Assessment of English International Private Law Governing the Care of Children and Child Abduction - Essay Example

Anand P.S.Brahmanand ID 5283 Order # 133981 16 September 2006 Critical assessment of English international private law governing the care of children and child abduction Introduction: Children constitute the most important section of our society and providing them basic social and physical amenities is our fundamental duty. It is stated that "today's children are tomorrow's citizens". However they are the most neglected section as far as the positive response of society is concerned. The remarkable percentage of world population is shared by youth and children. It is estimated that the world population of youth and children (below the age of 25 years) accounts 3 billion (FN1). It varies from country to country. It is unfortunate to find several children are not taken care of well at both home and society. The situation of orphans, physically and mentally handicapped children is really alarming. They are also subjected to child labor, domestic violence and child trafficking. The improper care of children may result in dissatisfaction resulting in anger and militancy. Recent example of rising militancy and taking over the law and order in to the hands of students in colleges of India is believed to be originated from childhood problems (FN2). As they are not aware of their own rights, it is the responsibility of so called grown up adult population to protect their basic rights. The utmost care taken at the childhood will motivate the children to a greater extent. It is evident from the fact that motivation of students comes from encouragement in form of academic grades (FN3), the similar thing will happen if children are taken care in right perspective. Several organizations have been dedicating themselves for better care of children. To list a few, UNICEF(United Nations Children Emergency Fund), JCCC-SL (Jonathan's child care center Sierra Leone). African child association etc (FN4). What is English International Private law English International Private law has been instrumental in protecting the basic interests of children and providing solution to child abduction. This has entered in to force on 15th July 1955 with statute of Hague conference on private international law (FN5). The main purpose of the Hague conference was to facilitate the progressive unification of the rules of the rules of English international private law. Otherwise, there was a enough scope of confusion regarding interpretation of private laws of individual states. Heartening to note that the English international private law certainly established standard norms and commonly agreeable principles in solving the issues related to human rights and children protection. Provisions under International Private law for child care and child abduction: Two conventions of Hague extraordinarily contributed for the benefit of children. They are as follows: 1. Convention on the civil aspects of International child abduction 2. Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children. The first one addresses the issues relating to secured return of children subjected to abduction. It was concluded on 25th October 1980 and entered in to force on 1st December 1983. Its contribution in protecting the interests of children in issues relating to their custody is enormous. Another important objective of this convention is to protect or safeguard the children at global level from the ill effects of their wrongful removal or retention and for setting the norms for ensuring their immediate return to the country of their habitual residence. Assessment of Convention on the civil aspects of International child abduction : This convention ensures that the rights of custody and of access under the law of contracting state (FN6) are effectively respected in the other contracting sates (article 1 of the convention). This also directs the respective member states to implement suitable measures to secure with their territories the implementation of the objects of the convention regarding childcare (article 2 of the convention). The clarification was given in Article 3 of the convention regarding the two cases where the removal or the retention of a child is considered to be wrongful i.e. (a) It is in violation of the rights of custody attributed to a person, an organization or any body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention and (b) Whether the person or institute either jointly or alone actually exercised those rights for protection or care of the children or not. The age of the child must be below 16 years for the consideration of this convention (Article 4 of the convention). It also defines the rights of custody and rights of access to avoid any misinterpretation of genuine cases. According to the Article 5 of the convention, the rights relating to the care of the child and determining the child's place of residence are included in "rights of custody". Similarly, the right to take a child for a limited period of time to a place other than the child's habitual residence is defined under "rights of access". It was also directed that the respective states shall designate a central authority for implementation of measures relating to the discovery and whereabouts of a child who has been wrongfully removed or retained. It also aids in preventing further harm to the child subjected to abduction, in securing voluntary return of child and describing social background of the child and initiating or facilitating the institution of judicial or administrative