Band, Baja & Bachchey

Dear Nick and Priyanka,

Congratulations!!! We are very happy to see you both are tying the knot and sending you our best wishes. We are delighted to see your bridal shower pics and how much Nick is missing Priyanka.

We are a group of parents also known as LBP which stands for Left Behind Parents. We are victims of IPCA. And No IPCA is not an exotic poisonous fruit, although it is the fruit of a marriage gone sour, with our children being forcibly removed from their home country and/or retained in India against our wishes. India is well known as a safe haven for abduction and according to Department of State/USA data, 100s of children are abducted every year from USA to India.

However, we don’t want to steal the joy of your precious moments but would like to caution you Nick about International Parental Child Abduction (IPCA). While we don’t mean to frighten you off kids Nick, and our timing could have been better, we thought it’s better late than never for you to be aware.

Have you heard about IPCA before? NO? OK, we can explain. IPCA is the illegal removal of children from their home by a “taking” parent to a foreign country. Thousands of children are being abducted by one parent to a country out of USA each year.  One of the risk factors is a spouse of foreign extraction who has family roots and ties abroad.  Ninety-nine countries have signed the UN Hague Convention which allows such abducted children to be returned expeditiously. In your case not only is Ms. Chopra of Indian origin, her family and ties are all there.  But what is worse is that India’s is one of the few countries that have steadfastly refused to sign the Hague Convention for abducted children, nor recognizes parental abduction as a crime. Moreover, just the fact of being married in India by Hindu rites makes the Indian courts take jurisdiction over the fate of US born and raised children. On top of it, the delays in the Indian judicial system are legion. You can Google it. Department of State/USA summarized India’s IPCA record- read in the provided link.  (Department of State publishes annual report and more details can be found at https://travel.state.gov/content/dam/NEWIPCAAssets/pdfs/AnnualReports/2018%20Annual%20Report%20on%20International%20Child%20Abduction%20FINAL1.pdf)

Victims of IPCA are not only the LBPs like us, but our kids who live as illegals in India. The obstacles to their return to USA include the fact that India is not a signatory to Hague Convention on the Civil Aspects of International Child Abduction, 1980, treaty. This means, once a child is abducted to India, there is no legal framework for its return which leads to the next issue.

Secondly, India does not recognize parental child abduction as a crime, leaving the parent left behind to fight it as a custody battle in courts in India and the home country of the abducting parent. The problem is exacerbated by the fact that courts in India do not recognize US court orders either. Not only that, you will face huge hurdles to even get access to your own children once you get into this situation.

Several of us LBPs, have lost our children to such abductions, and are facing this on a daily basis, many of us have not seen or talked to our child/ren for over 4-5 years. This is a constant heartache for us.  Besides, the children are suffering too, for they are deprived the love of the other parent for no fault of theirs.

Priyanka, we hope things never come to this.  However, we do know that you have publicly said that you would only marry to have a child and fully don’t need a man for anything else.  But we see you as champion children’s rights. We would love to help you better understand how children’s fundamental rights are being violated by India.

We hope you and Nick together will make children’s rights a priority and help us get our children back to USA.

We request both of you to raise your voice for the voiceless victims of IPCA, our children. You both have influence as you have a great fan following, people admire and follow you. We are looking forward to hearing from you and want to see you both as ambassadors for these children.

We all wish you the best and a happy married life and we pray neither of you face child abduction.

With love and best wishes.

Left-behind-parents
Fight-IPCA Team

 

10 Reasons Why India Should Ratify Hague Convention on the Civil Aspects of International Child Abduction, 1980

India ratified United Nations Convention on Rights of the Child (referred to as UNCRC henceforth) circa 1992, and that should have been the time India should have ratified the Hague Abduction Convention (Hague Convention on the Civil Aspects of International Child Abduction, 1980) as well. Hague Abduction Convention is an international protocol set up to dissuade, deter parental child abduction across international borders and bring back the status quo for the child w.r.t. his/her rights to both parents.

Find below 10 reasons why India should be ratifying Hague Abduction Convention in unequivocal terms, taken straight from the pages of UNCRC, whose full text can be found here (https://www.ohchr.org/en/professionalinterest/pages/crc.aspx) .

Reason #1 Article 5 of UNCRC

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Reason #2 Article 7 of UNCRC

  1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
  2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

Reason #3 Article 8 of UNCRC

  1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
  2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

Reason #4 Article 9 of UNCRC

  1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
  2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
  3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

Reason #5 Article 10 of UNCRC

  1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
  2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

Reason #6 Article 11 of UNCRC

  1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.
  2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

Reason #7 Article 14 of UNCRC

  1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
  2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
  3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

Reason #8 Article 18 of UNCRC

States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

Reason #9 Article 19 of UNCRC

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Reason #10 Article 35 of UNCRC

States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

Hague Committee Report Feedback

May 20, 2018

To whom it may concern

Re: Accession to the Hague Convention on the Civil Aspects of International Child Abduction, 1980-reg

Thank you for publishing the report prepared by Hon’ble Justice Sh. Rajesh Bindal’s committee related to India’s Accession to the Hague Convention on the Civil Aspects of International Child Abduction, 1980 ( http://www.wcd.nic.in/sites/default/files/Hague%20Convention.pdf ). We appreciate the efforts taken by the committee in soliciting feedback from various stakeholders, including ourselves, in preparing this report which we have so eagerly and anxiously been waiting for. As left-behind parents who first hand live this horror everyday, it is heartening to see Government of India see the value in researching a solution to this epidemic, and for inviting comments on the same before it is sent to the Parliament for a possible enactment. Thank you one and all, the committee and the various stakeholders, for the efforts put into this important debate.

Below, please find our feedback to the report. The same has been published at the following location on the world wide web:
https://fight-ipca.com/hague-committee-report-feedback/

Faulty assumptions lead to faulty policies, and in a matter as serious as the right of a child to a parent’s love, security, and bonding, which is the first casualty in a case of Parental Child Abduction, this will have serious consequences on the very children they are meant to protect. It is shocking and disappointing to see so many flawed assumptions in the report despite mountains of official documents submitted to the committee to enable it to make informed and unbiased recommendations. Sadly, after a thorough read of the report it appears that the committee has seen this from the perspective of a marital issue ( for which there are enough number of protections and laws in India and other countries ) instead of looking at it from the perspective of children’s rights to a childhood filled with love, nurture from both parents ( for which laws in India are sorely lacking ), and in that respect, the report has strayed away from the objective and is seen by us as weak in its recommendations. What is sorely lacking is robust safeguards to potential misuse of the bill drafted, a bill sadly crafted around a false premise of domestic violence on women. We are all painfully aware of the gross misuse of similar laws that have wreaked havoc on millions of healthy families, yet this context seemed to have been sidestepped by the committee.

First, please take a note of the carefully chosen words used in the report to mischaracterize the problem. The effect of this, intended or not, is to derail the reader’s thought-process by removing the focus from voiceless children, for whom the committee was created and law is being crafted, to that of the parents’ issues, for which appropriate laws are already in place in all Hague signatory countries. Key among them are:

  • Definition of Abduction has been changed to Removal. Children are not objects to be removed, they are living breathing lives that are forcefully abducted through deceptive means with deliberate and careful planning. An abduction is an abduction, no matter who does it, even if it is a parent. Just like a rape is a rape, even if it is perpetrated by a parent. Just like human trafficking is human trafficking, even if it is performed by a parent. (Chapter 11 Title )
  • Abducting parent has been changed to Flight to Safety parent to create an image of a victim and thus inviting undue sympathy, while the real victims are the children whose concerns are overshadowed and buried in the process. ( Chapter 10, page 191 )

Following aspects, very critical for a healthy debate, but are glaring omissions in the report:

  • Short term and long term of harmful effects of Parental Alienation, a well studied phenomenon observed in victims of parental child abduction, have been left out. It is sad when such an important perspective to the problem has not been mentioned by Dr. Adarsh Kohli. An informative article can be found here: https://www.newslaundry.com/2017/11/18/parental-alienation-a-silent-epidemic
  • 30% of the abductions are by fathers, so painting with a broad brush of domestic violence of women being a big driver of parental abductions and not mentioning the abduction by fathers is detrimental.
  • Fake domestic violence charges are the most grossly misused tools used by women in India, which the Supreme Court of India has already publicly acknowledged and called as deplorable.

The report cannot be interpreted in the right context with the above omissions.

Following are some of the faulty conclusions and assumptions based on which the recommendations have been made.

