STATE TIMES NEWS JAMMU: A 3-Judge Bench of Supreme Court comprising Justices R. F. Nariman, Ravindra Bhat and V Ramasubramanian heard a petition pertaining to framing of guidelines against International Parental Child Abduction (IPCA) and adjourned the matter as ‘Part-Heard’. The central issue in the PIL filed on behalf of a US based NGO named “Bring Your Kids Home” was absence (or lack thereof) of mechanisms in place to counter cross-border abductions by parents of children. Advocate Shadan Farasat led arguments on behalf of the petitioner-NGO. His assertions were regarding inaction by the Government to enact a normative framework for the aforementioned issue which had multitudinous ramifications. “India ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1992 which imposes various international obligations on India with respect to illegal removal of child from one jurisdiction to another jurisdiction so as to deny the child and/or one or both of his parents’ access to each other” averred Farasat. In light of this, he further submitted that the Law Commission of India in its 218th report and 263rd report had suggested legislative and other changes to the legal framework in India. However in violation of India’s obligation under the UNCRC, these proposals, bills etc., had been put in cold storage by the Government of India, allowing the unacceptable status-quo to continue, he maintained.
Following this, Advocate Malvika Rajkotia appeared as an intervener in her personal capacity and brought to light the issue of gender-oriented discrimination in this issue, asserting that guidelines should be made in tune with this situation in real time.
“Time is important in the context of children. No doubt, welfare is important. But children’s welfare supersedes everything” added Rajkotia.
ASG Pinky Anand made submissions on behalf of the Union and while pointing to the Affidavit filed on behalf of the Ministry of external affairs, stated that the Government was currently formulating a framework in light of the observations in the ‘Bindal Committee Report’.
It is worthwhile to mention here that the Justice Rajesh Bindal committee has submitted on legal issues related to inter country removal and retention of children its report to Ministry of Women and Child Development (WCD). Along with its recommendation, Committee has also submitted draft legislation- International Child Abduction bill to the Government. The WCD Ministry will be sharing the report with Ministry of External Affairs (MEA), Law Ministry and Ministry of Home Affairs (MHA) for their comments and inputs.
Justice Rajesh Bindal Committee recommended that Government should establish ‘Inter Country Parental Child Removal Disputes Resolution Authority (ICPCRDRA)’ and stressed on need for mediation as first step. The authority will be chaired by retired High Court Judge and shall have members from Legal and Social sector background along with representatives from key Ministries. It will envisaged to provide one window solution in cases of inter country removal and retention of children. The authority will examine inter country cases of removal and retention of children vis-a-vis cultural context, merit of case, and best interest of child.
The background is that there are over three crore Indians living abroad having cross-border marriages. When such diverse marriage breaks down, their children suffer as they are dragged into international legal battle between their parents over their custody. In this battle children are abducted by one parent and taken to country with different culture. Currently, there is no specific legislation in India addressing issues related to abduction of children from and into India. Law Commission of India (LCI) in its 218th Report titled ‘Need to accede to Hague Convention on the Civil Aspects of International Child Abduction 1980’ had prepared draft legislation titled ‘The Civil Aspects of International Child Abduction Bill, 2016’ to address the issue and support India’s accession to Hague Convention on Civil Aspects of International Child Abduction 1980. Hague Convention is multilateral treaty that seeks to protect children from harmful effects of abduction and retention across international boundaries by providing procedure to bring about their prompt return. Ninety four states are party to it. India is not signatory to it (as country has to have domestic law in place before it can become signatory). The convention is applicable to any child, up to age of 16 years who is habitual resident of any of contacting states.
The Bench, pointed to the ineptitude of the Government in dealing with the issues and the long drawn delay in implementing recommendations of the Bindal Committee Report sought clarifications from the ASG on the same.
Justice Nariman observed, “Surely in the absence of legislations, some guidelines need to be implemented. This Committee has done lots of work. Doing nothing about it makes no sense.”
With this, the matter was adjourned and was directed to be listed post the Holi break.
The Bindal Committee Report was headed by Justice Rajesh Bindal presently First Puisne Judge of J&K High Court and was submitted to the WCD Minister on April 23, 2018. It had made observations and recommendations on Inter-country removal and retention of children in line with India’s international obligations in the UNRC.
Till date, no framework exists in line with the issue. Advocate Shadan Farasat was assisted by Advocate Shruti Narayan and the ASG was assisted by Advocate Snidha Mehra.
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