The Hague Convention on the Civil Aspects of International Child Abduction [“Hague Convention”] was concluded in 1980, to facilitate the quick return of children removed by a parent from the country of habitual residence of the child to another country. This convention was premised on the assumption that removal of a child from their place of habitual residence is not in her interest, and is likely to be detrimental to her mental well-being. It further sought to discourage ‘forum shopping’ by abducting parents.
India had taken a principled stand against the Convention, and refused to sign it in the interest of Indian women abroad. However, the Women and Child Development Minister recently stated that India may reconsider its position on this issue. This raised serious concerns about the effect that the implementation of this Convention may have on Indian women in NRI marriages. Below is an overview of the factors that inform this debate in India.
In the initial years of the Convention, it was used primarily by mothers, as primary caregivers, who sought the return of children abducted by fathers. As such, the convention did not pre-empt a situation where the primary caregiver (usually the mother) would remove the child to another country.
However, it is now largely accepted that in the recent years, primary caregivers, a majority of whom are mothers, have been the abducting parent. This fact has also been recognised by the Law Commission in its 263rd Report, which states that globally 68% of the abducting parents were mothers, 85% of them being the primary caregivers.
In my considered opinion, mothers are more likely to remove their children and leave the place of habitual residence because they are often trapped in abusive marriages abroad, with no financial security to contest exorbitantly costly divorce, maintenance, or custody litigation. In such a situation, returning to their country of origin by surreptitiously fleeing from their abusive husbands is often the only option open to them. Most Indian women who settle abroad to support their husbands’ careers are not empowered enough to be either financially or emotionally independent.
It is pertinent to note that these women are often the primary caregivers of the children who are sought to be returned. Ordering the return of the child could result in his/her separation from the primary caregiver if she is unable or unwilling to return to an abusive environment. This is likely to psychologically traumatize the child. Often, an order of return of the child compels the mother to return to the place where she was helpless and unhappy. This is in violation of the mother’s right to choose the place of her residence, which consequently has a negative impact on the child as well. It also reinforces patriarchy, as the mother continues to be financially dependent on her abuser.
The Hague Convention does not take into account the exigent circumstances in which most primary caregivers (mostly mothers) are compelled to leave their countries of residence. The fact that the convention does not take into account the psychological trauma that the child may face if separated from his/her primary caregiver makes evident the lack of in-depth understanding of what constitutes welfare and best interest of the child.
If India signs the Hague Convention, return of the child to the place of habitual residence will become a matter of procedure, thus severely compromising children’s interests. Moreover, it will severely disempower thousands of women who may want to seek refuge in their home country when faced with domestic violence and abuse in marriages abroad.