January 14, 2024

The Hague Convention on Civil Aspects of International Child Abduction: Protecting Children from Abduction

This article has been written by Mr. Abhishek Singh, a first year student of Banaras Hindu

 University, Varanasi.

 

Abstract-

Child Abduction is itself a traumatic phenomenon as the children are subjected to psychological distress but this distress increases manifold when the abductor is no one other than their own parents. This abduction of their own children by their parents is known as Parental abduction. The act refers to a situation where the child is removed from their home of residence and is retained in another country. The issue gained prominence when the globalization made inter-country travel easier and economical. The growing incidences resulted into the Hague convention on Civil Aspects of International Child Abduction. The Article aims to elaborate the provisions of the convention and analyses its effectiveness in the changing social values. It emphasizes on the need of a similar statute in Indian legislative space to deal with the issue and concludes by emphasizing on the relevance of the Convention.

Keywords– Child Abduction, Parental Abduction, Freedom, Voice of Child.

Introduction-

Custody of Child has always been a contentious issue as one spouse would always be at the losing end, eventually losing their child except occasional visits. Sometimes, this dissatisfaction can sometimes result into criminal activities, most commonly of child abduction where the child is removed from their common place of habitation. While, in domestic cases, the issue is easily resolved due to state machinery, the issue, however, gets complicated when the child after removed from their habitual residence is transported to another country. Even though, primary motive of the abductor is to establish a permanent relationship with their child but the other spouse whose child is abducted is subjected to immense financial and emotional hardships which could also lead to litigate in a foreign country. If this is not enough, the child too experiences psychological as well as emotional turmoil. To combat this issue, The Hague Convention on Civil Aspects of International Child Abduction was enacted on October 25, 1980 and entered into force on December 1, 1983. The growing mobility of families in recent decades due to growing interconnectivity as well as rising divorce rates at a global scale necessitates clarity on child custody as well as provisions on international child abduction by parents.

 

Overview-

Hague Convention on Civil Aspects of International Child Abduction is a multilateral treaty with the aim of protecting children from harmful effects of abduction and retention across international boundaries with the aim to bring them back to their normal place of habitation. The treaty instead of dealing a broader topic of child abduction, aims to address abduction due to a child being removed by a parent against the wish of the parent having the rightful custody or where the custody is not yet awarded to any party and provides mechanism for return of those children. The Convention was developed by Hague Conference on Private International Law and was concluded on 25th October 1980 and entered into force on December 1, 1983. It is currently the beacon convention in the subject matter with 103 parties of convention as of 2022. It has remained a novel convention even on the face of changing social realities with the sole reason of adaptability of its provisions.

Features and Provisions-

The Treaty is founded on four foundational principles which are as follows-

  • The removal of children is wrongful because it violates the right of the lawful guardian.
  • The interests of the children are safeguarded at the home of their residence.
  • The court at the residence of the child is best suitable to deal with the issue of custody.
  • The abducted children should be returned to their residence as soon as possible.

Article 1 of the convention also defines the objective of the convention as to secure the prompt return of children wrongfully removed or detained in any contracting state. From this, it is clear without any doubt that to apply the provisions of this convention, it is necessary that both the countries should be party to this. But a mere overview of the convention doesn’t give much insight about the intention of the framers of the convention. Therefore, some important sections are given as follows-

  • Article 3 deals with the criteria to decide that when retention of child can be considered wrongful. The sub-clause(a) states that where a right of custody which is given to a people or a group of them or an institution is breached by an action of the defendant while the subclause(b) deals with the interference of the enjoyment of custodial rights of the rightful guardian.
  • Article 4 states the age of the children for which the convention is applicable which is upto 16 years of age. After a child attains the age of 16 years, the convention ceases to apply.
  • Article 8- 20 deals with the procedural aspects of the convention. Some important one’s are individually dealt as under-
    • Article 8 provides that any person, institution or other body can apply to the central authority of the Child’s habitual residence or any other contracting state that can help in securing the return of the child. The application needs to be supplemented with the required documents which include date of birth document, Document supporting the claim of the custody and other mentioned documents.
    •  Article 9 provides for the provision that on receipt of the application, if the state is without any doubt about the authenticity of the application then it should forward the application to the central authority of the other concerned Contracting State.
    • Article 10 places a limitation on the measures that could be taken by the state where the child is in respect to the condition that they should try for voluntary return of the child.
    • Article 11 places a time restriction on the proceedings of the Contracting State where the child is currently at as it states that if the proceedings are taking more than six weeks, then they would be accountable for the delay to the applicant or the concerned Contracting State.
    • Article 12 provides the alternatives contracting states have on receipt of the application for return and made some substantial rule for the proceedings.
    • Article 13 is of much importance as it states the grounds on which the contracting state can reject the application to return the child. The grounds mentioned are that the applicant was not exercising the lawful custodial rights or have themselves consented for the same. The second ground is that if on return, child would be subjected to life-longing trauma and psychological disorders.
    • Article 14 deals with the restriction on the judicial process that would be applied as it explicitly mentions that specific procedures of the law that may have been applicable should be taken recourse too.
    • Article 15 imposes another obligation on the applicant which is to get another document from the Central Authority of the State to establish the claim that the removal was illegal.
    • Article 19 provides that the decision of the judicial authority would not be a decision on the custodial rights of the parties involved.
    • Article 20 provides that even if all the conditions specified are fulfilled, return of child can be prohibited if returning it would be against the Protection of Human Rights and Fundamental Freedoms.