  • Wrongly concludes that Habitual Residence and best interest of the child are synonymous. The Hague Convention text ( https://www.hcch.net/en/instruments/conventions/full-text/?cid=24 ) does not talk about which place is in the best interest of the child. It does not say that the habitual Residence is in the best interest of the child. It merely states that the child should be returned back to the Habitual Residence promptly so the court with intimate concern of the child can decide on which place it is that is in the best interest of the child. The only concern for Hague Convention is prompt return of child to habitual residence, because justice delayed is justice denied. Hague does not concern with adjudicating the best interest of the child. ( Chapter 10 – page 190 )
  • Wrongly concludes that the sole reason for abducting with child is to avoid domestic violence and that majority of the parental abduction cases are flight to safety cases, dismissing other factors like: personality clashes, differences in opinions on equal/shared parenting, personality disorders like narcissism, interference from in-laws in matters related to couples, career opportunities ( Chapter 10 – page 191 ). In the case of abductions from developed countries ( which are the majority), the percentage of cases due to domestic violence will be abysmal as they already have very strict domestic laws to address those. More importantly, instead of advocating use of the several protective measures to defend against domestic violence when it is truly the case ( visa, financial support ), the report supports and justifies evading the laws of the land and abducting the children to India, going so far as to say that Indian Embassies around the world should assist with this by contacting the Inter-Country Parental Child Removal Dispute Resolution Authority. ( Chapter 10 – page 193 )
  • Wrongly portrays the image that majority of abducting parents are primary caregivers, while ignoring the statistical data provided which clearly says only 20% of the abducting parents were primary caregivers. ( Statistical data Chapter 2C – page 40 )
  • Wrongly projects the image of the primary caregiver as only the person that is involved in hands-on child raising, thus denigrating the other parent’s role of earning and providing for a stable atmosphere for child to grow as not of worth. The committee is making a tacit statement that one parent’s role is of more value than the other.
  • Hides the part about impact on child of loss of parenting by the abduction by suppressing the statistical data that clearly shows an accelerated trend towards joint-parenting. ( Statistical data Chapter 2C – page 41 )
  • Wrongly portrays that the best interests of a non-Indian citizen child is to be decided by the courts in India knowing fully well that the Constitution of India does not provide the same opportunities, choices and privileges to non-Indians living in India, even if they are of Indian origin. For e.g. the abducted children will always be second class citizens of India disallowed from availing prestigious and high-level positions and participating in the democracy in India due to them being non-Indian citizens and not born in India. As an example, the children can never vote, never aspire to be the Prime Minister of India, nor can they hold research positions in academia.
  • Wrongly portrays the image of a left-behind parent as a parent that “demands return of the child” with disregard to the abducting parent. The truth is, left-behind parents, fathers or mothers, are believers in their children having equal meaningful relationship with both parents and are eager to use a civil way to get the family back in the place of habitual residence and seek a peaceful separation keeping child’s best interest in mind. The committee has, despite being given feedback on this, not mentioned this, and instead is trying to project the image of a left-behind parent trying to separate the child from the abducting parent. ( Chapter 10 – page 191 )
  • Wrongly infers that a criminal act of abducting the child is the solution when the fact is that civil remedies like legal and physical separation from the spouse are readily available as options to quickly mitigate any chances of further domestic disputes. Instead of recommending mediation as a step to prevent a crime of abduction, recommends mediation as a bandaid to be tried after the crime. ( Chapter 10 – page 191 )
  • Wrongly states that domestic violence victims have no visa provisions to remain despite providing several evidences of official documents from US State Department of various visa provisions available to domestic violence victims that allows them to continue to remain resident and pursue careers. Generous alimony and child and spousal support also have been suppressed. Several mothers who have used those provisions to build their career even testified to the committee, but committee has chosen to ignore them. ( Chapter 10 – page 191 )
  • Wrongly states that abducting parents are subjected to criminal proceedings if they try to return to the habitual residence with the child, despite providing evidence to the committee on how criminal charges are never pursued against parents when the countries are party to the Hague Abduction Convention. ( Chapter 10 – page 191 )
  • Wrongly pushes forth a reasoning that the only viable path for abducting parent and child is to continue to remain in an inharmonious home when they are returned, dismissing the possibility of a separate physical residence, making use of the alimony and spousal support provisions available in the country of habitual residence. ( Chapter 10 – page 191 )
  • Wrongly boasts about India’s obligations under UNCRC, while they are on paper alone. The  fact that several left-behind parents haven’t even seen their children for years, even for a few minutes on the children’s birthdays speaks volumes about Indian judicial system’s lack of respect for children’s rights. ( Chapter 10 – page 192 )
  • Wrongly boasts about India’s courts looking into the best interests of the child knowing fully aware that two Law Commission reports themselves have concluded that the reality is otherwise and hence recommended a speedy solution of Hague in the interest of the children. ( Chapter 10 – page 192 )
  • Makes a reasoning that if the child is returned to the habitual residence the child could be used as a tool to settle scores, yet refuses to accept that the act of abduction itself is the most blatant manifestation of the abducting parent using the child as a tool to seek revenge against a spouse who s/he disagrees with for shared parenting. ( Chapter 10 – page 191 )
  • Devotes a full chapter on “harms of witnessing abuse” ( Chapter 7 ) , yet deliberately suppresses any mention of the well studied effects of “Parental Alienation” on such contentious marriages, despite being presented with mountains of evidence and material by experts in this field.

The recommendations of the committee are equally cringe inducing:

  • Makes a child abduction issue a child custody issue. While the Hague carefully avoids all adjudication of cases and leaves it to the decision of competent courts in the place of habitual residence, this committee takes over jurisdiction over the child’s best interest. ( Chapter 10 – page 192 recommendation #1 )
  • Instead of appreciating the harmful effects of abduction and the resulting alienation of the child from one parent and seeking a prompt resolution, proposes a lengthy deliberation on child custody issues with no emphasis on promptness in the name of “best interest of child”. ( Chapter 10 – page 192  recommendation #1 )
  • Makes recommendations to register marriage/birth/adoption with Indian embassies putting undue burden on Indian diaspora, when all this is already done while applying for PIO/OCI cards. ( Chapter 10 – page 192 recommendation #2 , #3 )
  • Makes recommendation for Indian Embassies abroad to educate persons about the use of ICPCRDR Authority to seek help related to child abduction. In essence, the committee is legalizing the child abduction as the solution to marital disputes, instead of recommending that the Embassies provide disgruntled and feuding parents with legal advice and resources in accordance with the laws of the land. ( Chapter 10 – page 193 recommendation #4 )
  • Makes recommendation for mediation as a band-aid after the problem has occurred, rather than stressing on mediation as the prevent abduction from occuring in the first place. In the whole report, there is no mention of prevention, or attempts to douse the situation in the place of habitual residence. Thus, the committee is essentially making a tacit recommendation that breaking laws of the land is justified, using a child as a tool is justified, and is the preferred approach for parents when disagreements in marriage occur. ( Chapter 10 – page 193 recommendation #5 )
  • While the committee has said “hurry should not bury justice”, it has ignored the other well known saying “justice delayed is justice denied”, and we are talking about a child’s precious childhood that comes only one time in life.
  • Makes recommendations of arrangements for immediate access to children for left-behind parents but has not recommended any enforcement steps, nor penalty for abducting parents for violation. The committee also has downplayed the effectiveness of such methods when the left-behind parent is in another country.  ( Chapter 10 – page 194 recommendation #7 )
  • Makes recommendation for legal aid for parties in India but not as a means of prevention, which is backwards thinking and is not in the best interest of the child. The legal, financial and diplomatic aid should be provided in the place of habitual residence by the respective Embassies to prevent a disaster in the first place. ( Chapter 10 – page 195 recommendation #9 )
  • Makes no recommendations for penalty for contempt of the orders from the Authority when return of the child is mandated. The committee has ignored best interest of the child by not doing so.  ( Chapter 10 – page 195 recommendation #12 )
  • Makes recommendations for joint parenting plan in India knowing fully well that (1) India is not the  habitual residence of the child or parents (2) any parenting plan even during the processing of the application is impractical for a left-behind parent living, and holding a job in the other country, leaving the left-behind parent at the mercy of the abducting parent’s whims and fancies.  ( Chapter 10 – page 196 recommendation #14 )
  • Makes recommendation for child to be asked for intention, which any child psychologist will say is a dangerous thing to ask of a child who is not mature enough to understand or grasp the situation and how s/he is being carefully brainwashed by either parent in such an acrimonious environment.  ( Chapter 10 – page 196 recommendation #16 )
  • Makes recommendation that international parental child abduction not be treated as criminal offence ex-facie, while at the same time dismissing Hague ratification which is the very method for countries to avoid criminal charges and use a civil approach. (  ( Chapter 10 – page 197 recommendation #17 )
  • Makes recommendation for a new Authority with the intention of expedited resolution providing no clear timeline for such resolution, essentially allowing the parental alienation to continue.  ( Chapter 10 – page 197 recommendation #18 )
  • Makes several recommendations, citing a Supreme Court judgement, that international principles like comity of courts are not important, even when the foreign court orders themselves have ruled with best interests of child in mind. Very often these children are citizens of the foreign country where the best interests of the child reside and can enjoy the full extent of the rights provided by the country of nationality. ( Chapter 10 – page 198 recommendation #20)
  • Makes recommendations for composition of authority assuming that only women are subject to domestic violence. Makes faulty statements that women are primary caregivers knowing fully well that several of the abducting parents were employed women delegating child raising responsibilities to nannies and day care centers. The composition of the authority should be in tune with the times. There should be one male, one female and one expert in child psychology and parental alienation. The male should be one who has been experienced with active child raising since birth ( including diaper changing, putting child to bed, bathing, taking children out for entertainment etc ) so that the authority understands the plight of modern-day fathers that are being abused by women at homes just because the fathers are actively involved with their children and feel threatened by the same. Just as the committee has recommended a woman to understand the woman’s side of the issue, the committee should recommend a man of current generation who is involved in active parenting and not a retired judge who does not understand the complexities of the lives of the new generation of men.  ( Chapter 10 – page 200 recommendation #21 )
  • Uses the word “adjudication”. Should be replaced with “processing”  ( Chapter 10 – page 202 recommendation #28, #30 )

