Centre rethinks joining Hague child custody pact

The Hague Convention

[Click  above to Download pdf]

Why in news?

An “inter-ministerial process” is under way to discuss the repercussions of the Hague convention on India. The government had in November 2016 announced that it would not sign the convention.

Facts for Prelims:

• Passed in 1980, the Hague Convention on International Child Abduction, which came into force in 1983, rules that in any child custody case, the court of the country where the child is a “habitual resident” will adjudicate who will get custody.

• The Ministry of Women and Child Development has reservations about the treaty because they believe it could trample on women’s rights.

About Hague Convention,

• The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.• The Convention was concluded 25 October 1980 and entered into force between the signatories on 1 December 1983.

• The Convention was drafted to ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.• The Convention applies only to children under the age of 16.

• As of September 2017, 98 states are party to the convention. In 2016, Philippines and Pakistan acceded to the convention.

Analysis for Mains:

Law Commission Report No 218

Background

• Statistics show that the number of divorce cases and custody disputes has increased ever since the advent of globalization and technological development leading to a very busy life-style and work culture.

• The international parental child abduction/child removal finds its root here.

International parental child abduction 

• International parental child abduction or removal can be defined as the removal of a child by one parent from one country to another without the approval of the other parent.

• Child removal, in this context, encompasses an interference with the parental rights or right to contact with the removed child.

• These acts by a parent when brought before a court of law have in the past created considerable amount of confusion specifically in the area of competence of courts with regard to jurisdictional aspects.

The Hague Convention

• The Hague Convention lays down that, when a court has jurisdiction over a child, the first question to determine is whether the Hague Convention applies to the case. Two conditions must be satisfied before the Convention applies:(a) the child must be under 16 years of age; and(b) the child must have been habitually resident in a Convention country immediately before any breach of custody or access rights.

• The Hague Convention creates central authorities throughout the Convention countries to trace an unlawfully removed child and secure its return.

• It is important to consider what principles and rules determine whether a child is or is not to be returned to a Convention country.

• The Convention mandates return of the child only when there has been a wrongful removal or retention of a child from a Convention country (Article 12).

• In securing rights of access, the following issues should be considered:

a) wrongful removal or retention

b) excusable removal or retention;

c) access.

Recomendation:

• The Commission believe that India should keep pace and change according to the changing needs of the society.

• The Commission, therefore, recommends that the Government may consider that India should become a signatory to the Hague Convention which will in turn bring the prospects of achieving the return to India of children who have their homes in India.