There is a no time limit in the convention for child rights 1989 .But in child acces and custody guidlines even though approved by the Mumbai high court is not being followed at the lower courts . Interim orders for child access and interim custody should be passed within 60 days .Even though laws are there its for the judicary to implement these within a time period of 60 days . Around courts you can see waiting for years for even an interim order .
There are severe restrictions on children in India on their rights to have a relationship with both parents, when they are separated/divorced, especially when laws to protect women & children (such as Domestic Violence Act, 2006 or Sec.498A of Indian Penal Code) are abused or misused by women. The mother is provided custody by default with the child's access to the father not available .
The DV act is biased and violates the constitution of india art 14
Article 14 in The Constitution Of India 1949
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, s*x or place of birth
if section 21 of the DV act is read only a women can get custody as per the act . Even though we have the gaurdians and wards act where it is equal to the s*xes yet the DV act for this particular section was passed wherein there was no need for it .
Following is an overview of the convention.
Preamble: Recognises many of the principles outlines in the Declaration on the Rights of the Child such as family as the best environment for a child to grow, the importance of child protection, best interest of the child, recognising child participation, etc.
Article 1: According to the convention a child is any person how has not reached the age of eighteen unless a different age of maturity is specified in any country's law.
Article2: It is the dude of the state (each country) to uphold the articles in the convention and apply it to all children regardless of the child's or the family's race, colour, s*x, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. The state should protect the child against all forms of discrimination.
Article 3: the state will always act in the best interest of the child while taking into consideration the rights and duties of the guardians. The state shall ensure all institutions government or not adhere to this dictum.
Article 4: The state must make laws, implement policies and programmes and undertake other measures to unsure the rights set out in the convention are fulfilled.
Article 5: The state will keep in mind the rights of the guardians of the child or any other family member or community as in accordance with local customs
Article 6: States recognise that every child has the inherent right to life, and must work to ensure the survival and development of the child.
Article 7: Every child has the right to a name, birth registration and nationality. As far as possible every child has the right to know and be cared for by his/her parents. The state should make laws and provisions especially for stateless children.
Article 8: A child has the right to preserve his/her identity including nationality, name and family relations without unlawful interference.
Article 9: Every child has the right not to be separated from their parents against his/her will unless it is in his/her best interest. Any legal proceeding of separation shall be attended by all involved parties including the parents. The right has the right to maintain contact with his/her parent as long as it's not against his/her best interest. If the state is the cause of separation than the parents, child or any other family member has the right to know the whereabouts of the absent member.
Article 10: Every child and family has the right to enter or leave a state at any time they wish as long as it is in accordance with the laws of each state. If a child is in the different state as the parents the child has the right to maintain contact with his/her parent as long as it's not against his/her best interest
Article 11: The state shall combat child trafficking.
Article 12: The state shall ensure the child's right to form and express views with regard to things that affect him/her in accordance with the maturity and age of the child. A child shall hence we allowed to be heard in any judicial proceeding concerning the child directly or indirectly through a representative
Article 13: Children have a right to free expression and this includes right to information and ideas of all kinds and in any medium. This is only restricted by the violation of others rights or a threat to national security.
Article 14: Every child has the right to freedom of thought, conscience and religion. The state must respect the parents' right to guide the child in this regard. Freedom to manifest ones religion is only restricted if the act is harmful to others.
Article 15: Every child has the right to freedom of association and peaceful assembly unless the act is illegal or harmful to others.
Article 16: Children have the right to privacy and the right to be protected by law against such interference of attacks
Article 17: The state shall ensure that a child has access to national and international information that is aimed at the child's well being. For example they may encourage mass media to produce programmes that are informational for children and encourage the production of children's books and magazines.
Article 18: The state shall ensure the recognition of responsibility of both parents to care for a child as long as it is in her/his best interest. The state shall give appropriate guidance and assistance to parents to uphold the rights of the child. Children of working parents have the right to access child-care services.
Article 19: The state shall take all types of actions to protect the child from any form of abuse, exploitation or neglect. The state shall create system to ensure the child receives all needed support in form of prevention, protection and rehabilitation.
Article 20: Children have the right to protection by the state when they temporarily or permanently deprived of their family environment or if the environment has proven to be harmful for them. The state shall find alternate care for the child such as foster care, adoption or kafalah of Islamic law. The cultural, linguistic and religious background of the child should be continued as far as possible.
