On May 18 2017, the Ministry of Women and Child Development constituted a multi 13 member high level Committee to examine issues relating to inter-country parental child removal and suggest a model legislation to safeguard interest of parents and children both within India and beyond its territorial borders. A concept note on the proposition was put up by the Committee for eliciting public views, comments and suggestions at an international level. Thereafter, interactions by video conferencing and direct meetings took place at New Delhi and Bangalore with left behind parents located domestically and internationally, besides seeking opinion of stakeholders, institutions and foreign missions who had viewpoints to express.
The Committee examined international instruments, domestic laws and a large volume of legal and other literature to delve into the position of inter-country parental child removal issues existing in other nations to draw up a comparative perspective. The unique joint family support structure of the Indian societal network in India had a special relevance to the equivalence of foster care advocated in foreign nations. The perspective of domestic violence faced by Indian spouses in foreign jurisdictions upon return with removed children was a legally grappling issue which needs a sympathetic remedial resolution and posed to be a major issue in enactment of any proposed legislation.
The Committee was faced with unique propositions put forth before it with regard to difficulties, both domestic and international, faced by affected parents if a removed child was sought to be returned to its country of habitual residence by a domestic Court. Ailing issues faced abroad pertained to legal protection from spousal violence, maintenance, immunity from criminal prosecution, litigation costs, custody and visitation rights, besides insecurity and alienation stemming from unfriendly legal procedures foisted by harsh penal laws of child abduction in an international arena.
The Committee found a special emphasis on mediation methods which could find a place in peaceful settlement and burial of the hatchet when warring parents sought to resolve their differences in the larger interest of their progeny. International instruments, particularly the Japanese structures and the Hague Guide to Good Practice with its deliberations provided very useful food for thought. Consequently, a strong mediation mechanism was proposed as an alternative to belligerent Court battles.
India afforded the protection of the United Nation Convention on the Rights of the Child (UNCRC) by acceding to it on December 11, 1992, and thereafter drastically amended the Juvenile Justice (Care and Protection of Children) Act, 2000 in a refurbished 2015 attire, which gives force of the legislative intent to putting “best interest of child” under a sky of the vast beneficial parameters of UNCRC. The general principles of care and protection of children had a special value for the Committee to consider and had to be moulded and blended with conflicting parental interests, lobbied by internationally located spouses who pitched with their unique, heart rendering experiences.
Coining the parameters and giving a legal colour to wrongful removal or retention of children, within the four corners of India or beyond its territorial borders, has for the first time found definition in Indian child law jurisprudence. Till date, illegal removal, retention or holding custody by one parent to the exclusion of other does not find recognition as a legal wrong and thus securing a lawful remedy for return was undetermined. Thus in the ultimate draft Protection of Children (Inter-Country Removal and Retention) Bill, 2018, the proposed legislation put forth by the Committee, has for the first time defined wrongful removal or retention of children as an act committed breaching rights of custody actually exercised before such violation occurred by a natural parent, by reason of a judicial order, operation of law or an agreement. From this, thereafter flows in the proposed Bill, the complete process of an operational machinery for implementation of child rights in an inter-parental dispute resolution scheme.
The issue of coining a Central Authority, as is visualised under the Hague Convention posed a major challenge. In the ultimate draft Protection of Children (Inter-Country Removal and Retention) Bill, 2018, the Committee has recommended constitution of a four member “Inter-Country Parental Child Removal Disputes Resolution Authority” proposed to be headed by a Chief Justice of a High Court as its Chairperson and three other members from the Ministries of Women and Child Development, Foreign Affairs and Home Affairs. This Authority is proposed to adjudicate applications pertaining to wrongful removal or retention of children and taking appropriate measures for discovering their whereabouts, prevent harm, secure return and perform other related functions to be discharged through powers as vested in a Civil Court. The procedure for making such an application, obtaining interim orders and possible exceptions, arrangements with other countries, rights of access, have been put down in the proposed Bill and to be decided with a time frame of one year for expeditious disposal of applications. The unique feature of providing exceptions for return of children encapsulate key features such as, best interest of the child, grave risk or psychological harm, domestic violence, mental or physical cruelty or harassment, besides age of majority, wishes of the child or any other reasons to be recorded by the Authority. The multi-member Authority would have jurisdiction to ensure through diplomatic channels or otherwise, proper education, well-being and security to children returned from India to country of habitual residence.
The pivotal leadership role played by Mr. Justice Rajesh Bindal as Chairperson of the Committee, in motivating tireless efforts, eliciting international perspectives, delving legal and other literature, seeking valuable thoughts of experts and inspiring new perspectives, gave an extended lease to the laudable task of the Committee. Despite his time consuming judicial duties and multifarious administrative responsibilities, he conscientiously devoted extra energies by burning the midnight oil to open new arenas and examine minutest details which had not even occurred to the present author with his over three decade experiences professionally and academically in the horizons of this challenging child law jurisprudence. No stone was left unturned by Justice Bindal in this monumental exercise. His diligent, painstaking and meticulous efforts were indeed commendable.
Ms. Justice Mukta Gupta with her mature and far-fetched perception lent extremely significant propositions which open new perspectives. Mrs.
Justice Anita Chaudhry with her vast judicial experience of handling family law related matters opened up new vistas which were of immense significance. Mr. Justice R.K. Garg with his role building stellar performance as Chairman of the Punjab State NRI Commission provided the Committee with practical perspectives suitable to Indian parents facing child removal dilemmas. The brilliant coordination, mapping, consolidation and effective working of the Committee could not have been achieved but for the pivotal role played by Member Secretary Ms. Meenaxee Raj. We the taught, all began with our teacher Dr. Balram K. Gupta, Director Judicial Academy, who as a role model with his judicial blend of his vast academic forays, professional pursuits and devotion to teaching, gave us the insights of parens patriae jurisdiction, which was the light house in the sea of unchartered waters. The Committee set course, sailed, traversed its chartered path, and has now docked its report with the authorities who will ponder and deliberate over the herculean exercise conducted for the benefit of the most precious commodity of our society that is, our offspring, and is dedicated to our nation which has the highest global population of children. We are at cross roads and we now need a law to reign in this unbridled dilemma, whereby, contending parents will find a legal umbrella to their human problems. The Report of the Committee dated April 21, 2018, has it all in it for meaningful consideration.
*The author, a practicing lawyer, has to his credit seven books pertaining to issues of private international law. He is the co-author of, “India, Inter-Country Parental Child Removal and the Law,” (Lexis Nexis 2016). He can be reached at firstname.lastname@example.org. Views express herein are personal.