INTERNATIONAL PARENTAL CHILD ABDUCTION | Volume III Issue III | Author :- Vaibhav Gwalani, Co-Author:- Arika Gupta

Abstract ________________________________________________________

The concept of International Parental Child Abduction is not a new concept by any means, it has been internationally and officially recognized for almost three decades at this point. It usually refers to the illegal removal or kidnapping of a child from their country of residence,most often by one of the parents but can include relatives or acquaintances of the parents, to a foreign country. The occurrence of such a phenomenon attracts a conflict between international laws with reference to their applicability. There have been instances where the enforceability of the law of residential country is just not possible in the foreign country where the child has been illegally removed to. There are certain international treaties like the Hague Convention that have tried to address and enact a law at international level. However, there are many countries that do not accede to such conventions. There are many countries that havecome up with domestic laws of their own to address this situation. Despite all these measures to try and curb the issue and solve the conflict between international laws, the phenomenon still exists to this day. This paper will aim to study the concept in detail and take an in-depth look at the International Treaties that exist and at several countries that have drafted domestic legislations on the topic. Lastly the paper will take a look at how the situation has been handled in India, where there are several domestic legislations that attempt to provide an answer for the dispute.At the same time, there have also been several judicial pronouncements by the courts of India on the same.

Keywords: Legislation, Treaty, Child, Abduction, Kidnapping, Conflict, Compliance.

Introduction_____________________________________________________

It has been more than three decades since the international community sought, through the 1980 Hague Abduction Convention, to address international parental child abduction. Nevertheless, the issue continues to exist and, indeed, a large number of countries that have still not acceded to the Convention are the places where the problem persists. One such non-signatory country is India, where, contrary to the return-based method of the Convention, the courts have applied domestic law to treat the wrongful removal disputes as custody disputes on the basis of criteria relating to the best interest of the child or the protection of the child.

Globalisation and the rapid integration of people around the world has lead to an increase in the number of transnational families in the world. These families are exposed to cultures and jurisdictions beyond their ethnicity, for reasons like judicial separation, divorce, maintenance, custody of children etc. An unfortunate result of litigation concerning transnational families is the rendering of custody orders in relation to children in international courts and under a statute that is not generally comprehended by the parties, where there are issues relating to implementation of those orders in a separate jurisdiction. Regulation of custody-related orders in international jurisdictions is a concern because the parents’ personal rules, being different, also have different positions on custody, and are affected by religious law in some instances. Parental kidnapping of children is a related concern that sometimes occurs. A parent fighting a custody dispute may remove the child from his or her usual residence and move to another country with the child, leaving the other parent in that foreign jurisdiction to seek litigation. When a parent withdraws the infant across international boundaries to a jurisdiction that is not his or her own, international parental child abduction occurs. There is a risk of lengthy litigation for custody-related judgments across jurisdictions with private international law laws that are different between nations.

A big effort to avoid this scenario and ensure the return of children to their usual residence is the Hague Convention on Civil Aspects of Child Abduction[1]. The Convention adopts a specific approach to abuses of custody rights: it departs from the laws of jurisdiction and acceptance of international rulings, rather than concentrating on the return of the child. It should however be remembered that since a return order does not dispose of the merits of the custody issue, the Convention perceives return as a ‘provisional’ remedy. Instead, it is envisaged that once the child is returned there, further proceedings dealing with the merits of the custody conflict will take place in the state of regular residence of the child.

This paper will look to study and understand the concept of International Parental Child Abduction. It will examine its history with the help of some case laws. The paper will then move on to study the Hague Convention and look it situations where it falls short, situations like domestic violence. The Convention’s silence on such issues is one of the reasons why India hasn’t acceded it. The next part of the paper will focus on the laws that already exists in India on the subject and the judicial interpretations made so for the subject. Lastly, the paper will look at the efforts of the Indian Legislature to pass an act on the subject.

Research Methodology____________________________________________

The method of research that has been adopted for this paper is mostly doctrinal in nature. Data is collected mainly from secondary sources ranging from articles, journals, legislatures and international conventions. The data will be used to analyse the treatment of International Parental Child Abduction in India and make comparisons with how the International Conventions treat it.

Research Objectives______________________________________________

• To understand the concept of International Parental Child Abduction.
• To study the judicial interpretations made by the Indian Courts on the topic.
• To study the efforts that have been made in order to bring about a change in the way things are handled presently.

Research Questions_______________________________________________

• What is the impact of the judicial interpretations made by the Courts on the present topic?
• What were the shortcomings in the Hague Conventions on the Civil Aspects of International Abduction?
• What are the provisions of the bill submitted in the houses of the Parliament in 2016?

