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International Child Abduction And Domestic Violence: Why Children Are Sent Back To Violent Homes

By adopting The Hague Convention as is, are we doing justice to Indian women and children trapped in violent homes in foreign countries?

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The Indian government is drafting a law 'The International Child Removal and Retention Bill 2016' that will set the stage for India to adopt the 1983 Hague Convention on the Civil Aspects of International Parental Child Abduction that has 94 countries as signatories. The "Hague Convention" as it is popularly referred to, sets international law for cases where children are abducted from one country to another. Countries that are signatories are expected to facilitate speedy return of abducted children back to their countries of "habitual residence" where the domestic courts will decide on custody and other related matters.

The latest available data on Hague Convention cases shows that globally 68 per cent of the taking parents were mothers; 85 per cent of these respondent mothers were the primary caregivers of their children and 54 per cent had gone home to a country in which they held citizenship; the majority of these women were fleeing abusive and violent homes. In short, half of Hague Convention cases are not 'parental abduction' but rather 'flights to safety'.

The Hague Convention does not recognise domestic violence as a factor in parental abduction, the phrase is nowhere to be found in its text. It is also silent on globally recognised linkages between violence against women and violence against children, even when children are not the specific target of the violence. Women who leave often face the unenviable option of staying in a severely abusive environment, leaving without their children and going away, or leaving with their children. Each of these choices comes with tremendous costs and hardships that are overlooked when mothers fleeing violence are accused in courts of “jurisdiction shopping”.

The United States government, the biggest supporter of the Hague Convention, is urging countries such as India to adopt it. The United States Supreme Court in a landmark judgement LOZANO v. MONTOYA ALVAREZ in 2014, a Hague Convention case relating to domestic violence, recognised the impact of domestic violence on the child. The Hague Domestic Violence Project at The University of Berkeley, California, conducted a path breaking study on 'Hague domestic violence cases' in the United States. The findings of the study showed that almost half of the women and/or children who returned to their country of habitual residence were victims of renewed violence or threats by the fathers on their return to the other country. Mothers reported that none of the court ordered or voluntary undertaking aimed at protecting them and/or their children upon return to the other country were implemented. Indian law reform needs to reflect current realities around the Hague Convention and not be pressurised by foreign countries into adopting a flawed law as is.

The Hague Convention does not mandate return in every instance; where there is grave psychological or physical risk to the child; where the child will be returned to an "intolerable situation"; if the left behind parent does not have custody; if the child has reached a suitable age where their point of view may be taken into account. None of these conditions are however binding on a judge presiding over a Hague Case, who may overlook them.

Experts further argue that the convention's wording leaves significant loopholes for subjective interpretation by a conservative leaning judiciary in individual cases. They opine that even the US courts tend not to take seriously, the issue of protection from abusive husband and fathers, in child custody matters.

How can the proposed law in India accommodate these concerns? Differentiate between Hague Cases that are parental abduction and flights to safety. The National Commission for the Protection of Children's Rights (NCPCR) and the National Commission for Women (NCW) can commission research to provide India specific evidence to inform the global debate. The various institutions that protect women and children can engage with the judiciary and other arms of the government pro-actively to present a women and child centric approach when it comes to assessing Hague domestic violence cases.

By adopting The Hague Convention as is, are we doing justice to Indian women and children trapped in violent homes in foreign countries?

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