In view of these lapses, the following are our recommendations:

  • Chapter 11, Section 5 (b)(i) – at least 3 members of the Authority should be members of the International Hague Network of Judges. This ensures that they are aware of the challenges, complexities of the issue and of the remedies, so whatever legal remedies are available are enforceable in the country deemed to be in the best interest of the child for repatriation.
  • Chapter 11, Section 5 (b)(ii) – one member should always be a man who is in tune with issues of domestic violence on men, and is experienced being an active father performing roles including diaper-changing, showering, feeding, entertainment of the kids; all activities performed by the recent crop of men involved in their children’s lives.
  • Chapter 11, Section 5 – a child psychologist experienced with Parental Alienation should be mandatory as either a member , or an external expert, as the child is most vulnerable to this problem when the application processing is underway.
  • Chapter 11, Section 13 (1) – the term Adjudicate should be replaced by process. In a majority of the cases, adjudication is not needed as often cases involve non-Indian citizens and their best interests lie in their country of nationality where they enjoy the full rights and privileges afforded to them by the country.
  • Chapter 11, Section 13 (2) – there should be a line item for Enforcement of the order for return and the functions of the Authority to accomplish the same.
  • Chapter 11, Section 15 – the Powers of Authority should be immediately relinquished and return ordered in any of the following cases, since the state of habitual residence is the most competent court to decide on the child’s best interest
    • Child not born in India and child is citizen of the state of Habitual Residence. Children not born in India are not provided equal rights as those born in India, hence they are second class residents which is against best interest of the child and violation of UNCRC obligations of India.
    • Custody order for the child already exists from the state of Habitual Residence at the time of application and does not permit abducting parent to decide unilaterally on decisions related to the child
    • Where parents are residents domiciled in the state of habitual residence at the time of abduction.
  • A full section should be dedicated to timeline, in keeping with the spirit of the best interest of the child. Justice delayed is justice denied. The time from application to resolution should not exceed 3 months in the interest of children’s schooling, bonding with the other parent getting affected. Hague Guide on Mediation specifically stresses the importance of being time sensitive lest mediation become an impediment than a helpful step in the process. Unless clear guidelines are laid out in law, the whole purpose of the Bill would be lost. A 3 month timeline takes care to ensure that the left-behind parent is not severely affected in their job responsibilities, the child is not severely affected due to extended separation, and most importantly, the timeline is not too prolonged that circumstances change so much that the facts of the case have to be repeatedly revisited as time passes.
  • Chapter 11, Section 17 – rights of access should be extended to include personal time with child without supervision from the abducting parent, sleepover time with child without supervision from the abducting parent, daily electronic access to child when away, sharing of health records, schooling and day care details, nanny details, sharing of travel details in advance, sharing of every change of address of the child.
  • Chapter 11, Section 22 – strict timeline needs to be provided for the appeal, so the expeditious return is not sabotaged by the abducting parent.
  • Chapter 11, Section 24 (a) – “not in the best interest of the child” is a vague term and has no place in a law. It is left to too wide an interpretation, essentially making the whole law unenforceable as the abducting parent can use all and every means to use this defense to the detriment of the child. This clause should be removed in its entirety.
  • Chapter 11, Section 24 (c) – the law should clearly state that the grave risk is proven through documented evidence reported to law enforcement in the country of Habitual Residence and the court or authority in the country having positively determined it being so. The law should clearly state that such a defense is not applicable in any other case especially when it is claimed after abduction, and it it is still claimed, the proper forum for such determination is the country of Habitual Residence where the incident occurred and where the legal and law enforcement systems have the proper powers and authority to conduct an investigation.
  • Chapter 11, Section 24 (d) – the law should clearly state that the domestic violence charge is proven through documented evidence reported to law enforcement in the country of Habitual Residence and the court or authority in the country having positively determined it being so. The law should clearly state that such a defense is not applicable in any other case when it is claimed after abduction, and it it is still claimed, the proper forum for such determination is the country of Habitual Residence where the incident occurred and where the legal and law enforcement systems have the proper powers and authority to conduct an investigation. If not, it will result in another of the several laws that have been misused in India like 498A and DV Act.
  • Chapter 11, Section 24 (e) – the law allows for a term of 1 year for an application to be filed, which gives ample opportunity for an abducting parent to alienate the child and the left-behind parent, so the chances of child speaking against the left-behind parent are enormous. Moreover, a child is not capable of making such a decision no matter how mature it may seem. If a child cannot consume alcohol , or vote in an election, or procure a driving license, it means they are not mature enough for real life. Hence, this clause should be removed in its entirety.
  • Chapter 11, Section 24 – if a judicial order existed prior to the abduction event, in the spirit of international justice norms, the same should be respected.

We hope that this feedback makes its way into the bill before it is enacted into law. As left-behind parents, we understand the importance of this bill for generations of children, and as parents experienced with all the complexities, it is critical that our voices are heard and given the due respect so the bill really addresses the chief concerns it was meant to resolve and mitigate.

Respectfully,

Team fight-ipca on behalf of left-behind parents

Copied to:
Hon’ble Justice Sh. Rajesh Bindal (Chairman)
Hon’ble Justice Ms. Mukta Gupta
Hon’ble Justice Ms. Anita Chaudhry
Mr. Manoj (P.S. of Justice Bindal )
Ms. Astha Saxena ( Joint Secretary, Ministry of Women and Child Development )
Ms. Uma Sekhar ( Joint Secretary, (Law & Treaty), Ministry of External Affairs )
Hon’ble Ms. Maneka Gandhi, Minister of Women and Child Development
Hon’ble Ms. Sushma Swaraj, Minister of External Affairs
Ms. Meenaxee Raj
Mr. Naman Jain
Mr. George H. Hogeman, Consul General, U.S. Embassy, New Delhi
Mr. Ted Coley, Director, Office of Children’s issues, Department of State, USA
IndiaIPCA [a t] state.gov
Left-behind parents in USA

Reply to: Lawyers Collective submitted a report to the committee evaluating the benefits of India ratifying Hague Convention on Civil Aspects of International Child Abduction

Lawyers Collective submitted a report to the committee evaluating the benefits of India ratifying Hague Convention on Civil Aspects of International Child Abduction, the original of which can be found at the link below:

http://www.lawyerscollective.org/the-invisible-lawyer/india-not-sign-hague-convention-civil-aspects-international-child-abduction

To start with, lawyers collective appears to be a group of lawyers. Lawyers’ vocation is to fight for justice, justice not as defined by their personal beliefs, but as defined by the set of laws that govern the civil society. In the whole argument below, they are basically saying that parents, if they cannot, do not, or think they cannot get justice in another country, for whatever reason, are free to break the laws of the country and flee to India. They refuse to even propose any solution that can be workable to parents within the confines of the laws of the country they are fleeing from. Thus, as lawyers, they are advocating a lawless society where people can pick and choose what they like to obey based on their personal set of beliefs. They are also insensitive to the extreme harm the child victims of parental abduction are exposed to during the course of the abduction and the ensuing protracted litigation.

It is also to be noted that, Ms. Indira Jaising, who heads Lawyers Collective had rallied for India to ratify Hague and had recognized the harm on children, but now, she takes a U-turn. Is it because, she stands to gain financially by such litigations being fought in Indian courts. See below:

http://www.tribuneindia.com/2006/20060507/nation.htm#4

Below, you will find the text of the Lawyers Collective report and rebuttals of the same alongside.

