‘Return of child to place of habitual residence may not be in best interest’

‘Return of child to place of habitual residence may not be in best interest’

Context

Concept of “Habitual Residence” questioned

Pressure on India from US to accede to the Hague convention

There is immense pressure on India from the U.S. to accede to the Hague Convention on the Civil Aspects of International Child Abduction, which is a multi-national treaty that seeks to protect children wrongfully removed by one of the parents from the custody of the other parent.

Justice Rakesh Bindal Committee

The Justice Rajesh Bindal Committee was set up last year to suggest a model legislation to safeguard the interest of the child as well those of the parents when an NRI (Non Resident Indian) marriage goes sour and one of the parents flees from one country to another with the child (e.g. a woman fleeing the country of his husband with the child)

Observations of the Committee

• The Committee feels that the concept of habitual residence is not synchronous with the best interest of the child
• It adds that returning a child to the place of habitual residence may result in sending the child to an inharmonious set-up as well as overlook the fact that a mother is the primary caregiver of the child
• The panel has also prepared a draft law to safeguard the interest of the children, as well as those of the parents, particularly mothers.
• The proposed legislation lays down nine exceptions under which a child will not be returned to the country of habitual residence

Conditions for refusal

The important conditions under which a child’s return can be refused are — best interest of the child, domestic violence or mental or physical cruelty or harassment against the parent who fled with the child, the parent claiming the return of the child was not exercising the custody rights at the time of removal, and if there is a grave risk that the child would be exposed to physical or psychological harm.

Inter-Country Parental Child Removal Disputes Resolution Authority

The report also requires the setting up of an Inter-Country Parental Child Removal Disputes Resolution Authority, which will be the nodal body to decide on the custody of the child, mediate between the warring parties, as well as order the return of the child to the country of habitual residence

Indian family system

The panel has also emphasised the importance of the “Indian family system” in ensuring the best interest of the child, seemingly to question the logic behind returning the child to a place of habitual residence outside India

What now?

• The Committee submitted its report to Women and Child Development Minister
• The Ministry will be circulating the report to the Ministries of External affairs and Home Affairs for their inputs.
• Once the Central government decides to set-up the Authority and frames a law on the issue, it is expected to take a decision on whether it should accede to the Hague Convention