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The Protection of Children (Inter-Country removal and Retention) Bill, 2016

7 min read

Published on: August 03,2021 10:37 IST

By Nishita Makkar

Introduction

Once Oscar Wilde said, “The best way to make children good is to make them happy. Children are said to be the healers, when we are around them, they give us happiness with their naughtiness and laughter. But this innocence is needed to be protected.

Child Protection is about protecting children from or against any perceived or real danger or risk to their life and their childhood. They need to be saved from violence, exploitation, abuse etc. It also includes safe and happy environment and habitat.

But in some cases where cross border relationships breakdowns are involved, the children are abducted by their own parents to a different habitat. The child in these cases loses contact with the other parent totally and is introduced to a society of traditions and norms.

This can also be seen in the circumstances where domestic violence is involved. These types of cases are increasing as we are at the phase of globalization.

This article explains the recent bill in detail.

What is the Hague Convention, 1980?

The Hague Convention[1] also known as Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.

This protects children and their families against the risks of illegal, irregular, premature or ill-prepared adoptions abroad and also returning the child to his habitat or nation easily. For achieving the objective, Hague Convention:

  • Safeguards in place to ensure all inter-country adoptions to be in best interest of the child and respects their human rights,
  • Makes system of corporation among countries to guarantee that these safeguards are respected, and to prevent child sale, abduction or child trafficking.

For this, different countries have to sign the convention to become a part of this and if they do so have to abide by the rules and safeguards provided under the following convention.

They do not allow private adoptions in the child’s home country. The main objective is to protect the interest of the children as well as to provide them a happy and homely atmosphere where they can develop fully and freely.

It is to be noted that India has not opted for the Hague Convention till date.

What are India’s Plans?

In 2016, Punjab and Haryana High Court in Seema Kapoor & Anr. Vs Deepak Kapoor & Ors[2]., has asked the Law Commission of India to intervene and examine multiple inter-country, inter-parental removal issues, and asked to recommend whether the recommendations should be made for enacting a certain law or signing the Hague Abduction Commission. [3]

On this, the Law Commission investigated the cases and submitted 218th report (already made) titled “Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980), in March 2009. It has advised India to sign the Hague Convention, but it has not been till date.

Also, the Commission has found out that Government of India has already proposed a draft titled as “Civil Aspects of International Child Abduction Bill, 2016” which was broadly based on the Hague Convention.

Then Bill was put on the website of Ministry of Women and Child Development for making comments and suggestions for its improvement.

The Commission under Justice B.S. Chauhan examined the Bill thoroughly and came to a conclusion that the Bill required modifications. In its 263rd report, the needful modifications and amendments were done and a new Bill named The Protection of Children (Inter-country Removal and Retention) Bill, 2016.

It also stated that this report sets a stage for India to sign Hague Commission and it was submitted to Law Minister Shri Ravi Shankar Prasad.

How are children affected by domestic violence?

Domestic violence can be referred to as one of the main reasons of child abduction. Generally, a victim woman runs away along with the child which may cause serious impacts on the child.

In such cases it is the duty of the court that both the child and the mother do not get harm morally, physically as well as psychologically when both are residing in India. This action can go against the women’s legal interest. It is to be secured so that could be no room for injustice.

The court has to see that the women should not have to choose between her children or the abusive relationship as this can be danger to her life as well as her children and family.

Moreover, in these cases the custody has additional challenges. Mostly women involved in these cases run to the countries of which they have citizenship even if it was not their ‘habitual resident’.

What are the Salient Features of the Bill?

As we know that this Bill mainly aims at protecting the interest of the Children who are abducted and has faced inter-country removal by their own parents. They need to be protected morally, physically, psychologically and legally. The Bill has undergone various changes by the Law Commission of India.