Fleeing parent is not an “abductor”
Lawyers Collective says:
The terminology of the Convention is highly offensive, labeling the removal of children from a country by their own parents as “abduction”. This misrepresents the situation when a parent (usually the mother) leaves a country with their children following divorce or separation from the other parent. The taking parent in most cases moves to another country to either protect themselves, the child, or both. The Law Commission Report No. 263 on The Protection of Children (Inter-Country Removal and Retention) Bill, 2016 acknowledges that the parents act in the best interest of the child, and they leave with the child out of over-whelming love for it, and not to harm the child. This is the reality in which India is being asked under the Hague Convention to forcibly remove children from their Indian parent and family, to deport them to foreign-domiciled parents, or even to foreign orphanages, or child protection agencies (cf. Article 8 of the Hague Convention, giving “any person, institution or other body” the right to claim a child in a member country).  

We should not stigmatize parents coming to India with their own children as “abductors”. Under the Indian law, it has been well established that parents are the natural guardians of their children, so there is no question of treating them as “abductors” under Indian law.

Fight-IPCA responds:

  • The authors claim that a parent cannot be called an abductor because India’s laws do not consider so. The abduction is in the context of the laws governing the place where the child was abducted from, not in the context of laws in India because the crime occurred in another sovereign nation. So, whether the authors like it or not, the taking parents have committed a crime in another country called “abduction” and hence, there is no other word to refer to the taking parents than the word “abductors”.
  • The authors claim that the fleeing misrepresents situation where the mothers are leaving to India as a result of divorce or separation. The authors are thus justifying unilateral act by one parent to remove the child from its habitual residence to another place of their choice disregarding custody orders that have been established as a result of divorce or separation. In other words, authors are essentially saying the parents need not obey laws and court orders.
  • Authors claim that parents, as natural guardians, always look at the best interest of the child and hence cannot be abductors. With that reasoning, a parent performing sexual acts on own child cannot be called a rapist. With the same reasoning, a parent’s action of beating up a child black and blue with the intention of disciplining him/her is acceptable according to these lawyers should be considered to be done out of overwhelming love and concern for the child. Child abduction is the worst form of child abuse. If the taking parent had child’s best interest in mind, they would be providing for regular access and contact between child and left-behind parent. The fact that this is non-existent in most cases involving such abductions is confirmation that the taking parents care the least about the child, but are invested heavily in restricting as much access as possible to progressively alienate the child from the left-behind parent.
  • The authors misquote the law commission report #263. They say “The Law Commission Report No. 263 on The Protection of Children (Inter-Country Removal and Retention) Bill, 2016 acknowledges that the parents act in the best interest of the child,” The authors misquote the very report they cite. The actual wording of the law commission report No. 263 ( available here http://lawcommissionofindia.nic.in/reports/Report263.pdf ) is: “The child is taken away by a parent to any other place because of the fear of losing his/her custody i.e. such an abduction, as stated earlier, is out of overwhelming love and affection and not to harm the child or achieve any other ulterior purpose. “ The law commission is not using the term “best interest of the child”. The law commission simply says that the parents are not taking the child away with the intention of harming the child, but often as a matter of ensuring their “own” best interests so they do not lose custody of the child had they stayed back in the habitual residence and worked on custody. In other words, what the report implies is that the parents are not really looking at the best interest of the child, but they are concerned about their own best interest.

In fact, if we look further down the very same law commission report, the report clearly says “Be that as it may, wrongful removal and retention not only causes serious prejudice to the other parent, but may have a serious impact on the overall development of the child. “ However, the authors conveniently avoid mentioning this because they are not really concerned about the children, rather only guided by their agenda of rejection of ratification of Hague without going into the merits.

The Hague Convention Comes Down Heavily on Abandoned and Abused Mothers
Lawyers Collective says:
Government of India should be sensitive to the plight of many mothers who flee to India with their children. Often they are either abandoned or have faced domestic violence. The Convention shows no recognition of the role played by domestic violence in compelling a mother to go back to her country of origin. The Convention will have the effect of pushing woman back into a violent relationship in a foreign land in pursuit of their children. Many countries, including Japan, have shown awareness of domestic violence while signing the Hague Convention by making exceptions in case of woman facing domestic violence in the country form which they have fled.

Fight-IPCA responds:

  • The authors may have a point about certain countries not having enough protections and laws against domestic violence. In such cases, it is agreeable that the authors have genuine concern. However, it is wrong to sabotage all IPCA cases just because of a few that are genuine flee from abuse cases. The vast majority of the mothers fleeing to India are from progressive nations like USA, UK, Canada which have strict laws against domestic violence. So, in those cases, abductions are an act of revenge against the spouse than due to fleeing abuse. The solution is not an outright rejection of ratifying Hague, as the authors suggest, but for India to ratify Hague and have the Central Authority deny return of the child to countries that do not have strong domestic violence protections for women. This way, justice is served to a lot of children victimized by IPCA from the most progressive nations like UK, USA and Canada. This will also ensure the children where the father was the abductor ( 32% of the cases ) will also get the justice they deserve. This in itself will bring down the number of child abductions to India significantly, improving India’s human rights image in the world by leaps and bounds.
  • Authors say “The Convention shows no recognition of the role played by domestic violence in compelling a mother to go back to her country of origin”. Hague convention is focused on the welfare of the child. If the child can be sent to an abusive atmosphere, Article 13 of Hague ( https://www.hcch.net/en/instruments/conventions/full-text/?cid=24 ) already provides for exceptions and the requested state can object return of the child. The Hague convention does not compel the mothers/parents to return at all. It is the mother’s/parent’s choice.Should the mothers/parents want to return to USA with the child, there are several provisions available for domestic violence victims:
    • Ministry of external affairs has provided a wealth of information on all the facilities and resources available for domestic violence victims ( https://www.mea.gov.in/images/attach/Legal_provisions_in_foreign_countries.pdf )
    • Visa provisions are available for those on greencard, immigrant visas.
    • Government funded financial, housing aid, along with strong privacy protections so the domestic violence victims’ whereabouts are not made known to the perpetrators are available until the victims themselves say they do not need such protections.

The Hague Convention Ignores the Best Interests of the Child
Lawyers Collective says:
Under the Convention, the fate of the child hinges on the place where it was ‘habitually resident’ before it was brought to India. But this fails to take into account the needs and best interests of the child. A child’s security, happiness and welfare, are not determined by the place of its residence. A child is happy anywhere with a well-loved parent. The question, from the point of view of the best interests of the child, is not where it reside, but who has been the primary care giver, and to whom it is attached.

For a newborn or baby of age one or two years, the concept of habitual residence is even more meaningless. A week-old infant may have technically spent its entire life in a particular country, but that is hardly relevant to the question of where it should be.

Many anomalous situations arise if we adopt this notion of ‘habitual residence’ as being decisive in inter-parental custody disputes. Suppose a woman is forced to stay in a foreign country under court injunctions while her divorce case is on-going, and she gives birth to a child in that period, is it fair of the law to consider that child as habitually resident there? Suppose the custodial parent becomes incapacitated for some reason from taking care of the child, is the other parent going to be denied custody merely owing to the child having been habitually resident elsewhere?

If a child has been detained by a foreign child protection agency under orders contested by the parents (as we are seeing in a number of cases involving NRI families, especially in Norway and the USA), is such child to be deported to the foreign agency away from its kith and kin in India?

Article 1 of the Hague Convention states as its sole objective is the “prompt return” of children. But, in the context to children taken from a foreign country by their parents, this heartless promptness may not be in the best interests of the child in every situation.

Fight-IPCA responds:
The authors are intentionally misleading the people. The very preamble of Hague convention says this:

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.”

The wrongful removal and retention is what is deemed not in the best interest of the child and Hague only requires the child be brought back to where it was taken away from so the courts in that place look at the best interest of the child and decide what the custody arrangement for the child will be.

  • The authors claim that Hague decides what is in the best interest of the child and forces the child to remain in the foreign country and raise several questions and scenarios. As a matter of fact, there is nothing in the Hague which says what is the best interest of the child. It is for the courts in the country from where the child was removed to look at the whole situation and determine what it is ( in cases where custodial parent is incapacitated, or if kith-kin in India are in the best interest of the child ). In simple words, Hague Convention only requires that the child be brought back to habitual residence so that the court there can decide where the child can continue to reside based the best interest of the child, whether it is the habitual residence or some other place. Article 19 of Hague clearly says this  ( https://www.hcch.net/en/instruments/conventions/full-text/?cid=24 ) :

A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.  

