RETURN OF CHILDREN - A LAW IN THE MAKING

“Teacher, leave the kids alone” - the satirical adage flowing from the popular lyric of Pink Floyd, the iconic British rock band, seems to have a unique parallel application today to parents in the Indian subcontinent. Thorny legal issues and intricate human complications confront fathers and mothers of children in the unchartered jurisprudence of transnational inter-spousal child removal. It is sad that when siblings are abducted by their own parents to India, whilst custody issues are pending determination in law courts of their foreign homes of habitual permanent residence, there is little that local law enforcement organizations can do to remedy the situation to locate surreptitiously removed children. Even our halls of justice are not equipped with codified family laws or, ironically, armed under specific child custody laws to pass directions to deliberate returning them to their homes in a foreign jurisdiction. It is a legal stalemate, a deadlock. An aggrieved parent armed with a foreign court order requiring return of the child finds no slot in the Indian legal system, wherein a wholesome statutory remedy can be invoked for effective relief. Regardless, the vibrant and dynamic Indian legal system copes up to devise practical solutions to provide succor under the Indian Constitution, invoking the Habeas Corpus extraordinary writ jurisdiction of the Supreme Court or a High Court.Sadly, in bitter disputed custody battles requiring conventional evidence to be established,parties are relegated to a remedy under an antique legislation i.e. the Guardians and Wards Act, 1890. Natural parents then have to seek resolution of rights of access, custody, guardianship and visitation as a last resort of the proof of their superior parental rights. 

The dilemma has now escalated. Unwittingly, the converse reality has also dawned.Children from India are also seen to be clandestinely removed to foreign jurisdictions and cannot either be traced abroad or legally directed to be returned to India. The flux and stalemate brings bonds of minor offspring with their doting parents to the rock bottom ebb of family bonding, filial security and parental confidence. Families get split across countries and simultaneous parallel child custody litigations are initiated under separate legal systems of different nations. Conflicts in law rule the roost. Children parked in India are exposed to outmoded legal procedures, sans timely effective solutions. We do not have comprehensive codified custody laws to deal with child removal issues which are thrown open loosely to be adjudicated by conventional courts in the best interest of the child axiom. Protracted delay, cumbersome technical Court procedures, mounting legal costs, time constraints and an unending legal process, does not help. An impasse prevails

The Hague Convention on Civil Aspects of International Child Abduction (concluded on October 25, 1980), desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, has 94 nation members as party to this Convention. It is the wholesome international therapy for this global malaise. The issue of Indian accession to the Hague convention first came about in 2007, but did not reach a logical end. The Civil Aspects of International Child Abduction Bill, 2007 to secure the prompt return of wrongly removed or retained children lapsed without reaching Parliament. Thus, multinational global Indians in mounting numbers face a paradox. Foreign Courts rarely allow children to visit India, fearing non return. The issue has acquired proportions of a hugely magnified unruly horse which has to be reined in. The dead end must be breached.

Happily, by a communication of June 22, 2016, the Ministry of Women and Child Development had uploaded on its website, a proposal to enact a draft of The Civil Aspects of International Child Abduction Bill, 2016, considering that before accession to the Hague Convention, it is imperative to have an enabling legislation in India to give teeth to the provisions of the Convention in India. The draft Bill provides to designate a Central Authority and lays down a procedure for ensuring return of removed children as also seeking return of children wrongfully removed to and from India.

The proposed Indian Bill considers removal or retention of a child in India to be wrongful if it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone at a place where the child was habitually resident immediately before removal or retention. It further stipulates that such rights of custody were being actually exercised, either jointly or alone by such person, institution or body before removal or retention, as a necessary requirement.

The said draft Bill was prepared following a reference made by the Punjab and Haryana High Court in 2016 to the Law Commission of India and the Ministry of Women and Child Development to examine the issue and thereafter consider whether recommendations should be made for enacting a suitable law on the subject and for signing the Hague Convention. The High Court had made this reference when despite all efforts made by the author as amicus curiae and the CBI, a minor child remained untraceable after she was removed from the de jure custody of the Court and taken abroad by misusing an interim order of 2006. Taking on record a detailed report submitted by the author as amicus curiae, the Court had observed in its order that for want to the Indian Government acceding to the Hague Convention or enacting a domestic law, children would continue to be spirited away from and to India, with Courts and authorities “standing by in despair”.

The Law Commission of India in Report No. 263 titled “The Protection of Children (Inter-Country Removal and Retention) Bill, 2016 on 17 October 2016 “addresses the concerns relating to children and their parents and makes an attempt to set the stage for India to sign the Hague Convention, 1980.” This effort in suggesting changes to the draft Bill made by the Ministry of Women and Child Development is laudable and salutary. It identifies applicability of the law to all children under 16 years of age retained in India irrespective of nationality, religion or status in India. It carves out an exception to protect a person removing the child who is a victim of “domestic violence”. However, the proposal to impose punishment for wrongful removal or retention, by imprisonment up to one year and /or fine, defeats the very purpose of the proposed law “to ensure the prompt expeditious return of children wrongfully removed or retained” to the country of their habitual residence, is self-contradictory. The Convention vests the prerogative with the country of habitual residence to decide issues of wrongful removal or retention. Hence, imposing punishment by a law in India may be prejudging the issue and will be self-destructive of forging amicable solutions to reunite families where children have been separated.    

India’s accession to the Hague Convention would resolve the issue of inter-country parental child removal since it is based on the principle of reverting the situation to status quo ante and on the principle that the removed child ought to be promptly returned to his or her country of habitual residence to enable a Court of that country to examine the merits of the custody dispute and thereupon award care and control in the child’s best interest. The Convention advocates so, because the courts of such country where the child had permanent or habitual residence are considered to be in a better position to determine the best interest of the child, as the environment and living conditions of such home turf are better suited to determine welfare of the child where substantial period of his life has been spent. The home State would know it better. This step forward may be a start to a happy ending of a long sad tale. We must act post haste.