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India: Decision Not to Sign Hague Treaty on Child Abduction

(Jan. 23, 2017) In a decision made by the Women and Child Development (WCD) Minister, Maneka Gandhi, and agreed to by the Ministry of External Affairs, the government of India has decided not to ratify the Hague Convention on Child Abduction. (Shalini Nair, India Will Not Ink Hague Treaty on Civil Aspects of Child Abduction, INDIAN EXPRESS (Nov. 27, 2016); Hague Conference on Private International Law, Convention on the Civil Aspects of International Child Abduction (Hague Convention), Oct. 25, 1980, HCCH No. 28, Hague Conference website.) Indian media outlets reported on November 6, 2016, that the decision not to ratify was a certainty and then on November 27 that the decision had been made.  (Govt Likely to Junk Inter-Parental Child Abduction Bill, TRIBUNE (Nov. 6, 2016); Nair, supra.)

The Hague Convention, which at present has 95 signatories (Status Table: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Hague Conference website (last updated July 27, 2016)), aims to protect children from the harmful effects of international abduction by a parent by encouraging the prompt return of abducted children to their country of habitual residence, and to organize or secure the effective rights of access to a child. … [C]ustody and visitation matters should generally be decided by the proper court in the country of the child’s habitual residence. (Important Features of the Hague Abduction Convention – Why the Hague Convention Matters, U.S. Department of State, Bureau of Consular Affairs website (last visited Jan. 11, 2016).)

Background

Gandhi’s decision marks a turnaround in the direction the Indian government had been taking in its approach to international child abduction. The government had come under international pressure, particularly from the United States and the United Kingdom, to accede to the Convention.  (Govt Likely to Junk Inter-Parental Child Abduction Bill, supra.)  In 2009, the government’s own Law Commission, headed by former Supreme Court judge Dr. A.R. Lakshmanan, had issued a report calling on the government to ratify the Hague Convention. (Law Commission of India, Need to Accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980), Report No. 218 (Mar. 2009), Law Commission website.) Furthermore, in February 2016, the Punjab and Haryana High Court asked the Law Commission of India to again recommend that the government sign the Hague Convention and adopt a related law because, in the words of Justice Rajive Bhalla, “for want [of] the Union of India acceding to the Hague Convention and or enacting a domestic law, children will continue to be spirited away from and to India, with courts and authorities standing by in despair.”  (Ajay Sura, High Court Urges Law Commission to Recommend Signing of Hague Convention, TIMES OF INDIA (Mar. 5, 2016).)

In line with these recommendations, the WCD Ministry in June 2016 issued a draft of the Civil Aspects of International Child Abduction Bill, 2016 and a notice on the bill, No. CW-I-31/59/2016-CW-I  of June 22, 2016 (both available at Bring Our Kids Home website), which reflected the provisions of the Hague Convention and would have paved the way for India’s accession to it.  The draft bill had reportedly specified that a decision under the Hague Convention to return a child would not be final, and courts would have the power to deny custody if the person caring for the child was putting the child at grave risk of physical or psychological harm or was not actually exercising the custody rights.  (Govt Likely to Junk Inter-Parental Child Abduction Bill, supra; Mayura Janwalkar, In US, 80 Abduction Cases in Which Parent Took Child to India, Says Susan S Jacobs, Special Adviser on Children’s Issues), INDIAN EXPRESS (Sept. 16, 2016). The bill 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.  (Govt Likely to Junk Inter-Parental Child Abduction Bill, supra.)

Defense of the Decision 

Defending the government’s decision not to sign the Convention, a WCD Ministry official stated that signing it would be to the disadvantage of Indian women in that there were far more cases of Indian women escaping bad marriages abroad and returning “to the safety of their homes” in India than non-Indian women who are married to Indian men leaving India with their children, and that the majority of such cases involved women fleeing, not men. (Nair, supra.)  Another government official claimed that developed countries had pressured India to sign the treaty on the basis of gender equality and establishing the father’s rights to the child as equal to those of the mother, “[b]ut that doesn’t apply here given the reality of Indian marriages.”  (Govt Likely to Junk Inter-Parental Child Abduction Bill, supra.)  Gandhi herself claimed to have originally supported signing the Hague Convention but changed her mind over 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 [together] the money [to flee] and are in terrible fear.” (Id.)

Some Indian women who left the U.S. with their children have claimed that they and/or their children were subjected to routine, psychologically traumatic abuse by their husbands and in-laws. When they made complaints to the authorities, either no action was taken, they were forced to move into shelters, or their children were removed by child protective services.  (Ananya Sengupta, Mothers in Hague Plea – Call to Govt Not to Sign Child Abduction Convention, TELEGRAPH (Aug. 18, 2016).)

