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.