  • The authors claim “Article 1 of the Hague Convention states as its sole objective is the “prompt return” of children. But, in the context to children taken from a foreign country by their parents, this heartless promptness may not be in the best interests of the child in every situation. “ Authors seem to dismiss the fact that wrongful removal and retention of the child itself is heartless towards both the child and the left-behind parent,as the law commission report also has rightfully called out, unless a real case of flight from abuse exists. For such cases, Article 13 clause is the answer for the authors’ false “heartless” claims.
  • There are several other disturbing choice of words and phrases that do not bode well with the best interest of the child:
    • “A child is happy anywhere with a well-loved parent”. – authors use singular form “parent” instead of plural form “parents”, thus dismissing the love of and role played by the other parent in raising a child. The authors seem to prefer a fatherless and motherless society for our children.
    • “who has been the primary care giver, and to whom it is attached” – these words again dismiss the role played by the other parent. Parenting is a shared responsibility and both parents are care-givers, assuming common role at times, and diverging roles at others, all towards the betterment of the children. So, implicitly saying one parent is a primary care-giver is unbecoming of the authors. The authors seem to portray a twisted view of Indian culture.

No recognition of Domestic Violence
Lawyers Collective says:
According to the Law Commission report on Protection of Children (Inter- country Removal and Retention) Bill 2016, 68% of the cases filed in India were women and in 85% of the cases the women were the prime caregivers. A woman facing domestic violence is forced to escape to her country of origin. The Hague Convention if implemented will push that woman back to the environment of abuse she escaped if she wants to stay close to her child.

An Indian mother who went to a foreign country after marriage, or has spent only a few years there, may not have the network of her natal relatives and friends to set up life there by herself once the marriage has ended. She may not easily find employment there. So it is understandable that a mother in this situation may want to return to India, especially if the children are young. Those favoring signing the Hague Convention say that such mothers may find support from NGOs and women’s support networks there. But while this may be helpful in emergency situations, it is not practical for a woman to plan long-term residence in a foreign country solely on this basis.

The Civil aspects of International Child Abduction, 2016 (the Bill) also shows no recognition of the role played by domestic violence in a woman getting back to her country of origin.

The women of developing countries may rely on their spouses financially and on finding themselves abandoned leave for their country of origin. It has to be noted that the taking parent does not leave to a place of hiding but to a place of her family and acceptance.

Fight-IPCA responds:

  • The title is false. There is recognition of Domestic Violence in Hague. Article 13 provides for grave risk for children as grounds to deny return of child to habitual residence.
  • The authors again bring up the Domestic Violence against women which has been already accounted for under the section The Hague Convention Comes Down Heavily on Abandoned and Abused Mothers
  • The authors continue to paint a picture as if fleeing by breaking the laws is justified. The authors also seem to present a situation where until a marital discord, it is perfectly fine to not be in close living with kith and kin in India, but when differences arise the kith and kin in India become suddenly important and hence fleeing with child is justified ignoring the fact that they now have a responsibility towards the child’s need for the other parent.
  • The authors also try to group all IPCA under the umbrella of women fleeing abuse while the reality is otherwise.
    • 32% are men fleeing with children.
    • Several cases are those of women having settled in foreign countries for several years, consciously taken up residency as well as citizenship and have broken ties with India for all purposes. So, the only reason such women are fleeing is for purposes of forum-shopping.
    • Several cases are of women who have brilliant educational qualifications, gainful employment.

Foreign courts and governmental authorities are biased against awarding custody to Indian parents, or to parents wishing to return to India
Lawyers Collective says:
The Hague Convention presumes that all jurisdictions are equal when it comes to deciding custodial rights, but the experience of Indians in first world countries reveals deep prejudice against Indian parents. Indian-resident parents less likely to be granted custodial rights by courts of countries such as the USA and Norway, which are largely ignorant of India, except as a third-world country that any child would be lucky to escape. A recent study by Suranya Aiyar, submitted in August 2017 to the Ministry of External Affairs reveals that the United States is routinely removing Indian children from both Indian parents on spurious allegations of abuse. While child abuse is not a phenomenon to be ignored, laws authorizing social welfare agencies to remove children from their own parents have been heavily criticized in the USA and elsewhere as being a remedy worse than the problem.

Most of the families affected in the USA are young IT professionals, newly arrived with infants and toddlers to the US on work visas. In almost each case, parents are proving themselves innocent, but not until the children have spent months, even years, in foster care with total strangers. Indian parents give heartrending accounts of their children unable to eat, sleep. or even communicate with anyone in alien foster homes. Though international law permits repatriation of such children to their relatives in India while the parents prove their innocence in the US system, the child protection agencies obstruct and delay such repatriation. In some cases, repatriation has been obstructed even when the US courts have permitted it.

Norway is another country notorious for unjustifiably snatching the children of immigrants. Suranya Aiyar has worked with dozens of Indian, Romanian, Polish, Lithuanian, American and native Norwegian families whose children have been wrongfully taken by its child welfare agency, Barnevernet. There have been well-known cases where Barnevernet makes culturally biased assessments of the family based on things like hand-feeding, or sleeping in the same bed with the child, or parents being “too religious”. The threshold for child removal is so low, that families are now leaving Norway once Barnevernet come knocking on the door. It is just not safe to stay on, as the system does not give parents a fair hearing, especially immigrant parents. Last year, Norway signed the Hague Convention and the Norwegian child welfare agencies are threatening to use its provisions to re-capture children who leave Norway with their parents. We cannot allow a situation in India where foreign child welfare agencies would be enabled to force the deportation of children from India. Unfortunately, there are huge incentives for child welfare agencies in these foreign countries to have children in care and placed with foster carers or put up for adoption. In Norway fostering is considered a way of earning money. In all these countries there is a growing demand for children to adopt owing to declining birth rates. The Committee and the Indian Government must bear these dynamics in mind in order to properly understand how the Hague Convention will be used, not just in interparental disputes but also against both parents by foreign child protection agencies. This agenda of the Hague Convention is clear from Article 8, which is not restricted to custody clams by parents bellows custody claims to be made not just by a parent, but by “any person, institution or other body”. This gives the rights to paid foster carers and foreign child protection agencies to make claims on Indian children.

Fight-IPCA responds:

  • Authors here resort to uncorroborated spiel against foreign countries. They make several statements here providing no data to back those. The authors try to create an impression that the Western societies are disrespectful of Indian families and that children are taken away to foster care blatantly while providing no real data or numbers. It should be remembered that the countries the authors mention are seeing huge influx of Indian population exactly for the reasons of better life and prospects, and the success stories of millions of Indian families are testimony to the embracing culture of these western societies. If these countries indeed had problems like this, we would be seeing an increasing exodus of Indian families from these countries, which we are not. The authors try to paint a very bleak picture to make their case with no evidence whatsoever and use isolated incidents to make their case.
  • If it is indeed a problem, it is separate from Hague and has to do with Child Protective Services overreach that occurs outside the much smaller context of child abduction and hence must be taken up independent of Hague ratification with the Ministry of External Affairs. The authors are needlessly creating confusion by intermingling two separate issues.

Hague Convention allows custodial claims without any judicial order
Lawyers Collective says:
Section 3 of the International Child Abduction Bill proposed by the Ministry of Women and Child Development recognizes custodial rights based on not just judicial orders in a contracting state, but also under any administrative order or by “operation of law” of the foreign country; and Section 19 says that the High Court can rely on this statement of law without recourse to the usual procedures for the proof of foreign law in India. Section 19 of the Bill is derived from Article 14 of the Hague Convention which says that in making decisions in a custody claim, “the requested State may take notice directly of the law of the State of the claimant party “without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions that would otherwise be applicable.”

This means that the foreign party does not even have to produce a court order to establish its right to custody. The foreign party can simply give its own interpretation of the foreign law claiming this entitles it to custody, and the Central Authority, or High Court has to act upon that.

If such laws were to be passed in India, it would amount to complete abdication of responsibility towards Indian children by the Indian Government. Let alone sending children to a foreign parent without proper custodial, this would not even protect them from being trafficked by fraudsters and criminals.

Fight-IPCA responds:

  • Hague convention does not deal with adjudicating custodial claims. It merely ensures the child is sent back to its habitual residence so the custodial claims can be adjudicated there. The authors mention Article 14 of the Hague and interpret as below: “This means that the foreign party does not even have to produce a court order to establish its right to custody. The foreign party can simply give its own interpretation of the foreign law claiming this entitles it to custody, and the Central Authority, or High Court has to act upon that.

However, they conveniently omit mentioning Article 15 of the Hague which explicitly says that, the contracting state need not blindly order return of the child, but can ask for supporting documents proving wrongful removal and retention. Article 15 is pasted below:

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”

  • Authors again resort to distracting and sometimes erroneous terms like “Indian children” ( several of the children that are abducted are not Indian children, but foreign citizens and only of Indian ethnicity ) and “foreign parents” ( is a parent any different if they are Indian or foreign ? ).