Hypothesis______________________________________________________

The concept of International Parental Child Abduction is a problem that affects the lives of the children involved more than anything. India needs to pass a law and needs to become a signatory to the Hague Convention in order to provide iron clad solution to the problem that persists in the country. The Bill that was introduced in 2016, needs to be enacted so as to ensure justice to the people affected.

1. Understanding the Concept of International Parental Child Abduction___

The term International Parental Child Abduction is synonymous with Parental Kidnapping. The term is however, finds its precise legal usage in the world of Private International Law and usually refers to the illegal removal of children from their homes and their residential nation by either a family member or an acquaintance to a foreign country. One has to note that ‘illegal’ in this context usually means the breach of a custodial rights. The removal of from the custodial rights in the context of International Parental Child Abduction involves the illegal removal of a child from the rightful custody of a guardian, and in such a situation could create a conflict of laws where multiple authorities could get involved and cause them to reach at multiple and conflicting decisions regarding the custody of the child, these decisions often cross the geographical bounds of countries, thereby, making it difficult to enforce the orders of the courts on the parties that do not live in that particular country.

The International Child Abduction in the present situation occurs when a parent or anyone takes a minor child out of the custody of the guardian from the country that happens to be the child’s habitual residence to a foreign country[2]. If the country happens to be a party to the Hague Convention, then the child will be returned to the country of their habitual residence. If a situation arises where there is a conflict of laws, then the laws of the country where the child is present at the time of the hearing will be followed. The issue of a child’s custody in such cases becomes irrelevant once a child crosses the age of 16.

A good example for a situation like this would be a comparison between the American and the Japanese Legal Systems. As per the American Federal Law it would be illegal for a Japanese mother to retain her kids and take them to Japan, away from their father. However, under the Japanese law, it would be a criminal offence for the American father to take his kids from the mother and take them back to USA. In a situation like this the law of the place where the children preside is taken into consideration i.e the Japanese Law would apply in a situation like this.

In 1993, the United States Passed the International Parental Kidnapping Act. Which created federal international kidnapping offense under section 1204 of the act. As per the provision it was a federal crime for a parent or any other person to remove or attempt to remove a child from the United States or retain a child outside the United States with the intent of obstructing another person’s custodial rights. The US reports a large number of cases involving parental kidnappings, mostly from countries like Australia, Brazil, Canada, Colombia, Germany, India etc.

Child victims are often abducted from a familiar setting and unexpectedly separated from their neighbourhood, relatives and friends by foreign parental kidnapping. They can miss months of schooling or even years. In order to stay concealed or beyond the control of the parent who resides in the United States, the child can be transferred to several locations. In certain situations, the name, date of birth, and physical appearance of the child are changed or obscured to conceal identity.

Furthermore, a child may be emotionally disturbed by the strained and unfavourable situation between the parents. Long-term psychiatric issues such as anxiety, eating disorders, nightmares, mood swings, sleep disturbances, and violent behaviour are at high risk for kidnapped children. Child victims of foreign parental abduction often struggle with identity, relationship, and family problems as adults.

2. The Hague Convention on Civil Aspects of International Child Abduction

The Hague Convention on Civil Aspects of International Child Abduction was a multilateral treaty that was developed in 1980. The Convention was entered into force on 1^st December 1983. As of July 2019, there are 101 parties to the convention. The convention was drafted to ensure the prompt return of children that have been removed or abducted from their habitual residence out of the custody of the parent.

The objectives of the convention are set out clearly in article 1-

• To secure the prompt return of a child or children that have been wrongfully removed to or retained in any Contracting state; and
• To ensure that rights of custody and of access under the law of one Contracting State effectively respected in the other Contracting States.

The convention only provides a provisional remedy to those affected; this implies that it has a return-based approach. The convention only provides for the return of a child so affected by the removal/abduction. It does not speak about or make any references to the disposal of cases regarding the custodial rights of such children. Furthermore, the cases regarding the custody of a child in such cases is only dealt by the domestic courts of the child’s country of origin after they have been returned to the country. As per the provisions of article 3 of the convention, it comes into application when there has been a breach of the rights of custody rather than when a formal custody order is made.

The Convention attempts to prohibit the unilateral expulsion of a child from his habitual residence and thereby helps to restore secure relationships with children wrongfully separated from their homes by immediately returning the child to the situation before it was affected by removal. The Explanatory Report of the Convention asserted that the Convention’s twin objectives – one preventive, the other intended to ensure the child’s immediate reintegration into its accustomed climate – all contribute to a particular idea of what constitutes the ‘best interests of the child.’

