows Custodial Claims Without Any Judicial Order
They emphasise on the fact that the foreign party does not have to produce a Court order to establish its right to custody and submit, “If such laws were to be passed in India, it would amount to complete abdication of responsibility towards Indian children by the Indian Government. Let alone sending children to a foreign parent without proper custodial, this would not even protect them from being trafficked by fraudsters and criminals.”
Existing laws for implementation of foreign custody judgments
The submissions assert that the by signing the Convention, the country will be compelled to recognize a foreign judgment regardless of the justness of the decision on custody under Indian law or whether it was delivered ex-parte. They further submit that the Convention seeks to circumvent the Indian legal system, by shutting off any recourse in the home country for the child and parent leaving the foreign “habitual residence” country.
“This is not an arrangement that India should agree to keeping in mind the practical realities of prejudice in foreign courts and authorities over custody and the plight of mothers returning to India with their children. The draft Bill that seeks to implement the Hague Convention in India circumvents our courts and their parens patria jurisdiction over children. It also sweeps away our entire jurisprudence on child custody in one blow.” they submit.
Policing and Invasion of Privacy of the Child
The submissions make reference to Article 7 of the Convention, which permits Central Authorities constituted under the Convention in member States to liaise with each other to find and deport children. Without the any supervision of a judicial authority or intervening rights of the parents of the children, these authorities are allowed to “discover the whereabouts of a child”; “take provisional measures”, “exchange information relating to the social background of the child” and so on.
It is, therefore, submitted, “This is a gross invasion of the privacy of the child; and that too by a no-judicial body, without any countervailing rights given to the child’s de facto custodial parent in order to balance the powers of the Central Authority.”
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