Updated: May 3
This article has been authored by Shefali Agarwal & Anubhav Nandi, fifth year students at National Law University Odisha.
Introduction When we discuss child abduction, we instinctively connect it with “kidnapping,” which has different set of laws dealing with it. When International Law finds its way into an issue like child abduction, the situation becomes tricky and complex. The problem of Child Abduction arises between spouses having a strenuous relationship which is on the verge of breakdown. In most of the cases, the child is often taken to a different country by their mother or father and the clash between them for the child’s custody becomes a problematic affair which affects the child and the parents, the former more than the latter. To deal with such issues in a better manner, the Hague Convention on the Civil Aspects of International Child Abduction was signed on October 25, 1980, which came into effect on December 1, 1983 having 94 signing parties which do not include India. The Convention ensures speedy return of the abducted child to the place of habitual residence. It applies to a child until the age of 16 years habitually resident in Contracting States and only when the habitual residence and the State the child has been moved to are signatories of the Convention. Amidst all the pressure faced by India, it still remains a non-signatory of the Convention and the reasons mostly dwell on the point of women being abused or being stuck in a bad marriage and losing control of situations mandating the return of child. India’s slow judicial system favors the abductor to create facts and in the meantime the child gets adapted to the Indian life which becomes another reason to deny the return of the child. The Convention just concentrates on the return of the child and is more child welfare centric than being parent centric. It does not devolve into marital status of the child’s parents, unlike the way it has been handled in India. Wrongful removal (abduction) The elements given below attract the application of the Convention: · Actual exercise of those rights before removal of the child · Removal without consent and · Subsequent breach of custody rights. If the above elements have been established and less than one year has passed between the retention and commencement of the proceedings, the authority where the proceeding has commenced shall immediately order the return of the child. If one year has lapsed the return order should consider if the child is now established in its new location as per Article 12. Habitual residence Though it has not been defined in the Convention, The Civil Aspects of International Child Abduction Bill, 2016 did give certain elements in situations where the child lived with both or one parent or another individual. “Habitual residence” is a pretty straightforward question but the most important for jurisdictional purposes. Ascertaining habitual residence is significant to stop the abducting parent to intentionally create an artificial jurisdictional link which might lead to forum shopping. India’s diaspora India is not a signatory to the Convention and it does not have a law or a judicial forum to treat parental abduction as an offence or to register a complaint, therefore it becomes a battle of custody. In cases where one parent restricts the other from having access to the child, or takes away the child to another country, India becomes a safe place for the parent taking advantage of the absence of law. The 218th Law Commission Report of 2009 had suggested that India should accede to the Convention keeping in mind the foreign perspectives. There is a concern among the foreign judges for allowing children to travel or visit India since the non-signatory nature does not assure the swift return to the habitual resident country. “The removal of a child by one parent from one country to another without the approval of the other parent…Child removal, in this context, encompasses an interference with the parental rights or right to contact with the removed child.” The abovementioned 2016 Bill was India’s step towards integrating the principles of the Convention where in, the Bill upheld certain fundamentals including custody, and right of access etc with child abduction in the international perspective. Problems in the Bill which could have been resolved but were not taken care of:[i] • Application to the children taken away or from India without discrimination could be clarified. • Qualifications, Appointment etc of the members of the Central Authority could have been clarified. • Without having a separate bench for family law, the need for specialists’ judges would be required to deal with the Convention’s proceedings. The Protection of Children (Inter-Country Removal and Retention) Bill, 2016 This Bill clarified that states need to have effective respect to other states and should assist, encourage, and cooperate in return of the child. “Best interest of the child”, “habitual residence”, “rights of custody” and role of central authority with a provision of appeal were considered and revised. The most notable feature is that, “domestic violence as per the Protection of Women from Domestic Violence Act, 2005” has been recognized as an exception to the return of a child and a period of 60 days has been fixed for making arrangements to return the child. When it comes to the Indian Judiciary, The Guardians and Wards Act, 1890 which primarily deals with the guardianship and custody of a minor in India gives jurisdiction to the district court of a minor’s ordinary residence to entertain matters under it. The Judiciary has dealt with the foreign orders dealing with the return and custody of child in a case-to-case. On certain occasions, it has upheld the principle of comity of courts or the provisions of law and in others, the best interest along with the country’s jurisdiction having the closest and intimate connection with the child.[ii] The inconsistency impacts the psychological, physical, emotional, and behavioral aspects of a child who is left at the mercy of the judge deciding the matter. Conclusion and suggestions It is time that India signs the Convention because having no law in place; the situation is being taken advantage upon, which is also evident from various reports, specifically the Law Commission Reports. It also makes the judiciary dependent on their own interpretation of the situation and resulting in often been misguided by irrelevant facts and circumstances. This situation can be backed by the 218th Law Commission Report. The Report highlights the lackof uniformity while adjudicating similar kind of matter. As India has been trying to approve of domestic laws to bring it in parity with the international perspectives on Child Abduction, signing the Convention can be a great step towards it. The idea of the Convention is to provide a safe place for a child to grow and be a responsible citizen of their country. Returning of the child should not be confused with giving the custody to the other parent as both the matters are completely different and are to be adjudged differently. The misconception that exists that if India signs the Convention it won’t have any say when it shall be a requested country in returning of the child should be first done away with. India, or by matter of fact any country which is requested for the return of a child, will have a say in such order by means of citing the exceptions which are available under the Convention itself. There is a reason why the term “requesting” and “requested” has been prefixed with state. It is to connote that the order of return of the child to the requesting country is not mandatory and is subject to speculations by the requested state. The following are the suggestions which can be adopted: i. India should have a law which deals with parental child abduction and must not be a place of forum shopping. ii. Clear out the misconception that by signing the Convention, India won’t have any say while returning the child, should be done away with. Awareness should be spread regarding such misconceptions and make understand the general public the features of the Convention. iii. It should be kept in mind that it is not a woman benefiting Convention but rather a child centric Convention. iv. Return of child under this Convention should not be confused with the concept of custody. v. It should be the duty both of requesting as well as requested country to ensure safe return of the child as well as the parent to the country of his/her choice without facing any prosecution. vi. Such transfers must be done responsibly keeping fully in mind the wellbeing of the child and not to be corroborated with other irrelevant circumstances or facts. vii. A proper uniform definition for habitual residence or ordinary residence should be set so that there won’t be ambiguities in the legal frontier as such ambiguities shall result in inconsistencies in deciding cases. viii. A strong mechanism along with appropriate checks and balance mechanism must be in place. ix. A judge should head the central authority which shall be established under this Convention that will accept all requests on parental child abduction and ease out the return and exchange process and also can look into the point of law along with the best interest of the child.
[i] Anil Malhotra and Ranjit Malhotra, 'To Return or Not to Return: Hague Convention v Non-Convention Countries' (2017) 2017 Int'l Surv Fam L 129 [ii] See V Ravi Chandran v UoI 1 SCC 174 (2010) , Surya Vadanan v State of Tamil Nadu 5 SCC 450 (2015)