 Hello everyone and welcome. The Committee on Civil Aspects of International Child Abduction Bill 2016 has invited comments from the public and its various stakeholders. The bill however does not record the voices of the survivors of domestic violence. Today we have senior advocates Indira Jai Singh and lawyer Suranya Ayer discussing the issue, discussing the implications of India signing the Hague Convention on the Civil Aspects of International Child Abduction. Suranya Ayer works for the rights of Indian children taken away by Western child protection agencies. Last month she submitted a report to the Ministry of External Affairs regarding children taken away from U.S. protection authorities, especially regarding young IT professionals even though they have proven to be innocent. Do you agree with the term abduction which is used with respect to parents? This is the most objectionable part of this bill. I wonder if you recently heard the former Chief Justice Justice Kehar say at a meeting of lawyers which was held to felicitate him that Indian law doesn't consider a parent as an abductor. Now the reason for this is very obvious and the Law Commission also said the most objectionable part of the whole Hague Convention is the fact that it looks as a parent as an abductor. And the reason of course is very, very obvious. In fact the reason is because the parents are the natural guardians of the child. So a guardian cannot be ever considered an abductor. What is of relevance is the issue. So therefore the bill is flawed right for that reason that it calls itself the civil aspects of international child abduction bill. That would be my very first objection. And that runs through the bill. So there are many other very objectionable parts of the bill. I'd like to add to this point that where the child should be throughout the bill hinges merely on what's called its habitual residence. And this completely ignores that for a child the place of residence is a technicality. And the reason for this is who is the primary caregiver to whom is it attached. I mean so long as it's with a loved parent it doesn't really care where it is. And I think that it's cruelty to the child to have this cold-blooded bureaucratic decision on habitual residence to decide. I mean when the child is with parents abroad it may be habitually resident there. But that is relevant to its best interest or its happiness or security. So I think she's made a very important relevant point. I'd like to add to that that you know Indian law doesn't even have a definition of habitual residence. And for the first time that definition is being smuggled over here. We don't even know what is the difference between habitual residence and ordinary residence. Now just to give you an example if the mother was an Indian citizen she could argue that I have been ordinarily resident in India. For the purpose of marriage and for a brief period I might have gone abroad and that might make me quote-unquote habitually resident overseas. But actually I was born, brought up in India, married in India and very often even a citizen of India. And yet you give habitual residence as she says priority over. So that brings you to the question what should be the critical priority for deciding whether a child should be sent back or not. I would say never send a child back unless the child personally wants to go back. That's a different issue altogether. But it has to be one principle and one principle alone and that is the best interest and the welfare of the child. And you cannot, you know, it's also about taking away all agency from children. I mean I've seen cases where, I mean, you know, children are clinging on to their mothers and crying and weeping and saying don't separate us from you. And yet, you know, there will be the court order, there will be the bailiff, there will be the policeman who will be coming and literally tearing the child apart from the mother's breast and saying sorry, there's a court order, you have to go. So the issue is what are you going to? She said, Thuranya said please don't base this whole law on habitual residence and the question of course will be base it on what? So this comes to another very important point which is that under section three of the bill even an institution or other body in the foreign country can apply for the return of the child. So this means that we are not just dealing with interparent claims but we are giving orphanages and child protection agencies in foreign countries higher rights of custody to the Indian child and its own family. And this runs fouls of a host of laws which have a whole history of, you know, agitation and lobbying among the women groups in India. After many years we managed to get laws where the divorce cases and other things could be filed where the wife was residence. You didn't have to go by the habitual residence of the husband or where they lived when they were together as a matrimonial couple and the reason for this habitual residence is an irrelevant technicality in these matters. If I may say so the reason was not just the habitual technicality but the reality of the situation that the habitual residence of the woman and the man can be different. And then how do you decide the habitual residence of the child? And the law she was referring to was the domestic violence act where that brings me to the whole question of why do women in the first place pick up their children and run from a foreign jurisdiction back to the country of their origin. The reasons are they face domestic violence at the hands of their husband. I mean after all a woman who gets married to an so-called NRI with so much pomp and show and having spent so much money she would have a vested interest