India and Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction is an intergovernmental agreement that deals with issues related to parental kidnapping or child abduction for children under the age of 16 across international borders. It lays down procedures to bring back children those have been wrongfully retained or removed from their habitual residence. The convention has been signed and ratified by 97 countries as of now. But India has decided not to sign and ratify the convention.
Why India does not want to ratify the Convention?
The reasons for India not ratifying the treaty are as follows:
- The ratification of the convention makes it obligatory for India to recognise a foreign judgment automatically irrespective of its ethical standards or dimensions.
- The ratification would be dissatisfactory for all Indian women who returned home with their children after conflict with their husbands abroad, as it would force them to go back to the foreign country for settlement purpose.
- As per the treaty all countries which are party to the convention must establish a central authority to trace unlawfully removed children and secure their return to the country of habitual residence, irrespective of the country’s own laws on the issue. But India still doesn’t have any such central authority. Also, this is not acceptable to Indians because we don’t recognise foreign judgements automatically.
- The convention use the word “abduction”, and in most cases of so-called “parental abduction”, parents take away the child because “of the fear of losing his/her custody”, which is not forceful in nature but out of overwhelming love and affection. Such cases would pose Legal vs. Ethical Issues.
- Another challenge is based on the superiority of the courts, that is, which court, the one in the country of habitual residence, or the one where the child has been removed, will be the final authority to decide the custody of the child in case of conflict between the judgements of the two.
Recently, WCD Minister Maneka Gandhi after consultation with Law Commission has decided to constitute a committee which will conduct the detail study of the matter and will soon recommend whether India should be a party to the convention or not.
Discussion on Hague Convention
Although, the Convention is taking place in gender-neutral terms, on the flip side, signing the convention would require all those women who have escaped bad marriages abroad to send back their child to the country of father’s residence. The abovementioned reasons correctly detail why India should not sign the convention. Further, the Law commission of India has also objected the use of the word “abduction” since no parent can abduct their own child. It is argued that Hague convention would be disadvantageous to Indian Women as majority of cases are related to women instead of men running away, mainly Women have to suffer as they will be compelled to return to a foreign country and fight battles for custody of child with no support. The Law commission notes that 68% of the taking parents were mothers. For example, if an Indian male immigrant marries an Indian woman and to escape bad marriage if the woman leaves her husband’s country along with her children, then the Hague Convention will require that if there was a court order in a foreign jurisdiction, then the father can apply to an executive authority in India for the return of the child. The mother will be labelled as a “child abductor” in this case. In such situations, it is expected that the mother to approach the foreign court and convince that court that she should be allowed to take the child back. But again, the woman will be left all alone in a foreign land to fight lonely custody battles with no support.
Hague Convention will also enable some husbands to enter into a dubious practice of compelling women to give up their claims to alimony or any separation settlement. This will make women to exit bad marriage with custody of the child and without any alimony.
As the option for fathers to take legal recourse in Indian courts if they want to reclaim the custody of child is always available, it would not be prudent to send back women and child to foreign lands to fight legal battles. Depending on the procured orders by the husbands, in some cases, it could make women to get arrested the moment she enters the foreign country.
India is being pressured by the lobby groups in the United States and certain European countries in the name of promoting gender equality to sign the convention. Given the reality of Indian marriages and status of Indian women, it would be better if the government sticks to its earlier stand of not signing the convention.