By Lavanya Regunathan Fischer
While demonetisation occupied the nation certain changes were made to the passport rules, which though less visible, also have far reaching consequences. The Ministry of External Affairs has recently recommended removing the mandatory requirement of having the father’s name on the passport. At around the same time the Italian constitutional court ruled that mandatorily requiring the child to carry the surname of the father is illegal. These rules and orders are attempts at making laws signifying familial relationships more equitable.
The reason for such rules is an effort to confront the challenge of making the application of law coherent from the view of various competing rights; the right to travel, the rights of children and parents as well as the rights to equality. It is an odd area to bump up against the rights to equality and non-discrimination but bump one surely does. This is because the names of parents and guardians on the passports have helped law enforcement and immigration officials identify whether the child is travelling with her parent or legal guardian. This method of identifying the adult travelling with the child is used increasingly by immigration at entry points, as the easiest and from everyone’s point of view while undertaking international travel, the fastest, method to determine relationship.Using a passport to check occurs even in countries where legislation exists allowing men and women to keep the name of their choice, heirs, their partners or even a third name after marriage.
The name of a child and the legal connotations of this name have meant that in the last decade parents have had to put up with increasingly invasive and regressive questioning by immigration authorities around the world.Asimmigration officials at airports check not only the provenance of the passport but also the relationships with children accompanying the adult in trying to close loopholes and tightening child abduction/ child trafficking regulations to get in line with the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Inter-country Adoption (Hague Adoption Convention) and the older 1980 Hague Convention on the Civil Aspects of International Child Abduction.Prevention of such crimes and wrong actions are laudable goals and should be followed through with extreme conscientiousness. But in practice, one-sided and thoughtless enforcement has meant that most countries have made it very restrictive for parents, travelling legitimately with young children, to easily move across borders. This is especially true in the case of mothers.This problem is particularly acute in mixed race or adopted children when the child may or may not resemble the parent with whom she is travelling. Countries around the world are slowly realising that not only does this problem exist but is steadily increasing.
The patina of age adds another layer of complexity to the enforcement of these conventions. In terms of their enforcement or ratification, the drafting of new law, to conform to the relatively older conventions, has to take extreme precaution against imposing lifestyle choices that may not necessarily be current. In addition, they do not adequately safeguard against threats to one or more of the members of the family. Domestic violence for example is not adequately provided for in these conventions even though subsequent amendments to domesticin-country legislation orby courts via judgements have tried to cover this gap. So when countries now try to conform thirty or forty years later to these conventions they should take utmost care that their legislation reflects both the original convention as well as the evolution by law and case precedent felt necessary by countries that have already implemented conforming legislation over the last decades.
There is no real data to show that asking a travelling parent to show their relationship with the child has stopped either child trafficking or parental abduction, but nevertheless immigration authorities are increasingly doing so. Now countries even have travel advisories instructing parents to carry other documentation to prove this relation. The Indian passport has always had provision for the names of the parents and this has been a blessing in disguise in terms of identifying and proving relation. While it is important that no name be mandatorily included, the page giving either parents name should not be removed completely as it has helped go a long way in proving evidence of relationship.South African guidelines accept this as proof of relationship. This way Indian parents are exempted from having to carry endorsed birth certificates etc. while travelling with their children. This is in contrast to passports from other jurisdictions. Most countries do not have space for the parents’ names in the passport documents. The South African travel advisory asks parents who are travelling with their children to carry either the children’s birth certificates and permission from the parent not travelling with them. Similarly Australian passports also require additional documents proving parental relation.In Kenya,there is a detailed advisory asking both parents to be present for visa interviews especially for minors.The US required birth certificates with the full names of the parents as proof of citizenship as late as 2011. Though citizenship worries were behind this requirement it helps proving the parent child relation as well.
In the United Kingdom there is a movement to ensure that the passports carry the names of both parents. In the absence of some such provision often, at the borders, immigration staff helpfully tell women to assume the name of the father as a way to avoid detailed questioning and lengthy checks to ensure they are travelling legally with their child. Of course, this advice does not take into account the rising numbers of couples who choose to cohabit without marriage, gay and civil partnerships.
The reason why parents’ names are not included in the passport is that the passport is a travel document and does not exist to prove parental relationships. But presumably the same birth certificate that proves the relationship at the border could be checked at the time of application for a passport. The Indian rules now changes this and do not require the birth certificate at the time of issuance of passports. If there is noevidence of abandonment at the time of issuing the passport, the worry is that theweaker partner or parent may be denied this proof of link with the child resulting in further worries for him /her at the time of travel even if for the child’s own safety and wellbeing. It is still women who are primarily caught at the wrong end of these laws and given that theWHO reports 35% of women are still facing violent situations within their homes and the UNICEF counts 275 million children as being caught up in these situations this situation is not going to change overnight or simply disappear.
This travel document being important as proof of relationship is true for the passport process in most countries on the European continent as well, so it not just countries grappling with the registration so births, deaths and marriages that will come up against this issue.The UK campaign reports that more than 600,000 parents are stopped at immigration due to this lack of documentation.
The right of a parent has to be secured, in not saddling them with the burden of disclosing the name of the spouse who has abandoned their child. But the rights of both spouses need to be protected and unless compelling reason exists they should not be lightly tampered with. At some time proof of a relationship or a lack of one due to abandonment will have to be shown. These laws have to be read and implemented in consonance with each other, as it is clear that haphazard enforcement of legitimate and necessary laws actually detrimentally affect other equally valid legal rights. It is in this context that we must not hurry to do away with all name or proof requirements. Again why should there be a letter confirming adoption of a child, there are various provisions to register such adoptions, why circumvent them? Why increase the amount of legislation and paperwork?How does this affect the right to privacy of a family? If parental relations are problematic in this complicated universe other methods of identity have to be found. A discerning senior lawyer asked whether the name of a deceased parent is more valuable than another marker of identity, perhaps region or village. Given burgeoning town populations this method of identification may cause its own set of problems but complicated realities unfortunately require more nuanced solutions and not band aids that plug one gap only to cause the chink of inequity to appear elsewhere. A legitimate first step to ending endless paperwork and explanation of relations is a more coherent policy trying to reflect accurately the importance of relationships (and perhaps even identity) in this increasingly fragmented world.
Lavanya is a Delhi based lawyer and an author