The Justice Rajesh Bindal Committee has come out with a comprehensive report touching upon the possible way forward for India in tackling issues of disputed inter-country parental child removal and retention.
The Committee was tasked last year to examine, inter alia, whether India should accede to the International Convention on Civil Aspects of International Child Abduction, 1980 i.e. the Hague Convention.
The Hague Convention was intended to address cases where children are forcibly taken away from one parent by the other across country borders. Viewing the same as a form of abduction, the Convention aims to facilitate the expeditious return of the child to the country from where she was taken.
The object was to preserve the status quo child custody arrangement, as it existed before such parental child abduction, by returning to the child to her habitual residence. The Convention only applies where the child is below 16 years of age.
Why was the Justice Rajesh Bindal Committee constituted?
The 218th Report of the Law Commission had recommended that India become a signatory to the Hague Convention. The Justice Rajesh Bindal Committee was constituted subsequently in May 2017 to examine the viability of this proposal.
The Committee has therefore examined two bills drafted by the Central Government i.e. the Children (Inter-Country Removal and Retention) Bill, 2016 and the International Child Abduction Bill, 2016.
While making recommendations in the area, the Committee has also proposed a new bill i.e. the Protection of Children (Inter-Country Parental Removal and Retention) Bill, 2018 (‘2018 Bill’).
The Committee has detailed several recommendations after taking into account views presented by various stakeholders.
What did the stakeholders say?
The stakeholders had pointed out that a blanket acceptance of the Hague Convention would be counter-productive. Instead, it was suggested that India should work towards considerable amendments to the Hague Convention, and come up with its own jurisprudence on the basic premise of what is in best interest of the child.
Critics opined that the Convention does not accommodate the socio-cultural set up in India, that it could jeopardise the lives of vulnerable Indian women in foreign countries, and that it would be against India’s sovereign interests. It was therefore argued that the Convention was outdated, irrelevant and dangerous (in some scenarios), as far as India is concerned.
Proponents argued that if the Convention is signed, it would provide a streamlined remedy for the expeditious return of the child in cases of wrongful inter-country parental abduction.
After the child is so returned, the custody determination can be based on the principle of the best interests of the child. Further, the Convention may provide a better alternative to resolve such issues, as opposed to relying on the Indian Court system, which is rife with procedural delays.
A constant theme in the recommendations made by the Committee is the need to prioritise the best interests of the child and to opt for mediation strategies to resolve disputes.
These interests are proposed to be carried out through a national-level authority i.e. the Inter-Country Parental Child Removal Disputes Resolution Authority (‘Authority’). Notable features of the proposed Authority include the following:
Composition: The Authority should be headed by a sitting or retired Supreme Court judge, or a Chief Justice or judge of a High Court with at least five years’ experience, and experts with at least twenty years’ experience in the field.
The Authority should function with three appointed members to decide on applications. Further, it is suggested that at least one among the members must be a woman, given that mothers are ordinarily the primary care givers (either individually or jointly with fathers).
Functions: Overall, it appears that the authority would play a role similar to that of “Central Authority” under Article 6 of the Hague Convention.
A parent would immediately have to report to this Authority when she arrives in India with her child, in a case of disputed inter-country parental child removal.
Indian Embassies could be tasked with educating persons residing abroad of the Authority’s existence after it is constituted. The myriad functions of the Authority include:
To discover the whereabouts of children wrongfully removed to, or retained in India, or outside India
To take appropriate measures to prevent harm to such child or other interested party.
To secure the voluntary return of such child to the country of its habitual residence or to bring about an amicable resolution in the dispute
Facilitating immediate access for the parent left behind in the foreign country to the removed child. This is to avoid allegations that the child was tutored by the taking-parent. Such access can be allowed on mutually agreed terms or on an order of the Authority or the Court
Ensuring the well-being of the child through diplomatic and other channels before allowing the child to be taken to another country. Section 24 of the draft 2018 Bill lists exceptional scenarios where the Authority may refuse the return of the child in the interest of the child’s well-being.
Facilitating behavioural counselling and other aid to the child/applicants, for which the services of authorities under the Child Rights Act, 2005 may be enlisted.
Maintenance of a database of Indians residing abroad. Indian families abroad will have to notify the authority of any additions/modifications to the family.
Mediation first: It is proposed that mediation would be mandatory at the first instance in all cases. To this end, the Committee has recommended that a list of trained mediators be made available on the Central authority’s site for the disputing parties to choose from.
However, on request or if necessary, the Central authority should facilitate the provision of legal aid to the parties. A list of advocates willing to provide pro bono services should also be listed on the authority’s website.
Best Interests of the Child: This aspect is to form the basis of all the decisions to be made by the Authority. The best interests of the child has been expressly incorporated into the proposed 2018 Bill, as one of the exceptions for refusing the return of a child in these disputes. This is to ensure that the child is not merely treated as a pawn or reduced to a commodity.
In similar interest, the proceedings before the authority would be kept confidential. Such proceedings would be held in-camera as far as possible. Notably, foster care is also not encouraged by the Committee, as it is likely to alienate the child from the parent.
It has been recommended that the 2018 Bill, which incorporates these provisions, be added either as an independent law or as a chapter to the Juvenile Justice Act (Care and Protection of Children) Act, 2015.
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