International pressure to sign the Convention
Lawyers Collective says:
The Hague Convention appears to be a Global North construct. It also does not take into account that the child may find in the country of origin of the taking parent a loving and caring environment as well, as opposed to an abusive, violent household in a developed country. The lobbying to sign the Convention arises mainly from countries such as the USA, which has several affluent Non-resident Families which have become dysfunctional due to domestic abuse.

In the case of Japan, one of the largest countries in Asia based on its GDP, resisted signing the convention till as recently as 2013. The domestic courts in Japan are obliged to consider whether the abuse toward the parents who abduct their children could psychologically harm them upon being returned to their habitual residence. Japan has shown awareness of domestic violence while signing the Hague Convention through the Act on Implementation of Convention on the Civil Aspects of International Child Abduction (the Implementation Act) but the Indian Bill as no such clause to protect India from children being taken away to the country where the mother fled from violence.

Under the Civil Aspects of International Child Abduction Bill, 2016 as proposed by the Ministry of Women and Child Development, no judicial consideration is required before taking the serious step of sending a child away from the Indian to the foreign parent. Instead of courts, we are to have a Joint-Secretary-level government official acting as the “Central Authority” making this decision. The Central Authority has all the power of a civil court to locate and seize the child using the police, and (under Section 5(b)) to take over its custody pending deportation to the United States. It can do so without even so much as a warrant or show cause notice from a judge. It is not required to hear the Indian parent.

Under Chapter V of the Bill, the Central Authority may approach the High Court for deportation of the Indian child. This part of the Bill, places some limits on the High Court’s powers. For instance, deportation is not to be ordered if the child has settled into his home in India, or such deportation would place the child in an intolerable. But the High Court’s jurisdiction is said to be “without prejudice” to the Central Authority’s powers. This is a mere formality as the High Court , can be circumvented if the Central Authority acts in exercise of its own powers (under Chapter III) and the Court will await the decision of the Authority before taking any decision and will be influenced by the decision.

There is also no provision for the Indian parent to approach the High Court under this Bill. Only the Central Authority may do so, and, the High Court, under Section 16(5), can ignore the decision of any other Indian court regarding the child’s custody. This means that even if the Indian parent were to obtain a judicial order in India, granting him custody of the child, the High Court can ignore that decision on being petitioned by the Central Authority!

No reciprocal rights are given to Indian-resident parent under the Bill. About children wrongfully removed from India, the Bill merely says that the Indian Central Authority may apply to its counterpart in the United States. This means that even the weak and reluctant hearing an Indian parent would get in the US system has been extinguished, as they would be no longer able to make a direct claim in a US court for their children, but would, under the legal principle of ‘exhaustion of local remedies’ have to apply to the Central Authority in India.

Fight-IPCA responds:

  • 96 countries in all have ratified the convention. These belong to the progressive group that puts children first and recognize that, for a child, the parents are what is important and not the parents’ ethnicity, country of origin, roots, relatives etc. These same countries also recognize the importance of joint parenting, which is absent in India. For India to delay ratification is not in standing with the image it wants to project. Women in India are much more educated than most countries in the world, and those that have fled with allegations of abuse are some of the most well read and educated women, and for them to flout laws is inexcusable and brings a bad reputation to India as a country that protects and legally endorses lawlessness.
  • The authors try to create an image of a woman being forced to live with their spouse when ordered to return with the child, while they very well know that such is not the case. Domestic abuse victims in USA have several protections afforded by the cities and the governments, including visa provisions ( VAWA act ) for both residents and  non-residents. They are afforded pro-bono legal services and ministry of External Affairs also provides help through several NGOs ( https://www.mea.gov.in/images/attach/Legal_provisions_in_foreign_countries.pdf ) . Given this and given that the countries like USA from which the abductions are the highest are the same countries that have the strictest laws against domestic abuse, the authors’ claims ring shallow.

We already have laws for the implementation of foreign custody judgments
Lawyers Collective says:
Indian law does not automatically recognize foreign judgments. Now by signing the Hague Convention, we will be compelled to recognize a foreign judgment regardless of the justness of the decision on custody under Indian law or whether it was delivered ex-parte.

The Civil Procedure Court (CPC) of India, already provides recourse to foreign-resident parents justifiably claiming custody over children taken. Under CPC, a foreign custodial order is prima facie conclusive, and it is only in exceptional circumstances that an Indian court can override the determination of a foreign court as to the placement of a child, or any other issue.

The test for conclusiveness of a foreign judgment or decree is laid down in section 13 of the CPC which states that a foreign judgment shall be conclusive unless:

  1. It has not been pronounced by a court of competent jurisdiction;
  2. It has not been given on the merits of the case;
  3. It appears, on the face of the proceedings, to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
  4. The proceedings in which the judgment was obtained are opposed to natural justice;
  5. It has been obtained by fraud;
  6. It sustains a claim founded on a breach of any law in force in India.

This provides a reasonable and fair check on foreign judgments and is not an invention of India’s but an articulation of well-established common law principles on the subject. The Indian system is not impervious to the fact that in some cases it may be in the best interest of children to be placed with their foreign-resident parent. Our legal system already provides recourse to foreign-resident parents justifiably claiming custody over children taken to India.

The humane and practical approach is to let these cases to be decided on a case by case basis by a trained judicial officer, taking into account the actual situation of the child in question and based on carefully elaborated principles of the law of child custody, which borrow heavily from foreign jurisprudence, including that of United states.

In a recent Supreme Court judgment, of Nithya Raghavan v. State of NCT &Anr. where the Appellant mother had been living with respondent father in United Kingdom with their daughter, and had allegedly illegally removed the daughter from the custody of the father and brought her to India. The appellant came back to India along with her daughter because of the alleged violent behavior of respondent father. She informed him that her daughter would not be coming back to the UK due to her own well-being and safety.

Respondent father filed a custody/wardship petition before the High Court of Justice, Family Division, UK, seeking the return of his daughter to the jurisdiction of the UK Court. On this petition, the High Court of Justice passed an ex-parte order inter alia directing the appellant to return the daughter to the UK and to attend the hearing at the Royal Courts of Justice.

The court observed,

“42. In the present case, we are of the considered opinion that taking the totality of the facts and circumstances of the case into account, it would be in the best interests of the minor (Nethra) to remain in custody of her mother (appellant) else she would be exposed to harm if separated from the mother. We have, therefore, no hesitation in overturning the conclusion reached by the High Court.”

And further added,        

“Whether it is a case of a summary inquiry or an elaborate inquiry, the paramount consideration is the interests and welfare of the child. Further, a pre-existing order of a foreign Court can be reckoned only as one of the factor to be taken into consideration.”

Therefore, the Court overturned the conclusion reached by the High Court and held that the HC unjustly impressed by the principle of comity of courts and the obligation of the Indian Courts to comply with a pre-existing order of the foreign Court for return of the child. However, at the same time it was held that the appellant cannot disregard the proceedings instituted before the UK Court and must participate in those proceedings by engaging solicitors of her choice to espouse her cause before the High Court of Justice.

This is a good example of a case where the Indian courts respected the jurisdiction of the foreign courts by insisting that the appellant submit to the foreign proceedings, but at the same time protected her from the injustice of an ex parte order given by the foreign court after her coming to India with her daughter.

Fight-IPCA responds:

  • The authors try to confuse the readers that Hague is about child custody decisions. To again remind the readers that Hague is not meant to adjudicate anything. Hague only concerns about the return of children due to wrongful removal or retention so they are unharmed by such acts that separate from their own parents. It has the child’s best interest in mind to provide for an expeditious return so that the child’s bonding with both parents is not sabotaged by lengthy court processes across international boundaries that often take years to conclude. Hague in no way restricts or denies the abducting parents of their rights to due process in the competent court i.e. the court in the habitual residence of the child. With the very example that the authors cite ( Nithya Raghavan v. State of NCT &Anr.  ) , in case of Hague, the taking parent would be participating in the proceedings in the UK court just as it was done pre-Hague, but would be spared of the process in the India’s courts to reach that conclusion thus providing tremendous amount of relief to the child in terms of time being away from the left-behind parent. The authors refuse to acknowledge the years long lengthy process of court proceedings in India and downplay the harmful effects of such lengthy separation from another parent for the child. That authors seem to have a lack of empathy for the child whose childhood is being sabotaged by the abducting parent and the overtly lengthy court proceedings in India, which Hague is intended to prevent.

Principle of comity of Nations
Lawyers Collective says:
The principle of comity of nations is also part of Indian jurisprudence and enables the recognition of foreign rulings provided they meet certain requirements of fairness and justice.