Few of the Salient features of the revised recommended Bill Protection of Children (Inter-country Removal and Retention) Bill, 2016 are as follows:

  • The Bill envisages the Constitution of a Central Authority that works specially for achieving the objective of the bill.
  • A decision under the Hague Convention, 1980 concerning the return of the child is not a final determination on merits of the issue of custody.
  • It emphasis the role of the Central Authorities with regard to a Child, who is removed to India, and from India to another Contracting State of the Hague Convention, 1980. But still not signing the Hague Convention, 1980.
  • It also lays down the procedure for securing the return of a child and provides for the Central Authority to apply to the High Court for restoring custody of the child. Hence, it now states every step efficiently and unambiguously.
  • The Bill empowers the court to deny custody or certain grounds also. It allows the Courts in India to recognize decisions of State of the ‘habitual residence’ of the child. It also states that the Indian court that wants to disregard the interim/final order of the foreign Court must record reasons for the same.

Hence, in this way the Bill can prove to be a great step for the children who have been suffered in inter-country removal as well as their easy retention or not whichever goes with the interest of the particular child in particular situation.

Case laws

  • Laxmi Kant Pandey Vs Union of India[4]

Emphasis on importance of best interests of child

In this case, the Court stated that the absence of legal regulation of inter-country adoptions in India could cause great harm to Indian children who may be exposed to trafficking and profiteering.

The Court directed to form a clear procedure and adoption agency has to be licensed by the government of India for inter-country adoptions. The main concern should be the well being and welfare of the child.

  • Gaurav Jain Vs Union of India[5]

Every child has a right to be a part of mainstream social life.

The Supreme Court held that the children of prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so that they can also be a part of mainstream social life without any pre-stigma attached.

Hence, no child should be discriminated on any terms including the actions of their parents in which child has no role.

  • Dr. V. Ravi Chandran Vs Union of India[6]

The Child was sent back to its habitual residence

In the following case, The Supreme Court directed to return the children to the country of their ‘habitual residence’ on the principle of Comity of Courts. The welfare of the children was the prime concern in the case.

Comity of courts allows one state or jurisdiction to give effect to the laws and decisions of another, not as a matter of obligation, but out of deference and respect.

  • Roxann Sharma Vs Arun Sharma[7]

The custody of child given to the mother for the child’s welfare

It was a landmark case due to the fact that the custody of the child was given to mother who was well-educated and self-sufficient whereas the father was jobless, the Apex Court decided that the custody of the child below five years of age should be mother for well being and development of the child.

Conclusion

To sum up everything that has been stated so far, children are the future pillars of the nation and that’s why are needed to be protected against various evils. So far, India being a developing country is fighting daily with the changing circumstances even in legal perspective.

These can be seen from the various amendments and new Bills. Similarly, in this case of inter-country removal of children the bill has been developed.

The Bill here particularly directed towards the welfare of children who are world’s actual wealth. The 236th Report of the Law Commission mentions that domestic violence is also responsible for such cases. Initiatives by the Indian government have also been recognized.

The new bill also differentiates between the Abduction and inter-country removal. It also provides several powers to the Courts in these cases like the power of rejection of order given by foreign courts.

A Central authority has also been proposed to be made to keep check on all such cases as well as to provide help with the procedure of the courts. It even used the term expeditious which means with speed and efficiency as these matters are quite delicate.

According to Justice B.S. Chauhan, it also sets a stage for India to sign the Hague Convention, 1980. Well, the priority should be the innocent child who has right to enjoy his childhood with happiness, love and peace and to stop any kind of misbehavior and bad impact on the child.

References

  1. “International Child Abduction”, available at: justice.ie(Last visited on July 28th, 2021)
  2. Seema Kapoor and Anr. Vs Deepak Kapoor and Ors, CR No. 6449/2006
  3. Krishnadas Rajagopal, “Protecting children from ‘abduction’”, available at: thehindu.com(Last visited on 28th July , 2021)
  4. Laxmi Kant Pandey Vs Union of India, AIR 1984 SC 469
  5. Gaurav Jain Vs Union of India, AIR 1997 SC 2021
  6. Dr. V. Ravi Chandran Vs Union of India, (2010) 1 SCC 174
  7. Roxann Sharma Vs Arun Sharma, AIR 2015 SC 2232

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