The Justice Rajesh Bindal Committee, assigned to evaluate joining the Hague Convention on international parental child abduction, has instead proposed creating an "Inter-Country Parental Child Removal Disputes Resolution Authority". The proposal expressly rejects some basic principles of the Hague Convention -- especially the concept of leaving "the best interests of the child" to be determined only in a place where that can be done fully and fairly. Nevertheless, it offers a way to deal with these situations where there is currently none but the slowest, most expensive and brutal. It would be tailored to the particular needs of these families. It might work considerably faster than ordinary family law litigation, but I'm not competent to say whether that is even a realistic possibility.
"Composition: The Authority should be headed by a sitting or retired Supreme Court judge, or a Chief Justice or judge of a High Court with at least five years’ experience, and experts with at least twenty years’ experience in the field ... with three appointed members to decide on applications. ... At least one... must be a woman...
Functions: ...The authority would play a role similar to that of “Central Authority” under ... the Hague Convention.
A parent would immediately have to report to this Authority when she arrives in India with her child, in a case of disputed inter-country parental child removal.
Indian Embassies could be tasked with educating persons residing abroad of the Authority’s existence after it is constituted. The myriad functions of the Authority include:
- To discover the whereabouts of children wrongfully removed to, or retained in India, or outside India
- To take appropriate measures to prevent harm to such child or other interested party.
- To secure the voluntary return of such child to the country of its habitual residence or to bring about an amicable resolution in the dispute
- Facilitating immediate access for the parent left behind in the foreign country to the removed child. This is to avoid allegations that the child was tutored by the taking-parent. Such access can be allowed on mutually agreed terms or on an order of the Authority or the Court
- Ensuring the well-being of the child through diplomatic and other channels before allowing the child to be taken to another country. Section 24 of the draft 2018 Bill lists exceptional scenarios where the Authority may refuse the return of the child in the interest of the child’s well-being.
- Facilitating behavioural counselling and other aid to the child/applicants ...
- Maintenance of a database of Indians residing abroad. Indian families abroad will have to notify the authority of any additions/modifications to the family.
Mediation first: It is proposed that mediation would be mandatory at the first instance in all cases. To this end, the Committee has recommended that a list of trained mediators be made available on the Central authority’s site for the disputing parties to choose from.
However, on request or if necessary, the Central authority should facilitate the provision of legal aid to the parties. A list of advocates willing to provide pro bono services should also be listed on the authority’s website.
Best Interests of the Child: This aspect is to form the basis of all the decisions to be made by the Authority. The best interests of the child has been expressly incorporated into the proposed 2018 Bill, as one of the exceptions for refusing the return of a child in these disputes. This is to ensure that the child is not merely treated as a pawn or reduced to a commodity.
... Proceedings before the authority would be kept confidential ... held in-camera as far as possible. ... Foster care is also not encouraged ..."
From: Highlights of the Justice Rajesh Bindal Committee Report on Inter-country Parental Child Removal
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