- The twenty first Law Commission has released its first report titled, “The Protection of Children (Inter-Country Removal and Retention) Bill, 2016.”
- The report addresses the issue of ‘International Parental Child Abduction,’ examining in depth the provisions of the Civil Aspects of International Child Abduction Bill, 2016. It has prepared a comparative statement showing the provisions of the said Bill, and has introduced modifications in the form of another Bill titled, The Protection of Children (Inter-Country Removal and Retention) Bill, 2016.
- It recognizes the issue of inter-spousal child removal on breakdown of diverse family units, in a situation where children are abducted by their own parents to India or to other foreign jurisdictions, in violation of interim/final orders of competent Courts. At the outset, the report relies on the principle of ‘best interests of the child’, as invoked by the Hague Convention, 1980 and the International Child Abduction Bill.
- Further, referring to various judicial pronouncements, it notes that it has been repeatedly held by Courts that repatriation of the child to the foreign land should not (a) cause any moral, physical, social, cultural or psychological harm to the child; (b) cause any legal harm to the parent with whom the child is in India; (c) violate the fundamental principles of human rights and freedoms of the receiving country, i.e., where the child is being held and; (d) considering the child welfare principle, due importance must be given to the primary care-giver of the child.
Salient features of the Bill drafted by the Government of India:
- The Bill provides for the constitution of a Central Authority.
- 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 outlines 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.
- It lays down 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.
- It empowers the Court to deny custody on certain grounds.
- 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.
Salient features of the LCI Bill:
- The Commission recommends removal of the term ‘abduction’ from the Bill, to bring it in consonance with the Hague Convention, which in its opinion employs the term as a short hand for a more appropriate terminology, “wrongful removal or retention”.
- It extends its application to children below 16 years of age, who have either been wrongfully removed to, or retained in India.
- As per the proposed Bill, the Central Authority would comprise of a Chairperson and two members.
- The Chairperson must be an officer, not below the rank of Joint Secretary to the Government of India. Out of the two members, at least one shall be an advocate with ten years of practicing experience. Their tenure of office would be three years.
- In addition to the powers already endowed on the Central Authority under the Government Bill, the proposed Bill makes the powers of requisitioning any public record or document subject to the provisions of Section 123 and 124 of the Indian Evidence Act, 1872.
- The Central Authority may apply to the High Court of appropriate jurisdiction, demanding a direction for return of the child to the contracting State in which the child has his or her habitual residence.
- An appeal from a decision of the Central Authority rests with the Central Government.
The exceptions provided for the return of the child are:
- When the person claiming custody rights was either not exercising such rights at the time of removal, or had consented to the same.
- When the removal of the child would expose him to physical or psychological harm or otherwise place him in a non-conducive situation.
- When the person accused of wrongful removal was actually fleeing from any incidence of domestic violence, as defined under the Protection of Women from Domestic Violence Act, 2005.
- The LCI Bill makes provision for payment of expenses incurred by the Central Authority, by the person who removed from, or retained the child in India.
- The punishment prescribed for wrongful removal or retention is jail term for a maximum period of one year, or fine up to rupees ten thousand or both.
- The punishment prescribed for willful misrepresentation or concealment of fact, thereby preventing the safe return of the child, is jail term for a maximum period of three months, or fine up to five thousand, or both.
- It mandates maintenance of records concerning applications and cases brought to the Central Authority.