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Government panel suggests one-window solution for inter-country removal of children

Apr 24, 2018 15:50 IST
Government panel suggests one-window solution for inter-country removal of children

A panel that was appointed by the Union Government has recommended one window solution in cases of inter-country removal and retention of children.

An official statement by the Women and Child Development Ministry on April 23, 2018 read, "stressing upon the need for mediation as the first step, the committee has recommended that the Government may establish an 'Inter-Country Parental Child Removal Disputes Resolution Authority'.”

Key Recommendations of the Committee

• The committee, headed by Justice Rajesh Bindal of Punjab and Haryana High Court, submitted its report on legal issues related to inter-country removal and retention of children, recommending addressing the problems of parents and children involved.

• The committee also recommended that the suggested dispute resolution authority may be chaired by a retired High Court Judge, with members being from legal and social sector background and representatives from key ministries.

• It also recommended that the authority may examine the inter-country cases of removal and retention of children through the cultural context, the merit of the case and the best interest of the child.

Besides this, the committee has submitted a draft legislation to the government and was requested to study the draft of the International Child Abduction bill, prepared by the Law Commission.

Background

• With an increased movement of people from all cultures and backgrounds, due to the globalised job market, there is an increase in relationships between individuals of different nationalities and from different cultural backgrounds.

• More than 3 crore Indians live in the foreign countries, having cross-border marital relationships.

• However, when these diverse family units break down, the children become the centre of an international legal battle.

• In a population of over a billion Indians, 25 million are non-resident Indians who by migrating to different jurisdictions have generated a new crop of spousal and family disputes.

What is Inter-parental child abduction?

• In many cases of marital discord or dispute between two individuals of different nationalities, one of the parents returns to the country of origin with the children of the relationship.

• If this is done without the approval of the other parent or permission from a Court, a parent taking children from one country to another may, whether inadvertently or not, be committing child removal or inter parental child abduction.

• In such an eventuality, the child is removed from his/ her environment, from the care of the person with whom the child normally lives

• The removal in this context refers to removal by parents or members of the extended family. It does not include independent removal by strangers.

The Convention on the Civil Aspects of International Child Abduction signed at the Hague on October 25, 1980 with 75 contracting countries defines removal or detention of the children as wrongful stating that it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention.

 

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Child removal provision in India

There is no specific definition of child removal in the Indian law books and India is also not a signatory to the Hague Convention.

Hence, in India, all interpretations of the concept of child removal are based on judicial innovation in precedents of case law decided by Indian courts in disputes between litigating parents of Indian or foreign origin.

Under Indian law, the prime consideration is the welfare of the child, though s 6(a) of the Guardian and Wards Act 1890 says that the custody of a minor who has not attained the age of five shall ordinarily be with the mother.

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