proceedings with an objective of returning the child and provision of legal aid and advice. Even after the return of the child, the central authority has power to effectively exercise the rights of access for better treatment of children. One can apply in original language and a copy of translation to official language of contracting state is to be given and the cost will be borne by the central authority. In this way this convention plays significant role in providing justice to the economically poorer sections of the society in protecting the children from abduction. This convention is open for signature by the states which were members of Hague conference on private international law at the time of its fourteenth session. Any other state may accede to the convention (Article 38 of the convention) with an instrument o accession to be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands and it will come in to force on 1st day of the third calendar month after depositing the instrument of accession. To avoid conflict of laws in case of contracting sates with more than one territorial units, the concerned state should declare whether all the territorial units are covered or only specified units are covered under agreement. This convention will be in force for five years and it can be renewed every five years. Assessment of Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children : This convention was concluded on 19th October 1996 and entered in to force on 1st January 2002 (FN7). Its main objective lies in the necessity for improving the protection of children in global situations. It also aids in avoiding the conflicts between their legal systems in view of jurisdiction, applicable law, recognition and enforcement of measures for protection of children. It also sought for revision of convention of 5th October 1961 relating to the law applicable to protection of minors and for establishing common provisions of implementation of United Nations Convention on the rights of the child of 20th November 1989. The determination of the states whose authorities have jurisdiction to implement measures for protection of children and deciding the concerned law to be enforced for parental responsibility are the important objectives of this convention (Article 1 of the convention). This convention is applicable to child below 18 years of age. This is applicable to restriction of parental responsibility, rights of guardian of child to decide child's place of residence and to take child to other place for a limited period and placement of child in foster family or institutional care (Article 3). However it is not applicable to (a) name and names of child, (b) decision on adoption, (c) the establishment or contesting of a parent - child relationship, (d) emancipation, (e) maintenance obligation, (f) succession, (g) decision on immigration (h) social security etc. (Article 4 of the convention). The jurisdiction of Judicial and administrative authorities present in child's place of residence will apply (Article 5 of the convention). Conflict of laws : The judicial authority of different states can have exchange of thoughts in deciding the jurisdiction with the final aim of child protection. Chapter II of the convention describes the jurisdiction to which this is applicable (Articles 5 to 14 of the convention). The decision of judicial authority should be accepted by the operation of law in concerned contracting state. It may refuse the recognition of judicial authority in case of infringement to parental responsibility. It is other wise a clear case of conflict of laws. In case of urgency and protection of child interest, the operation of law may accept the jurisdiction of judicial authority of contracting state. Enforcement takes place in accordance with the basic law of the contracting state to the extent provided by such law but with final aim of best interests of child. Central authority may be designated by contracting state to discharge the duties. Territorial units have to be defined properly and ideal exchange of views and cooperation among central authorities of different territorial units is desirable under this convention for avoiding the conflict of laws in taking care of children at global level. Conclusion : The English international private law in the form of the conventions on protection of children and child abduction provides vital role in settling the issues related to children. Several countries have become signatories of these conventions for ideal safeguarding of the children's interests. However it is the urgent need for all the other countries to join this sacred global operation and to facilitate smooth mechanism to avoid or reduce the conflict of laws relating to children's issues. References: FN1 : Population Reference Bureau (PRB) 2006. Http://www.prb.org. FN2 : Ramesh Vinayak and Neeraj Mishra 2006. Rising militancy. India Today (published from New Delhi, India) dated 18th September 2006 : 22-24. FN3 : John Siebert, Kery Litzenberg, Richard Gallegher, Christian Wilson, Frank Dooley and Al Wysock. 2006. Factors associated with students academic motivation in agricultural economics classes. American Journal of Agricultural Economics (Published from United States of America). 88 (3) : 750-752. FN4 : www.crin.org. FN5 : Statute of the Hague conference on private international law. Page 1-4. www.hcch.net. FN6 : Convention on the civil aspects of international child abduction. Page 1-12. http://hcch.e-vision.nl. FN7 : Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children. Page 1-18. http://hcch.e-vision.nl. Read More