in living with her husband. The point is very often these women are actually thrown out in situations of domestic violence. At that point they pick up their children and they get back to the country. You must understand that these women don't have a green card, they don't have a visa, they're dependent on their husbands for the right of residence in a foreign country. Now if you expect such a woman to leave a child who may be six months old, maybe one year old, maybe two years old it doesn't matter what age but to leave the child behind and go out of the country because she's kicked out that is expecting the impossible. This is the reason why they pick up their children and come to India. I would just like to add to that that there's also another kind of prejudice and power dynamic imbalance at play over here which is that in general an American court in Americans even till today they probably couldn't point India out on the map and there is a pervasive idea that India is a complete dump and it would be much better for a child to be in America than here under any circumstances. So it's not just a question of husband versus wife but you're facing an attitude that is highly prejudicial against allowing Indian parents access to their own children and this is the reason why courts in America are often completely unsympathetic to the Indian parents claiming custody of the child in India only because they see why would we send any child to India. To give you an example, when Indian children are taken in the US by their US child protection agencies and we say that while the parents are fighting the abuse allegations in court and more often than not they are winning them and proving they're innocent let the child come back to its relatives in India. The US system through international social services does a home study of the relatives in India where the questions are what are the air conditioning facilities in the home what is the physical appearance of the relative this is not the way in which the relative is done I can ask you would you say that the attitude is almost racist the attitude is racist I mean what is this other than racism and you know I'm very sorry to say that we often find that that it's the women in these privileged countries who take up the cause against mothers in third world countries I don't see this as a woman friendly approach at all given the statistic that you pointed out in your article so what is very important to point out is you know this law proposed law gives the appearance that it is gender neutral because it says a bill maybe called civil aspects of international child abduction bill 2016 so an argument could be well you know if a woman picks up her child and comes away so could a man pick up the child and go away and then an Indian woman will have access to this bill to get her child back the fact of the matter is statistics worldwide indicate that more than 60% of all cases of so called child abduction have been brought against women so it's obvious that these laws though facially gender neutral actually have a very disparate impact on women and so you come back again and again and again to the same issue why is there no recognition of the phenomenon of domestic violence in this country I ask that question because our civil procedure code already provides for the recognition and enforcement of foreign judgements and foreign laws where they are applicable in India so there was really no reason to have this act at all and what this bill does is that it actually allows claimants this is under section 3 of the law of the bill to claim a right of custody by operation of law so you don't even need a court judgement you can just make a claim that under the laws of my domicile I have the right to the custody and at that point when you go to the high court section 19 of the bill says that the high court can rely on this claim of the law by an individual not even a lawyer without records to the procedures for proof of that law so this means that the bill empowers the high court to send the child to a foreign country based nearly on the applicants claim that he has custody and his court has claimed that this is the law in his country of domicile it makes no sense so what this law actually does is it bypasses India's judicial system as if India didn't have a judiciary at all and it hands over the judicial function to a bureaucrat who all he needs to do is to look whether a foreign court has given an order 99% of the time it's an ex-party order where the woman has never been represented the order has been passed after she left the country she's had no access to legal services or money for payment of fees and this bill actually says that if there is a court order you blindly send the child back now in contrast the Indian Supreme Court has as recently as in the month of September 2017 I would say August taken a decision which is a very very I would say proper and correct and legal decision where they said that I quote we hold that the custody of a minor with the appellant that is the mother being her biological mother will have to be presumed to be lawful whereas this bill says that custody is unlawful if there is a court order even though it's ex-party in her favour secondly the Supreme Court has unambiguously said and this was a case of inter-country marriage it was a case where the woman left UK and came to India with the child it was a case where the child had also taken up citizenship of the UK in spite of all that the court came to the conclusion no we are going to look at what is in the best interest of the child and they came to the conclusion that it was in the best interest of the child to remain with the mother in India in the face of a court order granting