Justice Rajesh Bindal Committee Suggests One Window Solution For Inter-Country Removal & Retention Of Children [Read Report]

The Committee headed by Punjab and Haryana HC Judge, Justice Rajesh Bindal has examined issues relating to inter-country parental child removal, and has suggested a model legislation to safeguard interests of the parents and the children.The High Level Committee was constituted on 18 May, 2017, and has now stressed upon the need for mediation as the first step. It has also suggested that the Government may establish an 'Inter Country Parental Child Removal Disputes Resolution Authority'. This authority has been envisioned as a "one window solution" in cases of inter country removal and retention of children.Besides, the Committee has also submitted The Civil Aspects of International Child Abduction Bill, 2016 and The Protection of Children (Inter-Country Removal and Retention) Bill, 2016Prompt return to "Habitual residence" The Committee acknowledges that the Hague Convention on the Civil Aspects of International Child Abduction, 1980 does not decide the issue of custody of the children but provides a mechanism to ensure speedy and prompt return of the child to the place of its "habitual residence".It, however, opines that the concept of habitual residence is not synchronous with the best interest of the child. Having elaborated on several aspects of the problems that confront a child caught in such situations, it notes, "There is no denying the fact that uprooting of a child from its habitual environs and sociocultural milieu may impact it negatively, but this is just one side of this polygonal problem".The report further explains, "The Committee has no misgivings about the noble intent of the Hague Convention of 1980, which seeks to reintegrate a child with the place of its habitual residence but weighing the other issues involved, habitual residence as sole criterion to determine the best interest of the child, does not seem just and fair. The left-behind parents (LBPs) have raised the issue of complete isolation from the child and thus demand return of the child, even as old as two years. On the other hand, the flight-to-safety parents exhibit apprehension of continued violence and harassment upon going back."It then suggests the institution of an 'Inter-Country Parental Child Removal Disputes Resolution Authority', which will be headed by a Supreme Court Judge, or a High Court Chief Justice, or a High Court Judge who has served for not less than five years.RecommendationsThe Committee then makes the following recommendations:No compromise with child's best interest Process of decision making regarding custody of children is not a mechanical exercise rather has to be dealt with by application of mind. We cannot compromise with best interest of child for speedy return.Data on NRIs/PRIs/OCIs/Other category of Indian diaspora The proposed Authority should maintain complete data of Indian citizens going abroad as well as of the NRIs/PRIs/OCIs/ Other category of Indian diaspora, including their addresses, phone numbers and e-mail ids. Updation of any change therein should be their responsibility. The Indian diaspora living abroad should mandatorily get any additions in their families, by way of marriage/birth/adoption, registered with the Indian Embassy in the country where they reside. On-line solution therefore, should also be provided.Indian Embassies: First point of contact Indian Embassies across the world should educate the Indian diaspora abroad that the Embassies or Consulate offices abroad shall be the first point of contact in cases of international parental child removal or any dispute, wherever any guidance or assistance is required. Complete information about the person to be contacted should be available on website, including answers to FAQs. The Embassies should educate the persons living abroad about the proposed Authority, after it is constituted.First step: Mediation Mediation often proves a successful technique to resolve disputes amongst couples at odds. In most of the cases where one of the spouses removes the child from joint custody/custody of other spouse, the root cause is lack of harmony in the spousal relationship. Sometimes, if made to sit across the table with a mediator, the likelihood of better sense prevailing upon the couple increases, therefore, the Authority should promote mediation as the first resort. Even Hague Conference on Private International Law has issued 'Guide to Good Practice on Mediation' in 2012 and is promoting mediation at the very first stage, not only for resolution of disputes pertaining to parties belonging to Contracting States but even non-Contracting States to the Hague Convention. A list of trained mediators should be available on the website of the Central Authority. The parties should be given liberty to select mediator through consensus even beyond the list available on the website of the Authority. In cases of inter-country parental child removal, where the parties are not able to sit across the table because of unavoidable reasons, IT solutions...

Justice Rajesh Bindal Committee Suggests One Window Solution For Inter-Country Removal & Retention Of Children [Read Report]

Apoorva Mandhani

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