8 November 2017

The Hague Convention in India?  What a pity

By Marianne Haslev Skånland
Professor Emeritus
Oslo, Norway

There have been several interesting articles in papers and on websites in India about the question of whether India should sign the Hague convention relating to international disputes over where children should live (usually automatically called a problem of 'child abduction').

Dr. Nandita Chaudhary has seen the depth of the problems and the danger of easy, mechanical rules. Part 1,
International Interventions in Matters Relating to Childrenin her article Protecting Indian Childhood published on SaveYourChildren in an extended version on 25 September 2017, takes up the Hague Convention:
"Last week, the Government invited comments from the public on whether India should accede to the Hague Convention on Civil Aspects of International Child Abduction (Hague Convention). This treaty would require us to forcibly deport children from their families to any foreign “person”, “institution” or “other body” claiming custodial rights to the child, without consideration, except on very restricted grounds, of whether this would be appropriate for the welfare, security or happiness of the child.    
     In response, there has been a volley of protests from the public, including parents who have lost their children in custodial disputes in America, and are denied even tourist visas to visit them."

Apparently, the United States in particular is putting pressure on India: official USA is strongly of the opinion that children who have been living in the USA and whose parents split up, should almost automatically stay in the USA with the parent there, if the other parents goes to live in the other country. The website of NDTV has brought several articles about the question, among them Next US Envoy Concerned Over India Not Signing Hague Convention, 5 October 2017.

It seems in this article that US Senator Mr Portman and diplomat Mr Juster are incredibly one-sided, although it is difficult to believe that they are quite as ingenuous as they appear to be.

Senator Portman talks of 
"an expedited mechanism to .... help return abducted kids to their rightful homes." Surely the USA is not the one and only rightful place for everyone to live, regardless of circumstances?

Mr Portman goes further: He apparently talks of 
"children being forced to return to the country by a parent in cases of marital discord." Being forced? How does he know? A child has two roots. If one parent comes from another country and is going to return there, then surely it is not certain that a child's only happiness lies in staying on in America, whether it was born there or not, whether it holds citizenship there or not?

The very best thing for a child is to grow up with a harmonious and close relationship to both parents and to the families on both sides. It is a tragedy when one parent without just cause hinders contact with the other parent. Living far apart nevertheless happens, and sometimes seems the only way. To proclaim that the moving parent is self-evidently to be blamed and that the child must stay put no matter what, has little to do with justice or children's best interest.

Mr Portman and Mr Juster seem to brush off, as irrelevant or sub-standard, court cases held in India about custody and place of residence: 
"Notably, almost all of these cases are a result of marital dispute in which one of the parents [has] got permission from courts in India to have custody of the children." Got permission? A kind of school-teacher's permission to leave class? Are the alternative court cases in the USA always cast-iron examples of justice, to which nobody can have objections?

Heartbreaking as such custody disagreements between parents are, they are also 
difficult, and it is not, in the nature of things, possible to decide them to the equal satisfaction of both parents as well as the children. The Hague Convention will rarely help come to a balanced decision, quite the contrary.


The Hague Convention on international child abduction also has another dark side to it, even more detrimental to children, and mentioned by Dr. Chaudhary: It allows, even promotes, custody demands from others, namely from the impersonal child protection services (CPS) of a state. In
On the Hague convention regarding international child abduction: Custody demands from other sources than parents I have given examples of how the CPS (Barnevernet) in Norway act internationally in order to obtain control over escaped children and isolate them from their entire family, and how the Hague Convention gives them greater power to do so.

Suranya Aiyar takes up some further implications: how the CPS ideology ties in with political trends and how the CPS make use of conflicts between parents to gain power for itself over children:
The threat posed by global child-rights conventions, Sunday Guardian, 21 October 2017.

It's really bad business. So, are American CPS units and courts certain to be lily-white protectors of a child's relationship to both/all its loved ones – are they so much better than our notorious Barnevernet in Norway? Hardly.

Since senator Portman says 
almost all the cases are custody disputes, then what are the rest – are there CPS cases among them?

A concrete example of a procedure from New Jersey was described by Suranya Aiyar back in February 2013:
Family must come first:
"The US questionnaire for evaluating relatives requesting custody of children removed from their parents is revealing of what their child protection system thinks relevant in such cases. The questionnaire asks for descriptions of the relative’s “physical appearance” and “salient personality traits”. It requires relatives to state their annual income and level of education. It asks whether household amenities include air-conditioning. There are fourteen pages of questions in this vein. 
     The worst thing about this inspection on the Sahas is not the type of questions asked but the fact that there has to be an investigation at all. It should be enough to decide the matter that these are Indrashish’s grandparents and they want him back."


Fundamentally, the CPS in most Western countries share an ideology, tragically implicit in their thinking about children's rights and best interest. It is visible in the UN Convention on the Rights of the Child, worked out under strong influence of people schooled in the same way of thinking. It holds a child to be an isolated individual whose best interest lies in the material quality of its environment and the advantages it can draw from it. The ideology is very narrow in its ideas of material or concrete advantages too. For example, I can imagine that if an American-Indian child is to live in America without its Indian parent, it is unlikely to obtain such an advantage as the mastery of another language, and may then lose all communication with Indian relatives if their language is not English. If the child grows up in India, English is, on the other hand, surely very easy to keep up, in addition to perhaps acquiring Hindi, Bengali, Tamil, Punjabi or whatever for free. And multi-lingualism is an asset in itself.

The American senator and diplomat have their ideas about ideal custody of children and the USA being the perfect place. Norwegians are at least equally bigoted: Norway is the best place in the world, people are happier here than anywhere else, the advantages of growing up and living in Norway are considered to outweigh any "trivial" needs. The child protection agencies of Western countries interfere in family life, often tearing the family apart, and they interfere in various ways in disputes between parents also. They tend to take little account of the overriding importance of a child's deep, emotional bonds to its parents and family. Even having to part from its mates in kindergarten or at school, or not being able to "terminate" its relationship to them in a "proper" way, are "problems" portrayed by these declared child experts of the CPS as greater disasters than parting from its family would be. 

That one of the two closest family bonds is sometimes broken because the parents split up and become enemies is certainly tragic for the child, but the hope that a formal procedure springing from the Hague Convention solves the problems, in the hands of officials bent on formal rights, is in vain. Don't go there! Once in, it is probably very difficult to get its negative sides out.