Article 21: All states shall permit and recognise the process of adoption. Adoption will be carried out only by a competent authority who will sure the adoption is permissible. Inter-country adoption will be permitted as an alter form of care only if that care cannot be provided for in the child's own country. The state must ensure that inter-country adoption does not result in financial gain, and that both national and international adoption is held to the same safeguards and standards.
Article 22: Children seeking refugee status and recognised as refuges with or without their parents shall be granted such a status by the state and have the same rights as all children in accordance with this convention and any other human rights treaty. The state shall with the assistance of other international bodies try and reunite the child with his family or provide the child with the appropriate care.
Article 23: States recognise that children with disabilities (mental or physical) have the right to a life with dignity and all other rights of this convention. The State also recognises the need to provide children with disabilities with special care, family assistance, free education, health, training, etc in accordance with the family's financial situation and aim for the child's social integration. The state shall also take measure to prevent the disabilities in children.
Article 24: Every child has the right to access health services and attain the highest degree of health. To do so the state shall reduce the infant mortality rate, ensure medical assistance, provide prenatal and post natal care of mothers and child, combat diseases and malnutrition, create awareness of correct health practises, and development preventive measure to protect children from possible risks. The state shall also abolish all traditional practises detrimental to a child's health.
Article 25: All treatments administered to children are subject to periodic review.
Article 26: Every child has the right to social security and social insurance. Benefits under state laws should take into account the economic and social needs of the families.
Article 27: Every child has the right to a standard of living required for his/her development. Parents have the duty to ensure this standard to the best of their ability. The state shall assist parents or others responsible for the child who require the help, and secure the maintenance of the child from those financially responsible within the state or abroad.
Article 28: All children have the right to education. The state shall endeavour to provide free primary education, encourage different forms of secondary education, make higher forms of education accessible, make vocational information available and encourage school retention and prevent drop outs. School discipline should not be in violation of child rights.
Article 29: Child education should be geared towards the complete development of the child, in accordance with the child's cultural identity and human rights treaties, and to prepare the child for responsible life in society. It should not be detrimental to the environment. People may be allowed to establish educational institutes in accordance with these standards.
Article 30: Children of minority communities have the right to practise and adopt the culture, languages and traditions of their community.
Article 31: Every child has the right to leisure, play and participation in cultural events. The state should encourage child participation in such events.
Article 32: Children have the right to be protected from economic exportation or any work that is harmful to their physical and mental development or considered hazardous or dangerous work. The state must constitute a day that dictates minimum age of employment, conditions of employment and hours of employment with regards to children.
Article 33: The state should take measure to protect children from substance abuse and prevent the use of children in the illegal trafficking of such substances.
Article 34: Every child has the right to be protected from s*xual exploitation and s*xual abuse. The state must hence prevent the coercion and prostitution of children for such activities as well as safeguard children from p*rnographic performances and materials.
Article 35: States shall take measure to prevent the abduction or sale of children for any purpose.
Article 36: The state shall protect children against any other form of exploitation.
Article 37: The state shall ensure that no child is subject to torture or any other cruel inhuman treatment, no child is deprived of his liberty unlawfully, and a child deprived of his liberty is entitled to proper care and humane circumstances, and be provided with legal consult if necessary.
Article 38: The state ensures and respects the rules of humanitarian law during times of conflict. The state should also ensure that children below 15 do no participate in the hostilities, and refrain from recruiting them in armed forces.
Article 39: The state should ensure the recovery, rehabilitation and reintegration of child victims of neglect, exploitation, or abuse, etc.
Article 40: The state shall recognise the right of every child who has committed a crime under the law to a proper care and reintegration into society. No child shall be accused or penalised for an act which is not a recognised crime. A child who has been accused of a crime are presumed innocent, should be informed of the charges against him/her, have the juvenile justice proceeding immediately without delay, not be compelled to give testimony or admit guilt and the right to privacy of all proceedings. States should endeavour to establish laws specifically catered to the needs of children who have been accused or found guilty of any criminal activity and establish a minimum age of guilt.
Article 41: The articles of this convention will not take priority over any laws national or intentional that better safeguard the rights of a child.
Articles 42-54: outline the establishment, composition and responsibilities of theCommittee on the Rights of the Child.
