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, 2016
Prompt 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.
The Committee then makes the following recommendations:
No compromise with child's best interest
Data on NRIs/PRIs/OCIs/Other category of Indian diaspora
Indian Embassies: First point of contact
First step: Mediation
Child shouldn't be reduced to a commodity
Prompt legal aid
Behavioral counseling and other assistance
Convenience of parties
Ensuring well-being of the child
Immediate reporting to the Authority of child's return
Foster case shouldn't be encouraged
Steps to be taken when apprehension of abuse exists
Considerations while passing final order
Every action shouldn't be taken as a criminal offence
A single nodal authority
Best interest of child be added as an exception for refusing the child's return
Composition of the committee
Maintenance of records and confidentiality
Supply of copy of order to the parties
Presence of members
SOP for District Magistrates
Online filling of applications and information contained therein
Sensitization and updation of all stakeholders
Mandatory furnishing of Email ids and phone numbers of parties
Particulars on the website of the Authority
Password protected information on cases
Sanitization of final orders
Proposed bill can be added as Chapter in JJ Act
Reasons for delay to be furnished to Government
Language of communication
Security for execution of order