Report No. 263

Chapter I
Preliminary

1. (1) This Bill may be called the Civil Aspects of International Child Abduction Bill, 2016

(2) It extends to the whole of India (except Jammu and Kashmir)

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

Provided that different dates may be appointed for different provisions of this Act and any reference in such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

2. In this Act, unless the context otherwise requires,-

(a) "Applicant" means any person who, pursuant to the Convention, files an application with the Central Authority or a Central Authority of any other party to the Convention for the return of a child alleged to have been wrongfully removed or retained or for arrangements for organizing or securing the effective exercise of rights of access pursuant to the Convention;

(b) "Central Authority" means the Central Authority established under Section 4;

(c) "Contracting State" means a state signatory to the Hague Convention on the Civil Aspects of International Child Abduction;

(d) "Convention" means the Hague Convention on the Civil Aspects of International Child Abduction which was signed at the Hague on 25th October, 1980, as set out in the First Schedule;

(e) "Chairperson" means the Chairperson of the Central Authority;

(f) "Habitual residence" of a child is the place where the child resided with both parents; or, if the parents are living separately and apart, with one parent under a separation agreement or with the implied consent of the other parent or under a court order; or with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

(g) "Member" means a member of the Central Authority and includes the Chairperson, if any;

(h) "prescribed" means prescribed by rules made under this Act;

(i) "Right of access" in relation to a child includes the right to take a child for a limited period of time to a place other than the child's habitual residence;

(j) "Right of custody" in relation to a child includes rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.

3. (1) For the purposes of this Act, the removal to or the retention in India of a child is to be considered wrongful where -

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the Contracting State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, by a person, an institution or any other body, or would have been so exercised, but for the removal or retention.

(2) The rights of custody mentioned in Sub-section (1)above, may arise in particular:

(a) by operation of law;

(b) by reason of judicial or administrative decision; or

(c) by reason of an agreement having legal effect under the law of the Contracting State in which the child was habitually resident immediately before the removal or retention.