an ex-party order to the father they disregarded that they said comity between courts is not the deciding principle the deciding principle is the welfare of the child now in the face of a judgement of this kind I really failed to understand well either the drafts person of this law have not read judgments of the Supreme Court or as you say there is some political agenda so the Indian bill on the international parental abduction is broadly in conformity with the Hague Convention so you think the government has already decided to sign the convention and despite the resistance it's clear to me from the fact that they are holding a consultation which is tomorrow and the day after and it's also clear from the fact that if you read it it says whereas India is a party to the Hague Convention and the entire convention is annexed to this annexure the whole idea is to simultaneously sign the convention and to get this law passed now I think it's unfortunate that the Indian women's groups have for reasons which are too difficult to clarify right now being unable to present their case in a very systematic manner before the government I have been receiving email after email from women who are in situations where they've had to flee with their children since the announcement of this meeting was made and I just hope that they organize themselves either to do a Skype conference for the consultation tomorrow and day after or that they come personally to tell their story their point of view what I do think has happened is that the groups of lawyers representing NRI men who are very well funded have succeeded in lobbying with the government for the signing of this convention I don't think that there has been adequate debate and discussion on it I don't think judgments of the supreme court have been looked into I don't think that the drafters of this bill understand that Indian courts have parents patriot jurisdiction over all children found physically within the territory of India even if it's a foreign child that you find abandoned one of the very first cases which ever went to court it wasn't on the case of child abduction but this old jurisprudence of parents patriot was developed by a foreign country that slave will also be given due process of law and justice because it's the courts which then step into the picture and become the parents of the child so to now turn around and say that the parents patriot jurisdiction of the court will be taken away and it will be some bureaucrats sitting in Shastri Bhavan who will decide whether the child is to be returned I think it's a sorry day for the country and for the judiciary yeah and I would just like to add that forcibly deporting a child based on a claim of habitual residence is basically enslaving the child and I mean I think that we have a lot of things that we need to legislate about and to develop policy on and that I cannot understand why so much energy has gone into setting children away from India it makes no sense to me that the United States which I believe is behind this move has itself not signed up to the Convention on Child Rights the United States is very wise to the need to preserve the amount of solidarity over family affairs and I think that they should show the same understanding to us and to children I would just like to give one example of a case to which I was personally witnessed and this is a case of a woman who fought this kind of a battle and she lost it and let me tell you I mean look at this law this is basically a child policing law it's got a provision in it which says you can take the services of the police and it gives powers to the bureaucrats to summon to get documents to arrest the child okay so this was a very tragic case where she fought a similar battle and she lost it in the Supreme Court there Supreme Court has sometimes been very very heartless with women who have brought their children to India and they pass the sorter you know to my knowledge this woman went underground with her child to avoid the writ of the court and she was never found by anybody so we don't know where she went away with her child we don't know what happened to her this is one example and there was another very tragic example of a woman and this woman was working I do not want to give you the name of the organization it will identify her but she was working with an international organization in the United States of America and her husband came here and he asked her husband filed a petition here for the return of the child to the country and the Indian Supreme Court asked her mother's mother to stand surety for the for the child and impounded the passport of her mother for five long years and her mother could not travel because this woman took a decision I am not going to comply with the order of the court now I can't say whether she was right or wrong in doing it but I am pointing to the tragic consequences of passing orders which are completely heartless and which don't have any basis in reality considering all the aspects that the women do not have support in foreign land and they come back and it can be a case of domestic violence or other tragic incidents and they come the child is removed from the so-called habitual residence what do you think is the next way forward like this issue will I should not sign the convention what should India do in the next step? what has been indicated by the Supreme Court of India we have well established courts in this country our courts will continue to have parents factory a jurisdiction over children found within their jurisdiction and the father and the mother can both work out their rights in a civilized manner thank you for tuning into news click I am Shivangi Mishra from Lawyers Collective