From this, it is clear that the convention is wide in scope as it deals with rights of the applicant, child in question as well as the contracting states. However, the real effectiveness of any statute, rule or convention lies in its implementation rather than its provisions.

 

Analysis-

It is without any doubt that society has undergone some substantial changes from 1980s when the convention was created. Some notable one are dealt under-

  • The Convention was developed on the backdrop of the Dyer Report which assumed that the parent responsible for removing the child was the uncaring one and this removal was harmful for the psychology of the children. However, according to the statistics available on the website of Hague Conference, a large majority of the parents involved in “abducting” are the primary care-givers and where the women are the person involved in the activity, percentage reaches to 73 percent of the total.
  • The Convention while broad in its scope doesn’t deals with the rights of the children in these cases and treats them as subsidiaries of their parents.
  • It has been mentioned that in the proceedings according to the convention, children can raise their objection but the issue persists about the allotment of the weight assigned to the same.
  • Even if, the objection raised by the child in question is taken into consideration in the abduction proceedings, the same may not be in the court dealing with the custody rights which can ultimately give rise to a conflicting situation.
  • In 2002, the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children was enacted. While it doesn’t affects the jurisdiction of the Hague convention, its provisions too deals with the abduction cases which can lead to confusion in case of conflict between the provisions of the two.

However, despite a growing rift between the societal values of the time, the utility of the convention can’t be underestimated as it continues to spearhead the efforts for returning the abducted children to the state of their habitual residence at the international fora as the convention have served as an inspiration to the national laws of the countries which were formulated to deal with the same problem and have played an important role in bringing the issue at an international level.

Future Course of Action-

The solutions of the above mentioned problems are multifaceted and necessitates acceptance at a global scale to make it effective. One of the notable way can be Relocation. On 23–25 March 2010, an International Judicial Conference on cross border family relocation was held in Washington D.C. by the Hague Conference and the International Centre of Missing and Exploited children, where more than 50 judges and experts agreed on the inclusion of the principle of relocation. However, the idea have been currently abandoned. But, inclusion of it can surely help in solving the issue in cordial manner where both the parties are allowed to present their arguments and then a decision is reached about whether the child should be returned or not. Allowing Mediation, too can be a good step so as to ensure that the psychological health of the child is not harmed and the dispute can be resolved in a peaceful and cordial manner.

Indian Experience–

India, at the time of the writing of this article, is not a party of the Hague Convention on International Child Abduction on the main grounds of fear of degeneracy of supposed moral fabric. In India, Parental Child Abduction are not treated as an offence as parents are considered natural guardians of the child. Previously, the Indian Law was clear that if foreign children is taken to India without the consent of the spouse, then the child would be returned back to the country or place of residence. However, some judicial decisions raises some serious question about the same as in a decision dated March 2006, Bombay High Court at Goa decided that the normal custody hearings should be heard at Goa instead of their own countries. However, A favourable decision was also given by Delhi High Court in Gahun v. Gahun, 2006, where an application for the jurisdiction for custody was rejected. From this, it is without any doubt that statutory space is not clear about the duties as well as the rights of the parents and child in such cases and it is without any doubt, that the  matter is of much importance to be only left to the civil courts where contrary decisions can lead to confusion and would be ultimately, time-taking. Therefore, it is needed that a comprehensive statute should be enacted by the Parliament by taking inspiration from the Hague Convention, while simultaneously, balancing Indian societal values with it.

 

Conclusion-

In conclusion, the Hague Convention on the Civil Aspects of International Child Abduction stands as a significant and commendable international effort to address the issue of Child Abduction across borders. Adopted in 1980, the convention reflects a global commitment to protecting children from wrongful removal or retention by a parent and ensuring their prompt return to their country of habitual residence. The fundamental principles of the Convention revolves around the best interests of the child, aiming to minimize the trauma and disruption caused by international abduction.Over the years, the Hague Convention has proven instrumental in creating a framework for international cooperation, fostering communication between countries, and providing a legal mechanism to address cross-border child abductions. Despite its effectiveness, challenges and complexities persist, and ongoing efforts are necessary to enhance the implementation and enforcement of the convention. Absence of India as a signatory is also an issue at a national level and a concerted effort is needed to push the topic at the forefront of the country’s priorities.

In conclusion, the Hague Convention represents a crucial step forward in addressing the complexities surrounding international child abduction, emphasizing collaboration and adherence to established legal procedures. Continued international commitment, awareness, and improvements in the implementation of the convention will further strengthen its effectiveness in safeguarding the well-being of abducted children and promoting global cooperation in family law matters.

 

References-

 

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