In the decision of the Delhi High Court Shiju Jacob Varghese & Anr. vs. Tower Vision Ltd. & Ors. [196 (2013) DLT 385] the Court observed that the principle of comity of court was applicable to the provisions of Section 13 and 14 CPC:

48. The doctrine of comity of courts thus requires that the court should gauge the effect of the proceedings instituted in a foreign court on the proceedings instituted before itself and let the decision in a previously instituted suit in a foreign country determine the effect on the proceedings before it. Our codified law in the form of the statute of the Code of Civil procedure also gives due regard to this principle as it would be evident that under Section 13 of the Code of Civil Procedure, 1908 judgments given by the foreign courts have been held to be binding and conclusive until and unless they fall in any of the exceptions as spelled out in clause (a) to (f) of the same. Under section 14 of CPC, there is a presumption of conclusiveness attached to any foreign judgment being pronounced by the court of competent jurisdiction unless the contrary appears on record. It would be thus quite manifest that unless any foreign judgment is impeached on any of the grounds as envisaged in sub-clause (a) to (f) of Section 13 CPC, the foreign judgments are binding on the parties and this section en grafted in CPC is in due recognition of the principle of the concept of comity of courts and in recognition of the sovereignty and territorial integrity of jurisdiction of foreign courts. This court has the onus to carry the mantle and be alive to its responsibility laid down by the dicta of the Apex Court in the case of Narendra Kumar Maheshwari vs. Union Of India, 1990 (Supp) SCC 440 wherein the court held that before the courts grant any injunction, they should have regard to the principles of comity courts in a federal structure and should have regard to self-restraint, circumspection, although no definite norms were laid down. It was also held that it may be impossible to lay down hard and fast rule of general application because of the diverse situations which give rise to problems of this nature as each case has its own special facts and complications and it will be a disadvantage rather than an advantage, to attempt and apply any stereotyped formula to all cases, and the High Courts themselves should introduce a certain amount of discipline having regard to the principles of comity of courts administering the same general laws applicable all over the country in respect of granting interim orders which will have repercussion or effect beyond the jurisdiction of the particular courts.

Fight-IPCA responds:

  • While in principle the argument the authors make is valid, the delay it takes to come to this conclusion is not acceptable and is not in the best interest of the child, hence an expeditious framework like Hague  is necessary to speed up this conclusion. The Section 9 of Guardians and Wards Act ( https://indiankanoon.org/doc/1192053/ ) already allows for this very thing by saying the same thing that Hague requires “If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.”

The Hague Convention seeks to circumvent the Indian legal system
Lawyers Collective says:
Article 14 to 18 of the Hague Convention effectively circumvents Indian laws and courts on the issue of the custody of children within its jurisdiction. Article 14 (discussed above) says that custody claims based on foreign law shall be decided without recourse to the procedures for proof of that law or the recognition of foreign decisions otherwise applicable in the requested State. Article 15 makes it optional for the person claiming custody of the child to obtain a decision on whether the removal of the child from the so-called place of “habitual residence” was wrongful. In other words, we rely solely on the word of the claimant that the child was wrongfully removed. Article 16 prevents an Indian court from making an order as to the child’s custody once a foreign party has made a claim in relation to a child here. This means that even if there is no custody order in the foreign court, the Indian court will be prevented from deciding upon the custody of the child, merely because of the claim of the foreign party. Article 17 seals the door shut by saying that any decision already given by an Indian court (India being the requested State, for purposes of this discussion) would not be a ground for refusing forced deportation of the child to the foreign country. These provisions make clear that the real intent of the Hague Convention is to shut off any recourse in the home country for the child and parent leaving the foreign “habitual residence” country. This is not an arrangement that India should agree to keeping in mind the practical realities of prejudice in foreign courts and authorities over custody and the plight of mothers returning to India with their children.

The draft Bill that seeks to implement the Hague Convention in India circumvents our courts and their parens patria jurisdiction over children. It also sweeps away our entire jurisprudence on child custody in one blow. Under the Bill as proposed, no judicial consideration is required before taking the serious step of sending a child away from the Indian to the foreign parent. Instead of courts, we are to have a Joint-Secretary-level government official acting as the “Central Authority” making this decision. The Central Authority has all the power of a civil court to locate and seize the child using the police, and (under Section 5(b)) to take over its custody pending deportation to the United States. It can do so without even so much as a warrant or show cause notice from a judge. It is not required to hear the Indian parent.

There is also no provision for the Indian parent to approach the High Court under this Bill. Only the Central Authority may do so, and, the High Court, under Section 16(5), can ignore the decision of any other Indian court regarding the child’s custody. This means that even if the Indian parent were to obtain a judicial order in India, granting him custody of the child, the High Court can ignore that decision on being petitioned by the Central Authority!

No reciprocal rights are given to Indian-resident parent under the Bill. About children wrongfully removed from India, the Bill merely says that the Indian Central Authority may apply to its counterpart in the United States. This means that even the weak and reluctant hearing an Indian parent would get in the US system has been extinguished, as they would be no longer able to make a direct claim in a US court for their children, but would, under the legal principle of ‘exhaustion of local remedies’ have to apply to the Central Authority in India.

Fight-IPCA responds:

  • This argument by the authors also again completely ignores provisions of India’s very own Guardian and Wards Act whose Section 25 (https://indiankanoon.org/doc/1752146/ ) already makes it an offence to wrongfully remove a child from the custody of a guardian.  “If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custo­dy of the guardian.” The same act’s Section 9 ( https://indiankanoon.org/doc/1192053/ ) also explicitly says that the India’s courts do not have jurisdiction over the matter and it has to be transferred over to the court that has the most intimate concern over the child’s best interest, which is the place of “ordinary residence”
  • As far as reciprocal rights are concerned, the authors get it wrong again. The left-behind parents in India do not litigate in the foreign country’s courts ( i.e. there is no hearing in foreign country ) and are merely asking for child to be returned to India so they can fully avail of the legal remedies to establish custody in Indian courts.

Policing and invasion of privacy of the Child
Lawyers Collective says:
Article 7 of the Hague Convention allows Central Authorities constituted under the Convention in member States to liaise with each other to find and deport children. Without the any supervision of a judicial authority or intervening rights of the parents of the children, these authorities are allowed to “discover the whereabouts of a child”; “take provisional measures”, “exchange information relating to the social background of the child” and so on. This is a gross invasion of the privacy of the child; and that too by a no-judicial body, without any countervailing rights given to the child’s de facto custodial parent in order to balance the powers of the Central Authority. Under the Bill, no judicial consideration is required before taking the serious step of sending a child away from the Indian to the foreign parent. Instead of courts, we are to have a Joint-Secretary-level government official acting as the “Central Authority” making this decision. The Central Authority has all the power of a civil court to locate and seize the child using the police, and (under Section 5(b)) to take over its custody pending deportation to the United States. It can do so without even so much as a warrant or show cause notice from a judge. It is not required to hear the Indian parent.

Fight-IPCA responds:

  • The authors seem concerned about privacy of the child while they ignore the elephant in the room i.e. child abuse occurring by abrupt removal of the child from it’s own parent. The Hague is written with the best interest of the child in mind i.e. the harm imposed on the child by one parent by the parent’s decision to unilaterally remove the child from its place of ordinary residence and moving it into another place that is totally new and away from the security of the other parent. This is an extreme situation forced upon the child by the abducting parent. As we have seen, even India’s own Guardians and Wards Act make it an offense to remove the child in such manner.

Disregard of best interests of the Child
Lawyers Collective says:
Article 12 and 13 of the Hague Convention place some restrictions on the power of a contracting State to deport a child, but the Bill as drafted renders these null and void. Under Chapter V of the Bill, the Central Authority may approach the High Court for deportation of the Indian child. This part of the Bill, places some limits on the High Court’s powers. For instance, deportation is not to be ordered if the child has settled into his home in India, or such deportation would place the child in an intolerable. But the High Court’s jurisdiction is said to be “without prejudice” to the Central Authority’s powers. This is a mere formality as the High Court can be circumvented if the Central Authority acts in exercise of its own powers (under Chapter III) and the Court will await the decision of the Central Authority before taking any decision and will be influenced by its decision.

Article 13 of the Convention provides for refusal to order return of the child ‘if the child objects’ or it will place the child in ‘intolerable situation’. At the same time, it has a puzzling provision that “information relating to the social background of the child” provided by the State of habitual residence (i.e. the State of the claimant) shall be taken into account in considering the child’s circumstances. It would appear that the Court would have to compare the social background of the child when in India as opposed to when it is in some foreign country. This seems to be a very discriminatory clause, aimed at undermining the Indian parents’ claim on the child solely based on her material circumstances. We already have some experience of the prejudicial approach of international organizations in this regard. For example, the standard ‘Home Study’ template for International Social Services, an NGO that processes inter-country placement of children, asks questions such as whether the persons to whom the child is to be sent have air conditioning and what their homes are like. The implication that someone of humble means is not worthy of keeping a child is very clear.

