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:
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.
Team fight-ipca on behalf of left-behind parents
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
Left-behind parents in USA