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Bill on Child Abduction

Child abduction is the situation arises, when any foreign nationals living in India are going back or Indian live abroad are moving back to India. Situation gets worsen, when parents are migrating to different countries and child is taken along by one parent, without the permission of other.

This is considered as prerequisite to India’saccession to the Hague Convention.

Hague Convention on Civil Aspects of International Child Abduction is a multilateral treaty which has Ninety-four parties (India is not one of them) and entered into force between the signatories in 1983.

This multilateral treaty protect children internationally and establish law for

• Wrongful removal or retention,

• Prompt return to the State of their habitual residence (place or country from where child has removed), &

• To secure protection for rights of access. 

The question of India’s accession to the Convention first came about in 2007, but reached no logical end, when the Civil Aspects of International Child Abduction Bill-2007, to secure the prompt return of wrongly removed or returned children, lapsed before reaching Parliament.

What is the requirement of the Bill?

This Bill is all about the rights of child, who is abducted cross-country by his or her own family member, including the parents.This situation arises, 

• When any foreign nationals living in India are going back and take child along with him/her without the permission of partner.

• Indian live abroad are moving back to India and bring back child along with him/her without the permission of partner.

Situation gets worsen, when parents are migrating to different countries and child is taken along by one parent, without the permission of other.

It is unfortunate that an aggrieved parent with a foreign court order requiring return of the child finds no slot in the Indian legal system. Regardless, the Indian legal system provides remedy by invoking the habeas corpus writ.

Then only solution left with parent is to gather conventional evidence to be established fall under the outdated Guardians and Wards Act, 1890. 

Parents then have to seek resolution of rights of access, custody, guardianship and visitation as a last resort of the proof of their superior parental rights.

Recently, a petition begun by Bring Our Kids Home, or BOKH (a coalition of such parents in the US) requested Prime Minister Narendra Modi and President Barack Obama to sign a bilateral agreement on the subject.

Salient features the Civil Aspects of International Child Abduction Bill, 2016

• The Bill provides for the constitution of a Central Authority. 

• A decision under the Hague Convention, 1980 concerning the return of the child is not a final determination on merits of the issue of custody as India is not a signatory of it.

• It outlines the role of the Central authorities with regard to a child, who is removed to India, and from India to another Contracting State of the Hague Convention, 1980. 

• It lays down procedure for securing the return of a child and provides for the Central Authority to apply to the High Court for restoring custody of the child. 

• It empowers the Court to deny custody on certain grounds. It allows the Courts in India to recognize decisions of State of the ‘habitual residence’ of the child. 

• It also states that the Indian Court that wants to disregard the interim/final order of the foreign court must record reasons for the same.

Law Commission’s Suggestions

The 21st Law Commission in its first report (LCI report no.-263), recommended a series of changes in the draft Civil Aspects of International Child Abduction Bill-2016 which includes:

• Removal of the term ‘abduction’ from the Bill, to bring it in compatible with the Hague Convention, which in its opinion employs the term as a short hand for a more appropriate terminology, “wrongful removal or retention”.

• It extends its application to children below 16 years of age, which was defined as ‘appropriate age with degree of maturity’.

• One year jail term for wrongful retention or removal of a child from the custody of a parent.

• Provision for payment of expenses incurred by the Central Authority, by the offender.

• The offenders may include one of the parents or family, relatives and others.

• Three months’ punishment for wilful misrepresentation or concealment of fact, thereby preventing the safe return of the child.

• It mandates maintenance of records concerning applications and cases brought to the Central Authority.

According to the 21st Law commission, these proposed revisions are must for harmonies of its provisions with the Hague Convention. 

 

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