The US pressure on India to sign the Hague Convention shows yet again how self-serving Western countries are when they make demands of developing nations in the name of child welfare or other “soft” issues. The Hague Convention labels mothers as “abductors” when they leave foreign countries with their children to return home on the breakup of their marriages. It demands the forced extradition of children, no matter how small, to the country of previous residence and without any regard for whether the mother can live there or not. For the first time, perhaps in history, middle class Indian women are able to be independent and take care of their children themselves. This leads to an inevitable and we hope temporary phase of strain in all marriages, but especially NRI marriages, as Indian society reorients itself to new values. You would think that the USA would be rooting for Indian mothers as they begin to assert themselves in a changing society. But this is not the case.
This article was first published in the Sunday Guardian on 19 May 2018 with the title, “India must not give in to the US’ ‘global bullying’ tactics” as part of the ongoing weekly series called “Global Child Rights and Wrongs” in collaboration with this website, www.saveyourchildren.in. The series critiques the role of governments and NGOs in the child rights field.
India is under relentless pressure from the United States of America to accede to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). As the pressure on India mounts to accept this outdated and flawed Convention, it becomes prudent to take a closer look at whether it achieves what it claims to do, viz., protect the welfare of children.
It is pertinent to note at the outset that the Hague Convention does not address the cause of the so-called “abduction” of a child by a parent, typically the mother. It only provides a one-size-fits-all solution of forcing the child back to the country they left with the leaving parent. For instance, the Hague Convention does not recognise “domestic violence” as a factor in the alleged abduction; the phrase is nowhere to be found in its text. The alleged perpetrators of the abduction, generally mothers, are often faced with the unenviable option of staying in an abusive environment, leaving without their children, or leaving with their children. Each of these choices comes with great costs and hardships that are overlooked when mothers leaving bad marriages are accused in courts of “child abduction”.
The flaws of the Hague Convention in this respect have been acknowledged even in the US, albeit belatedly. In 2014, thirty-four years after the Convention came into force (in 1980), the United States Supreme Court in the Hague Convention case of Lozano v. Montoya Alvarez, recognised the impact of domestic violence on the child for the first time. The Hague Domestic Violence Project at the University of California, Berkley conducted a path breaking study on “Hague domestic violence cases” in the United States. The study found that nearly half of the women and/or children who returned to the country of so-called “habitual residence”, were victims of renewed violence or threats by the same abusers from whom they had originally fled. Mothers reported that none of the court orders or voluntary undertakings from their spouses aimed at protecting them or their children upon their return to the country which they had fled were implemented or followed through.
Some Non-Resident Indian (NRI) marriages can be a nightmare for the woman. This is especially true where the women are dependent on their spouses for visas or Green Cards, medical insurance or even day-to-day living expenses. Despite all the talk about equality, many Indians abroad continue to follow the traditional family lifestyle. Men expect their wives to toe the line, and the burden of running the household and caring for the children falls entirely on the women, irrespective of their employment status.
When such a relationship turns out to be physically or emotionally abusive, the life for the victimized mother and child can be hellish. The prescribed remedy of seeking help from the authorities, thought of in the USA as a safeguard mechanism, is fraught with danger for the children involved. When abuse in a household with children is reported to the authorities, Child Protective Services (CPS) inevitably get involved. The strategy that is generally deployed is to remove the children from the abusive household first and ask questions later. Thus, the mother is not only faced with an abusive marriage, but she also faces losing her children to CPS and ultimately, to foster care.
Even in situations without domestic violence, if the marriage breaks down and the mother, as the primary care giver, feels that she needs to be in India with her family and with other support, she should not be penalised or treated as an abductor. An immigrant woman faces many economic, legal, and social hurdles in an alien land. Without the support of her spouse, she may feel the need to return “home” to her country of origin where she can feel safe and her children may be taken care of. This is a human situation that the Hague Convention fails to recognise.
