This article is written by Mr. Tanmay Ujjwal a 1st year student at Army Law College, Pune

Abstract

The Hague Convention on the International Recovery of Child Support is a convention which helps in resolving disputes related to child support where 2 nations are involved. This convention has it own set of pros and cons but has india signed this convention and if yes why or if not why not you will find answers to these questions in this article

Introduction

In today era where separation has become a very normal thing. A problem related to child support obligations has arises, in suits where the custodial parent and the offspring live in one country and the noncustodial parent lives in other country. These types of cases are generally more challenging, time consuming for Child Support Enforcement workers as there is no established standards of proof, uniform procedures or methods of communication. In order to resolve this problem The Hague Convention on the International Recovery of Child Support was created  on 23rd November 2007. The Hague Convention on the International Recovery of child Support contains procedures for processing international child support cases that are intended to be uniform, simple, efficient, accessible and cost free for the parents seeking child support in other countries. For many international cases countries like U.S.A courts and state Child Support Enforcement (CSE) agencies already have and enforce child support obligations. However, many foreign countries does not enforce US child support orders in the absence of treaty obligations. U.S.A was the first country to sign the convention then came Albania, Bosnia and Herzegovina, The European Union, Norway and Ukraine and soo on. In this article we will discuss good aspects as well as bad aspects of the Convention  and also why has india not signed this convention .

Key Areas of The Hague Convention on the International Recovery of Child Support

Few aspects of the convention is

1. The convention provides a legal framework and administrative procedures that are modern as well as result centered
2. This convention speeds up the enforcement of U.S orders. It will limit the circumstances under which a court can review and object to an order. It obligates recognition of a U.S orders unless a respondent raises a challenge timely and it also limits available objections that the respondent may raise to those similar to ones now allowed under U.S. law.
3. The convention requires signatories to provide free legal assistance in child support cases. Title IV-D agencies in the U.S. already provide such assistance. Now other convention countries must provide cost-free services to U.S. residents as per convention
4. The convention also recognizes U.S due process requirements. It provides an opportunity to challenge recognition of a foreign support order if there was a lack of notice and an opportunity for a hearing.it also provides an opportunity to challenge if the order does not comply with the U.S. jurisdictional rules. It also allows a court to refuse recognition of an order if it is incompatible with public policy.
5. The convention provides standardized and time framed procedures. Each country which participates in convention must follow certain procedures to recognize and enforce child support orders

These features provide an environment in which these disputes can be resolved in a way is easier and faster by providing:-

1. Uniform Legal Standards

This convention establishes uniform legal standards for recognizing and enforcing child support orders across participating countries. This provides consistency and predictability in the application of the child support laws

2. Communication and information sharing

This convention facilitates direct communication between Central Authority of countries, facilitating for exchange of relevant information and documents. This results in expediting the resolution of child support cases by reducing bureaucratic hurdles

3. Central authority

Every member state is required to form a central authority that will be responsible for smoothing communication process and promoting cooperation between countries in matters related to child support. This structure helps in eliminating useless processes and increase efficiency in communication between authorizes.

4. Fast and simple process

This convention emphasizes use of a process which is rapid as well as simple for recognizing and enforcing decisions related to child support. This approach is designed to achieve more effective results in minimum time period by minimising delays in obtaining financial support for the child

5. Modern communication methods:

This conventions also encourages the use of modern communication methods to facilitate the exchange of information and documents between the parties and the central authorities of both the countries involved. This results in making the process more efficient and cost effective.

6. Cooperation between the countries

Countries that are member to the convention have to cooperate with each other. This cooperative approach enhances the effectiveness of the convention and helps in ensuring that the child support obligations are met.

7. Mechanisms to enforce the decisions

The convention also requires for the use of various enforcement mechanisms that ensures compliance with the child support orders, including measures such as income withholding and seizure of assets

8. Regular review and improvement :

This convention also provides a provision requiring regular reviews to assess convention’s implementation and identify areas for improvement. This constant evaluation allows for adjustments to be made to the legal framework as well as administrative procedures to address emerging challenges that comes with the time.

