Posts
Jeremy
D. Morley
The debate swirls in India as to whether or not that
country should accede to the Hague Abduction Convention. When I was in India in September it appeared
that the consensus of leading members of the legal community there was that
India should, and would, sign the treaty, and would thereby join most of the
world’s leading countries in that regard. However, since that time there has
been a strong backlash which has delayed -- and perhaps entirely derailed -- that
process.
The stated concern of those who wish to block India’s
accession is that Indian women who are in bad and perhaps abusive foreign
marriages should “naturally” be allowed to take their children “to safety” back
home to India. See for example the article in today’s Hindustan Times entitled,
“It
would be disastrous for India to sign the Hague convention on child abduction.”
Such arguments overlook the fact that protection for
parents and children against abuse is generally available in the countries in
which they actually reside; that allegations of abuse may be exaggerated or
invented; that the courts in the countries of the children’s residency have the
jurisdiction to permit the relocation of the children to India if that is in
the best interests of the children; that fathers as well as mothers have a fundamental
right to parent their children; and that it is a fundamental human right of
children to have both parents in their lives.
The concerns that are now being expressed in India parallel
those that were raised in Japan before that country ultimately signed the
treaty, effective April 2014. However, it is to be hoped that if India chooses
to sign the Convention it will do so without unnecessarily diluting its
provisions as Japan did.
A compromise was ultimately reached in Japan whereby
the Enabling Act pursuant to which the Convention was brought into Japanese
domestic law provided for a significant expansion of one of the exceptions to
the treaty. Specifically, Article 28 of Japan’s Enabling Act converts the
so-called “grave risk” discretionary exception into a full and complete defense
and it substantially expands the grounds of the defense. For example, Japanese
courts may consider such factors as whether there are “circumstances that make
it difficult for the petitioner or the respondent to provide care for the child
in the state of habitual residence.” In my opinion, the expansion of what was
intended to be an extremely limited and narrow discretionary exception into a
broad defense that in many ways requires a determination of the child “best
interests,” violates the provisions of the treaty.
An extremely beneficial consequence of Japan’s
accession to the treaty is that the number of reported abductions of children
to Japan has significantly declined. On the other hand, one of the adverse and
unintended consequences of the expanded exception into an extremely broad
defense is that it necessarily discourages courts in the United States (or
other country of habitual residence) from authorizing a Japanese parent to take
children to Japan for a visit children’s visits to Japan, in the face of
objections by a potentially left-behind parent, because of concern that it will
be all too easy for the taking parent to retain the children in Japan. The same
consequence will surely result if India follows a similar path.
Meanwhile the debate in India continues. It is
well-recognized that India is a safe haven for international child abduction.
Unfortunately it appears that that will continue to be the case for the
foreseeable future.
