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Report No. 218

Need to Accede to The Hague Convention on The Civil Aspects of International Child Abduction (1980)

I. Introduction

1.1 Owing to the advent of technology with the establishment of easier and economic forms of travel and communication, national boundaries have increasingly become irrelevant for the purposes of cultural exchanges.1

1. Dr. Justice AR. Lakshamanan, International Child Abduction - Parental Removal, (2008) 48 IJIL 427.

1.2 The globe has shrinked to an extent that cultural taboos do not hold back anybody to go in search of greater achievements. This brings in a package of both desirable and undesirable effects. Every employment opportunity especially the ones established under the modern technological umbrella comes with a lot of responsibility and financial benefits with the aftereffect being increasing independence of individuals and ego inflations, which paves the way for undesirable familial problems.1

1.3 Earlier spousal and interparental conflict were simply equated with divorce, or with various measures of marital dissatisfaction, hostile attitudes, and physical aggression. This failure to distinguish among types of conflict has confounded the debate about the extent to which different kinds of divorce conflict are normal and functional. Divorce conflict has at least three important dimensions which should be considered when assessing incidence and its effects on children.

First, conflict has a domain dimension, which can refer to disagreements over a series of divorce issues such as financial support, property, division, custody, and access to the children, or to values and methods of child-rearing. Second, conflict has a tactics dimension, which can refer to the manner in which divorcing couples informally try to resolve disagreements or it can refer to ways in which divorce disputes are formally resolved by the use of attorney negotiation, mediation, litigation, or arbitration by a judge.

Third, conflict has an attitudinal dimension, referring to the degree of negative emotional feeling or hostility directed by divorcing parties towards each other, which may be covertly or overtly expressed.1

1.4 Statistics show that the number of divorce cases and custody disputes has increased ever since the advent of globalization and technological development leading to a very busy life-style and work culture. The international parental child abduction/child removal finds its root here.1

1.5 International parental child abduction or removal can be defined as the removal of a child by one parent from one country to another without the approval of the other parent. Child removal, in this context, encompasses an interference with the parental rights or right to contact with the removed child. These acts by a parent when brought before a court of law have in the past created considerable amount of confusion specifically in the area of competence of courts with regard to jurisdictional aspects.1

1. Dr. Justice AR. Lakshamanan, International Child Abduction - Parental Removal, (2008) 48 IJIL 427.

1.6 The international community acted to solve this crisis by adopting on October 25, 1980 an International Convention on the Civil Aspects of International Child Abduction which entered into force on December 1, 1983. This Convention seeks to protect children from harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The main objects of the Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.1

1.7 Many States of the world (81) have become signatory to this Convention. Some States like Australia have brought about amendments in their family law legislations to make the Hague Convention operative in their nation. India, however, is not a signatory to this Convention.2

1. The Hague Convention on the Civil Aspects of International Child Abduction (1980), Article 1.

2. Dr. Justice AR. Lakshamanan, International Child Abduction - Penal Removal, (2008) 45 IJIL 427.



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