Some problems of the convention

Every thing has its own pros and cons and The Hague Convention on the International Recovery of Child Support is no exception. Some of the problems with the convention are:

1. Narrow Scope:

This convention only applies to the cases involving the international recovery of child support. This convention is silent on other aspects of international family law such as custody and visitation rights. This limited scope has possibility of leaving gaps in the legal framework meant for resolving comprehensive cross-border family disputes.

2. Variation in national laws:

There are many variations in the legal framework of different nations legal system based on the needs of nations. Due to which, convention’s effectiveness can be influenced by these variations in the laws and procedures of the nations who are participants in the convention. The inconsistencies and discrepancies in the legal framework of the countries can complicate the enforcement and the recognition of the child support orders

3. Legal representation:

This convention is incapable at addressing the disparities in resources, access to legal representation and assistance may vary among the parents involved in the cross-border child support cases. This leaves some parents at a major disadvantage in navigating the legal processes while some at a major advantage.

4. Enforcement :

The enforcement mechanisms of the convention are outlined in the convention itself but when we come to implementing mechanisms we start to realise that there are some complicacies, especially if the paying parent resides in a country with limited resources or if there are some legal barriers at play.

5. Lack of Universal Ratification:

Not all countries have ratified the Hague Convention on the International

Recovery of Child Support, there are many countries which have not, including

India. This lack of universal ratification results in limiting the convention’s

effectiveness in addressing cross-brooder child support issues on a global scale.

6. Privacy:

The suits arising out of this convention does not only involves 2 parents but the government as well and the convention itself emphasises on information sharing between Central Authorities which may raise privacy concerns for the individuals which are involved in child support cases. The exchange of sensitive personal information done during proceedings could potentially compromise the privacy rights of parties involved.

7. Cultural differences:

This convention although pays attention to cultural differences but not enough which could in turn impact the resolution of international child support disputes. Cultural nuances related to family structures, child-rearing practices and legal expectations might not be fully considered in the convention’s framework.

India

Now after discussing what is The Hague Convention on the International Recovery of Child Support, features and advantages of the convention, and limitations of the convention. Now it is time to discuss what is India’s stand about The Hague Convention on the International Recovery of Child Support

India has refused to rectify The Hague Convention on the International Recovery of Child Support in an order given by India’s former Women and Child Development Minister, Maneka Gandhi which was also agreed by Ministry of External Affairs.

The government came under a lot of international pressure, particularly from the United States of America and United Kingdom, to accede to the convention. Even government’s own Law Commission, headed by a former Supreme Court judge Dr. A.R. Lakshmanan, had issued a report which called government to ratify the convention, furthermore in February 2016, Punjab and Haryana Court asked Law Commission of India to again recommend government to sign the Hague Convention and adopt a related laws, as justice Rajiv Bhalla stated  “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.”

In line with these recommendations, the WCD Ministry in June 2016 issued a draft of Civil Aspects of International Child Abduction Bill, 2016. This 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 court thinks the person caring for the child was putting the child at grave risk of psychological or physical harm or both. This bill also provided for one year jail term to parent or family member which is found wrongfully retaining or removing a child from the custody of the other parent.

The reason government gave for this decision was that signing it would be to the disadvantage of indian women, they said that there are more cases of indian women escaping bad marriage abroad and returning “to the safety of their homes” back to india than the cases in which non-indian women who are married to indian men leaving the countries with their children, and even majority of these cases involve women fleeing, not men.

Conclusion

The Hague Convention on the International Recovery of Child Support is a very big step forward in the direction of resolving child support disputes amicably but I still has flaws and some of which are serious. Signing the convention will obviously be beneficial for preventing abduction of childeren by non-custodial parent but India as of yet can’t afford to sign the convention, at least till the time convention finds ways to differentiate between abducting parent and the parent who is fleeing from an abusive relationship

References

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