Article 13(b) of the Hague Convention makes an exception where the return to the country of habitual residence poses a “grave danger”, but it has never been successfully defended. The Article does not clearly prescribe what constitutes “grave danger”, and puts a high burden of proof on the victim. Research on the International Child Abduction database (HCCH INCADAT) of the “grave risk” defence under the Hague Convention demonstrates that the threshold for establishing this defence is very high and does not allow for the real life considerations that may compel a parent to leave the country of habitual residence in the best interests of the child. For example, in the case of Medhurt and Markle, the mother was unable to establish the “grave risk” defence when she argued that financial dependence on her ex-husband was harmful to her. The court ordered her 5-month-old infant back and refused to respect the mother’s work rights. In another case, Mahler v Mahler, the court held that alcoholism, lack of financial support and confrontational and abusive behaviour, even when proven, would not necessarily qualify as “grave risk” under the Hague Convention. Both daughters, 6 and 1.5 years old, were ordered back to the country of habitual residence. There are many other such examples.
Another flaw in the Hague Convention is that it does not take into account the fact that claimants may be making false allegations of “abduction”. The possibility that an abduction complaint is filed as an afterthought to intimidate the mother into submission, is not even considered in the Hague Convention. There are cases where abduction claims were filed as an afterthought to pressurise the other party, when in fact the entire family came to India voluntarily. An example is the case of Maya Singh, whose husband abandoned her in India with an infant of 8 months. When she approached the courts to file for divorce, her husband, by then in the US, invoked the infamous US “International Parental Kidnapping Crime Act” (IPKCA), to terrorise her internationally, and avoid his alimony and child support responsibilities. In some cases, the mothers even have in their possession notarised consent for relocation from the spouse who later claimed abduction.
The Justice Bindal Committee has earlier this month given its report to the Ministry of Women and Child Development on whether India should accede to the Hague Convention. The Bindal Committee Report rightly questions the Hague Convention’s approach of holding “habitual residence” as being the paramount issue in determining the welfare of a child. The Report points to failed marriages and domestic violence as an important factor causing women to return to India with their children. It correctly rejects the Hague Convention’s one-size-fits-all formula of forcing the child back to the country of habitual residence. Instead, the Committee recommends an approach where the best interests of the child and merits of a case are analysed case-by-case, while placing due emphasis on Indian family arrangements, such as the presence of grandparents and extended family to help in raising children. The Committee correctly points out that the US solution of foster care is not optimal for a child in the Indian context, where the extended family is available to step-in for care of the child when needed.
However, certain of the Bindal Committee’s recommendations need reconsideration. The Committee proposes a Nodal Authority as a one-window solution in international custody disputes. However, lack of judicial procedure and appeal process violates the right to due process under law. We are also concerned that it would be dangerous to give such unfettered power to a non-judicial authority. The proposed new laws should not be included in the Juvenile Justice Act which carries penal provisions. Jailing a mother trying to protect herself and her child is inhumane. The proposed measures of the Bindal Committee overlook the fact that false abduction cases are rampant and that vindictive spouses are abusing the loopholes in the system to register false cases even after having given consent to relocate from the so-called country of habitual residence. A full court hearing rather than an extra-judicial procedure is the correct forum to decide these matters. One important factor that is not addressed in the Bindal Committee Report is that the US government is clamping down on visas. Under the circumstances, if the child in an international custody dispute is ordered back to the US or other visa-unfriendly country, who shoulders the responsibility of giving a visa to the Indian resident parent?
It should also be made clear that any new law will not be retrospective. Parents who have been back for 4-5 years and have been litigating with temporary or permanent custody orders awarded to them by Indian courts, cannot be asked to re-litigate under a new law that may come into effect.
The United States in continuing to demand that India accede to the Hague Convention, is engaging in nothing more than global bullying. Just because a child has one parent in the US, the family, even mothers and babes-in-arms are being used as fodder by the US to assert its power and authority. The United States itself refuses to accede to the United Nations Convention for the Rights of the Child, stating that it violates US sovereignty. The Indian Government, were it to accede to US demands, would be irrevocably compromising India’s sovereignty, while disregarding the plight of its own women and children. It is the Constitutional right of every woman and child of Indian origin to return to their homeland to enjoy a peaceful, safe and dignified life. How can the Government bar people of Indian origin from returning home?
Very few developing countries have signed the Hague Convention, as its provisions fall heavier on the party from the developing world. The USA is pushing India to accede to the Hague Convention so as to use India’s accession to persuade other developing countries to do the same. We hope that India will refuse to accede to the Hague Convention, or any law permitting the summary extradition of Indian origin children to foreign lands.
Niharika Dass is a member of India Is Home for Our Kids, an India-based, voluntary organisation of parents, primarily mothers, victimised by false child abduction allegations in international custody disputes.