Under Article 12 of the Hague Convention, if the child has been in India for less than one year, then the child has to be sent back automatically, and considerations of whether it has settled in India with its Indian family do not apply. This timeline is meaningless for infants – one or two years old babies who have been in India for a year or close to that period know nothing else, and should not be treated as settled in India. Moreover, for a small child, one year is not a short period, but a very long one. Every three to six months it goes through radical cognitive and emotional changes. A Sic months in the eyes of a small child is a much longer time than in the eyes of an adult. So one year is not a child-centric timeline at all. In fact, mere number of days with the Indian resident parent should not be relevant, but a fair assessment of the situation of the child.

Also, though there is some provision under 15 for the views of the child to be taken into account, this is of no relevance for infants and who are toddlers are unable to express themselves. There is no recognition in the Hague Convention of the fact that ordinarily suckling infants, toddlers and small children have a deep need for their mothers. It is cruelty and enslavement of these helpless babes in arms to be subjected to laws that would result in their almost total deprivation of their mothers. Many parents day that they are refused visas to foreign countries owing to custody disputes over their children, so if such children are removed, the Indian parent would not even be able to follow them to the foreign country.

Fight-IPCA responds:

  • The authors consider everything else to be best interests of the child except the child’s needs to two parents, and justify the act of abrupt removal of the child from its once familiar atmosphere of 2 parents with who it is meant to have life long bonds and are the only 2 bonds it can rely on for security until and after it reaches adulthood.
  • The authors are not child psychologists and ignore the several studies on parental alienation conducted by experts and its harmful lifelong effects on children due to such cases of parental abduction.
  • The authors also make it appear as if Hague would separate a child from a mother while that is not the case. The Hague only provides for immediate return of the child to where it was uprooted from and nothing in the Hague framework prevents the taking parent from accompanying the child back to the country.
  • The authors also say that the taking parents sometimes have visa issues and hence cannot go back to the country while providing no conclusive evidence for the same. If the claims of abuse are real, then the parents have several options depending on their immigration status to accompany the child. If the child is too young and the mothers cannot accompany, the Central authority can refuse to send the child back in considering the best interests of the child.

Rights of Left-Behind Parents
Lawyers Collective says:
Though the Hague Convention is a draconian and insensitive law that should not be brought into force in India, we recognize that ideally a child should have access to both its parents. While the Hague Convention falls heavily on fleeing mothers, marital breakdown can result in fathers being shut out from the lives of their children – especially if the mother leaves for another country. Let us, by all means, negotiate terms with foreign Governments that would preserve and foster a child’s relationship with both its parents. But the Hague Convention and so-called Child Abduction Bill are not the means to do so. And, in considering this issue, let us be clear that we will not allow foreign child protection agencies to come into India through the backdoor using laws that are meant to cover international custody disputes between parents.

Fight-IPCA responds:

  • Authors again bring up issues of women fleeing violence with no supporting evidence of the same. They use that one argument to pull the carpet from under an umpteen number of cases where it is not
  • Authors continue to insist that incidents and allegations of abuse in a foreign country are to be adjudicated in India knowing very well that there is no way to collect evidence and knowing fully well the delays in doing so and the harm on children due to such prolonged litigation. The authors are completely insensitive and unsympathetic to the needs of the child, yet constantly bring up words like “best interest of child”
  • Authors also try to project an image of an American crusade against children of Indian ethnicity coming all the way to India and snatching children from the arms of their weeping mothers, providing no data or statistics to back those vitriolic statements.

 

Reply to : A new American bill causes unease in India

This is an open letter to Ms. Neeta Lal in reply to her article published in Gulf News titled

A new American Bill causes unease in India

http://gulfnews.com/opinion/thinkers/a-new-american-bill-causes-unease-in-india-1.2078463

By Neeta Lal, Special to Gulf News
Published: 18:28 August 22, 2017


 

Dear Ms. Lal,

A new bill introduced by the United States Congress has created a kerfuffle in India because India does not consider parental abduction as crime and parent alienation as child abuse. Majority of the developed Countries do consider parental abduction as crime and child abuse; and that is one of the reasons these developed Countries including Pakistan is signatory to The Hague Convention on the Civil Aspects of International Child Abduction, 1980.

Denying parental abduction will create an Indian society comprises of fatherless children and motherless children. This raises question for you Ms. Lal and for the entire India ‘what kind of society are we building?’ Are we paving the path to fatherless and motherless society?

India is a leading participant in a global village today and seeks to have good relationships with all the countries. Given that, it is imperative for India to recognize the challenges that come with it like International Parental Child Abduction (IPCA) and address them proactively to remain relevant in international affairs. “Bindu Philips and Devon Davenport International Child Abduction Return Act of 2017” is result of India and other countries non-compliance in returning American children to their habitual residence.

Ms. Lal, you wrote “The eponymous “Bindu Philips and Devon Davenport International Child Abduction Return Act of 2017” refers to two parents both of whom allege that their kids were abducted by their spouses and taken to India and Brazil respectively and their custodies not handed back to them despite US court’s orders”. First, when there is court order then it is no more allegations. Second, India’s denial to parental abduction does not mean the crime has not been committed. It is indeed committed in the Law of the Land. For example, ‘sati pratha’ was not a crime in India but as per British Laws it was cold blooded murder. When British intervened and threatened ‘you follow your culture we will follow our law’ during their rule and that caused decline in ‘sati’ tradition; and later law was introduced in India to stop it.

The statistics of last three years, according to the Department of State (USA), shows India is ranked number 2 where maximum USA born-citizen kids of Indian origin are abducted and retained illegally. India has become safe haven for IPCA.

India is already a United Nations Convention on the Rights of the Child (UNCRC) signatory. Hence, India is under obligation to respect the rights of the child and make sure the child enjoys healthy relationship with both parents. The Hague Abduction Convention facilitates this by expediting the return of the child from the place it was uprooted thus ensuring the continued parental care for the child. India is in violation of many articles of UNCRC. Reference: https://fight-ipca.com/wp-content/uploads/2017/05/un-crc-and-india.pdf

Law Commission of India objection to the very use of the term “child abduction” is DISAGREED.  Yes, one parent can abduct a child or children to settle the scores with spouse by keeping child/children away from him/her. The Abducting Parent is committing a child abuse to his/her own child/children by depriving love and affection of other parent. Please note, a child or children has no argument with his/her parents. All they want is their love, affection, care, and warm company. Abducting parent is a wall between left-behind-parent and children, Indian laws reinforces this wall. Parental abduction is a crime, Law Commission of India has to accept it at one point sooner or later. “such an abduction … is out of overwhelming love and affection and not to harm the child or achieve any other ulterior purpose”. Is “Overwhelming love and affection” which deprives love and affection of other parent worth it, justified? The ulterior purpose of abducting parent is to settle scores with spouse and forum-shopping of gender-biased laws.

Ministry of Women and Child Development and Ministry of External Affairs refusal to sign The Hague Convention is one of the reasons for “Bindu Phillip and Devon Davenport International Child Abduction Return Act of 2017”.

Signing The Hague Convention will also mean India is with rest of the developing countries.

Indian courts cannot decide what’s best for the child when Indian court orders are not even executed properly in India itself. There is no provision of joint custody in Indian court orders and visitation of other parent is life threatening business.

“Adhering to the Convention would be calamitous for Indian women trying to escape abusive marriages abroad with their children and returning to the safety of their homes in India.” This is a propaganda and false narrative build by lawyers who make money in dollars and pounds out of this business. Please visit USA, UK, and Europe and find out how women of any nation is well protected and supported by the Government and social organizations.

Violent relationship is to be decided by the courts. Please note that the rate of conviction under Domestic Violence Act 2005 and 498a is the least in all form of criminal cases in India. Spouse who is in violent relationship can also get out of relationship in foreign country then why that person has to flee to India? One wears GUCCI, Chanel, Armani, vacations, upscale living, but for divorce and child custody matters flee to India. What’s there in India? It is the judicial system of India which is a magnet to child abductors to take advantage.

Very recently on July 8, 2017, the Chief Justice of India, Hon’ble Shri Jagdish Singh Khehar, addressed the issue of India’s failure to sign the Hague Convention on the Civil Aspects of International Child Abduction and called upon the government to make a comprehensive law as children are the future of the nation and protection of their physical, mental and moral health cannot be compromised due to matrimonial disputes. Therefore, it is the Government’s duty to come up with a comprehensive law at international level.

Team Fight IPCA
fight.ipca@gmail.com