Despite international pressure, the Centre is likely to junk the Bill on inter-parental child abduction, which deals with child custody issues for NRI couples, and would have paved the way for India’s accession to the Hague Convention.
The Law Commission, though, recently submitted its report to the Law Ministry sticking to its 2007 stand advising the government to accede to the Hague Convention on the Civil Aspect of International Child Abduction (1980).
“We are very clear that we are not signing the Hague Convention. This is a decision collectively arrived at by the Women and Child Development (WCD) Ministry, Ministry of External Affairs (MEA) and the Ministry of Home Affairs (MHA),” said a senior WCD Ministry official.
On June 22, 2016, the WCD Ministry had uploaded on its website a proposal to enact a draft of the Civil Aspects of International Child Abduction Bill, 2016. Subsequently, the draft Bill was placed on the website seeking comments.
The draft Bill was prepared following a reference made by the Punjab and Haryana High Court to the Law Commission of India and the WCD Ministry to examine the issue and consider whether recommendations should be made to enact a suitable law and for signing the Hague Convention.
However, the Bill has since been removed from the Ministry website.
The draft envisaged “prompt return of children wrongfully removed or retained in a contracting state, and to ensure that rights of custody and of access under the law of one contracting state are respected in other contracting states.”
It also proposed a central authority to discover the whereabouts of a child, to prevent further harm to any such child and to secure the voluntary return of the child to the signatory nation.
WCD Minister Maneka Gandhi has expressed apprehension over acceding to the Convention at several forums, primarily on two grounds — that taking such a decision will not be in the interest of aggrieved women and because the government maintains that there are fewer instances of Indian children being abducted and taken abroad.
At an event last month she had said, “Personally, in the beginning, when I was new, I thought we should join the Convention because we get protection. But with time and after interacting with women who have been abandoned by their husbands abroad, had their passports snatched from them, been beaten up, and have somehow scraped the money and are in terrible fear, I wonder whether we should join or not.”
The draft Bill also made it clear that a decision under the Hague Convention to return a child would not be final and courts will have the power to deny custody on certain grounds.
These grounds are two-fold — firstly, if the person having the care of the child was not actually exercising the custody rights and secondly, if he/she put the child at a grave risk of physical/psychological harm.
The Law Commission report had an additional exception to Hague Convention: “The person who is allegedly involved in wrongful removal or retention, was fleeing from any incidence of domestic violence.”
It also recommended a jail term of one year for any parent or family member found guilty of wrongfully retaining or removing a child from the custody of the other parent.
Legal experts say that while the Hague Convention does have safeguards for women, India can also have a domestic law with stronger protection and then accede to the Convention.
“The Convention is to protect the interest of children. It is not for protecting the interest of the women. However, Article 13 of the Hague Convention states circumstances under which the child can’t be ordered to be returned. Additionally, according to the draft prepared by the WCD Ministry, the central authority can decide whether to accept or not an application demanding that a child be returned.”
However, the draft bill also then specifies exceptions under which a child can’t be returned. So, there is a three-tier protection available to women,” according to Anil Malhotra, who was the amicus curiae when the Punjab and Haryana High Court gave its recommendations on the matter.
“Not signing the Convention is not a good idea. This is like going backwards. If you make safeguards, checks and balances, you should sign the Convention and become a part of a civilised order whereby free movement of children is allowed,” Malhotra said.
There is immense international pressure on India, especially from the US and the UK, to accede to the Convention.
Susan S Jacobs, special adviser on children’s issues, the US State Department, had met WCD Minister Gandhi on September 15. There are at least 80 cases where an Indian parent has removed the child from the US and brought them to India.
The Hague Convention, signed by 94 countries, provides for a mechanism to return a child internationally abducted by a parent from one member country to another.