Spearheading Domestic Violence On A Global Stage
In 2016, the Indian government drafted the Civil Aspects of International Child Abduction Bill, 2016 that set the stage for India to adopt the 1983 Hague Convention on the Civil Aspects of International Parental Child Abduction that has 94 countries as signatories. The Indian bill clarified that states need to have effective respect for other states and should assist, encourage, and cooperate in the return of the child. "Best interest of the child", "habitual residence", "rights of custody" and role of central authority with a provision of appeal were considered and revised.
The most notable feature of the bill is that "domestic violence as per the Protection of Women from Domestic Violence Act, 2005" has been recognized as an exception to the return of a child and a period of 60 days has been fixed for making arrangements to return the child.
The "Hague Convention" that was conceived in the 1980s, sets international law for cases where children are abducted from one country to another. Countries that are signatories are expected to facilitate the speedy return of abducted children back to their countries of "habitual residence" where the domestic courts will decide on custody and other related matters. The Hague Convention does not recognize domestic violence as a factor in a parental abduction, the phrase is nowhere to be found in its text. This is out of touch with the reality of women escaping abusive marriages globally.
It is also silent on globally recognized linkages between violence against women and violence against children, even when children are not the specific target of the violence. Women who leave often face the unenviable option of staying in a severely abusive environment, leaving without their children, and going away, or leaving with their children. Each of these choices comes with tremendous costs and hardships that are overlooked when mothers fleeing violence are accused in courts of "jurisdiction shopping".
The Hague Domestic Violence Project at The University of Berkeley, California conducted a pathbreaking study on Hague Convention cases that shows globally 68 percent of the taking parents were mothers; 85 percent of these respondent mothers were the primary caregivers of their children and 54 percent had gone home to a country in which they held citizenship; the majority of these women were fleeing abusive and violent homes. In short, half of Hague Convention cases are not 'parental abduction' but rather 'flights to safety. The study also found that almost half of the women and/or children who returned to their country of habitual residence were victims of renewed violence or threats by the fathers on their return to the other country. Mothers reported that none of the court-ordered, or voluntary undertakings aimed at protecting them and/or their children upon return to the other country were implemented. Indian law reform needs to reflect current realities around the Hague Convention and not be pressurized by foreign countries into adopting a flawed law as is.
The Hague Convention does not mandate return in every instance; where there is a grave psychological or physical risk to the child; where the child will be returned to an "intolerable situation"; if the left-behind parent does not have custody; if the child has reached a suitable age where their point of view may be taken into account. None of these conditions are however binding on a judge presiding over a Hague Case, who may overlook them. Professor Joan Meier at George Washington Law School argues that the convention's wording leaves significant loopholes for subjective interpretation by a conservative-leaning judiciary in individual cases. She opines that even the US courts tend not to take seriously, the issue of protection from abusive husbands and fathers, in child custody matters.
How can the proposed law in India accommodate these concerns? Differentiate between Hague Cases that are parental abduction and flights to safety. The National Commission for the Protection of Children's Rights (NCPCR) and the National Commission for Women (NCW) can commission research to provide India-specific evidence to inform the global debate. The various institutions that protect women and children can engage with the judiciary and other arms of the government pro-actively to present a women and child-centric approach when it comes to assessing Hague domestic violence cases.
India has already taken adopted a gender forward approach to International Parental Abduction cases by including a caveat on domestic violence. Instead of signing the Hague Convention as is, the present government is well poised to advocate on a global stage for the inclusion of domestic violence in the now-outdated "Hague Convention" governing international child removal. We hope that the Ministry of Women and Children will seize the moment on this issue that affects half a million women globally a large portion of which are Indian women escaping domestic violence.