Reinforcing such claims, opponents of signing the Convention point to a 2010 research report on Hague Convention cases showing that globally 68% of the taking parents were mothers, 85% of these mothers were the primary caregivers of their children, and 54% had gone home to a country in which they held citizenship, with the majority being women fleeing abusive and violent homes. In the view of Convention opponents, half of Hague Convention cases are not actually “parental abduction” but “flights to safety.”  Moreover, the Hague Convention, drafted before most of the social science research on domestic violence and its effects on children had been conducted, was framed with the understanding that usually it was a noncustodial father who took children from their primary caregiver (their mother) and that it was left-behind parents who had been unfairly harmed by abductions, rather than women crossing international borders with their children to escape serious abuse, often from countries where many barriers to help may exist.  (Jeffrey L. Edleson et. al., Multiple Perspectives on Battered Mothers and Their Children Fleeing to the United States for Safety: A Study of Hague Convention Cases (Berkeley Project Report), Final Report, NIJ #2006-WG-BX-0006, Goldman School of Public Policy, Univ. of Cal.-Berkeley website (Nov. 2010).)

Views Supporting Accession to the Convention

In contrast, advocates for signing the Convention and passing an Indian anti-child-abduction bill maintained in the run-up to the government’s decision that Indian policy makers were focusing too narrowly on the issue of “Indian women being abused,” instead of accepting that there are numerous reasons why parents abduct their children, and experts consider child abduction to be child abuse with long-lasting traumatic effects. (Why Is India Reluctant to Act Against Parental Child Abduction?, Bring Our Kids Home website (Oct. 23, 2015).) Reasons for abduction, according to the Canadian Centre for Child Protection, include a parent feeling unjustly treated by the court process or frustrated with custody arrangements, a contentious divorce or break-up, an effort to exert control over an ex-spouse or partner, a way to deprive the other parent of access to the child, and a parent’s concerns for his/her safety or the safety of his/her child.  (Parental Child Abduction: Why Do Parents Abduct Their Children?, Missingkids.CA website (last visited Jan. 11, 2017).)

While parental child abduction is a criminal offense under the Indian Penal Code, because India has not signed the Hague Convention, there is no way for a foreign government to force the abducting parent or the Indian government to return an abducted child. (Child Abduction – India, GOV.U.K. (last visited Jan. 11, 2017).) The U.S. State Department, in its 2016 international child abduction report, stated, “India demonstrated a pattern of noncompliance by persistently failing to work with the United States to resolve abduction cases in 2015.” (Bureau of Consular Affairs, Annual Report on International Parental Child Abduction (IPCA) 35 (2016), U.S. Department of State website.)  This lack of compliance is also reflected in the attitudes of Indian courts toward international child abduction cases, which have provoked great criticism of the courts and caused India to be widely branded as a “safe haven” for abducting parents.  The criticisms include

  • judges deciding abduction cases on an arbitrary basis, and wrongfully asserting jurisdiction over foreign nationals and non-resident Indians (What Is IPCA?, Bring Our Kids Home website (last visited Jan. 11, 2017));
  • Indian courts choosing to relitigate custody decisions already made in the best interest of the child by courts where the child resided prior to the abduction, with children rarely returned to their countries of habitual residence (Janwalkar, supra);
  • the inability of Indian courts to prove or disprove abuse charges effectively, given jurisdiction limits, or to subpoena evidence or witnesses from abroad (Open Letter to the Editor – Scroll.in and Ms. Mridula Chari, Bring Our Kids Home website (Aug. 21, 2016));
  • long and costly delays left-behind parents face in litigating their cases in Indian courts from abroad because of the huge case backlogs (What Is IPCA, supra); and
  • cultural and gender bias pervasive in Indian society that leads to negative stereotyping of left-behind fathers as abusive and encourages the filing of false abuse claims (id.).

Finally, proponents of the Convention claim that the Berkley Project Report cited above, which reviewed cases of abducting mothers bringing children to the U.S., not fleeing the U.S. for India with their children, was flawed in that only 22 mothers claiming abuse were interviewed and none of the claims were verified by the report’s authors, no fathers or judges were interviewed, the definition of abuse was extremely broad, and the authors themselves “all but admit that their findings cannot be generalized.” (Robert Franklin, Time Magazine Urges Changes to Hague Convention to Help Mothers Who Abduct Their Children, National Parents Organization website (Jan. 4, 2011).)