The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that establishes procedures that provide for the prompt return of children wrongfully retained or removed from their habitual residence. The Convention applies to children under age of 16 years. The Convention applies to children under age of 16 years.
- The taking away of the child by a parent to another country is known as “inter-country child abduction”. Due to the rapid increase in globalisation and augmented transnational movement of individuals and families, there is an unparalleled spurt in family-related disputes, especially concerning the custody of children.
- The adoption of The Hague Convention on the Civil Aspects of International Child Abduction in 1980 was an effort of international collaboration to combat the issue of transnational inter-country abduction.
- The Convention is an attempt to prevent the wrongful removal of the child and to ensure the return of the child to her habitual residence. The Convention’s objectives are: Reverse the abduction to help mitigate the psychological trauma for the child and return the child to her habitual residence. One hundred and one countries are signatories to this Convention that shields children under 16 years from “wrongful removal or retention” by a parent.
- The Convention requires the establishment of a central body in signatory countries to assist parents in locating the abducted children and help in promoting harmonious solutions to such cases. It also mandates that the country to which the parent flees with the child has to send back both to the child’s “habitual place of residence”.
- Under the Convention, removal or retention of a child is “wrongful”, if it is in breach of “rights of custody” in the child’s country of habitual residence. However, there are exceptions to the State’s requirement to return a child if there is a serious danger of physical or psychological harm to the child or the child’s objection to the return.
- Since India is not a signatory to the Hague Convention, any case related to child custody is decided by the Indian courts on merit, taking into account the principles of comity of courts, and the principles of best interest and welfare of the child.
- In Dhanwanti Joshi vs Madhav Unde, the SC observed that the welfare of a child is of paramount importance and the order of any foreign court is only a factor to be taken into consideration while dealing with child custody matters.
- Despite the Hague Convention having garnered robust international support, India continues to oppose it. It was thought that acceding to the Convention would hamper the protection of Indian women and children from difficult living situations, especially in cases of those suffering from domestic violence in NRI marriages.
- The decision not to accede to the Convention runs contrary to the recommendations given by the Law Commission in 2009, which endorsed the accession.
- The remedy is found in a reverse statute on child protection located in the jurisdiction of Indian courts. Our courts have ‘parens patriae’ authority over children, which means that they are the ultimate guardians of the children under their jurisdiction.
- When confronted with a claim from a father alleging that the kid was taken from his care despite a court order granting him custody, the court must evaluate if it is in the best interests of the child to send the child back to a foreign state.
- However, in the current scenario, it is imperative for the country to adopt a comprehensive law addressing the international child abduction by adhering to the principles set out in the Hague Convention.
How to structure:
- Give an intro the Hague convention on Civil Aspects of International Child Abduction.
- Explain the objectives an bring out the importance of it with supporting facts
- Explain India’s adherence to it