The Convention considers that the courts of habitual residence are the proper venue for custody-related disputes and that, accordingly, wrongful removal should be corrected immediately by the return of the child to his habitual residence. The Explanatory Report noted that by virtue of the statute, the legal feature of habitual residence is the condition in which the child’s relationships formed prior to his removal. Over the years, the legal meaning of habitual residence in child abduction disputes involving several jurisdictions has been claimed in many instances.

In the case of C (Children)[3], The value of habitual residence and the return of the conflict concerning the child to the jurisdiction of the courts of habitual residence was expressed by the United Kingdom Supreme Court. The court opined that the concept of ‘Habitual Residence’ was a question of law, not fact, and therefore, no single parent has the authority to alter the said habitual residence of a child by unilateral action.

This case involved an appeal by the father, the left-behind parent, against the order of the lower courts against return, on the basis of the Convention and in particular on the question of habitual residence. The mother, a naturalised Australian citizen, and the children, both minors and Australian citizens by birth, arrived on a vacation in the United Kingdom and lived with their maternal grandmother. The mother told the father of her decision to immigrate to the UK and also admitted the kids to a nearby pre-school. On a petition by the parent, the High Court & the Court of Appeal, ordered against return and found that a new habitual residence had been obtained by the children. The UK Supreme Court, in contrast to the lower courts, clarified the value of habitual residence as a legal concept: the abducting parent should not obtain an upper hand; the costs of the left-behind parent should be minimised; thus, the Convention provides for compulsory summary return.

Article 11[4] of the convention provides and requires that the parties to a suit need to ‘act expeditiously’ when dealing with such cases and sets a deadline of 6 weeks for courts to reach a verdict in such cases. The same has been adopted by the Brussels Regulation on the subject matter where courts have the deadline 6 weeks in deciding such matter, barring situations of grave exceptions.

Article 12[5] of the Convention states that when a return application is submitted and judicial proceedings have started before the appointed authority in the contracting state, the courts hearing the return request shall immediately issue a return order. Article 12(2) stated that the judicial authority would order the return of the child in proceedings that started after one year, unless it was satisfied that the child had adapted to the new environment. The return of the child, unless it is satisfied that the child has adapted to the new environment.26 If the child is of appropriate maturity, the court assessing the return request will hear evidence relating to potential damage to the child by returning to the country of habitual residence, including the child’s objections.

The Permanent Bureau of the Hague Conference has set up the International Child Abduction Database (INCADAT), a repository of information applicable to the Convention, including a case law search, in order to facilitate common awareness and clear analysis and hence the successful implementation of the Convention. It envisages direct reporting on international judicial correspondence and other matters.

Exceptions/Defenses Under the Convention:

The convention, under article 13[6] lays down certain defenses that can be used by a party to a suit against a court order, in cases where a child has been wrongfully removed or retained. The convention has however, specified that these defenses can only be used and accepted by courts with the sole intention of protecting the child’s interests.

Such defenses include the non-existence of custody rights, with the burden of proof being on the abductor to assert the non-existence or non-exercise of the rights of custody. Courts in the forum hearing the return request are not allowed to order the return if there is a significant risk that the return will expose the child to physical or psychological damage or otherwise put the child in an unacceptable position.

The convention also grants certain discretionary power to decide the grounds for denying the return of a child. This discretionary power is based on the belief that the courts in certain situations would pass orders keeping in mind that the child’s interests may require more than his or her summary return. Forum courts should note that an inquiry into a defence plea should not become a thorough investigation into the merits of the underlying custody case.

Article 20 states that if the parent proves that the return of the child will result in a breach of the basic standards of human rights and freedoms, the court is not obligated to return the child. The Explanatory Report noted that ‘art 20′ was designed to enforce a very narrowly eligible form of public order.’ In the few occasions it was pleaded, the courts were reluctant to extend this defence.[7]

Reason Behind India’s Non-Accession:

The country’s that don’t happen to be a signatory to the convention deal with the issue of International Parental Child Abduction by applying the provisions of their domestic laws to such cases. Noting that domestic laws are aimed at resolving the custody-related demands of the child on the basis of the ‘best interests of the child,’ there is variation in the understanding of ‘best interests’ in different countries. Moral and social principles frequently contribute to a decision by the courts against the child’s return to the country from which it was wrongfully expelled. Therefore, it is impossible for the left-behind parent to seek a return order from the international court for the child’s physical custody. A cause for concern has been India’s refusal to accede to the Convention. As reported, cases of parental child abduction in India have been considered child custody-related disputes to which personal law applies, with the exception of a few rare instances. The perceived loopholes in the Convention, however are important if domestic abuse may be understood in the language of the exceptions to the return, the possibility of criminal law being extended to the abducting parent upon returning with the child, and the lack of a safe harbour order for the abducting parent upon returning the child to the jurisdiction of the regular residence courts.

One of the reasons as to why India has yet to become a signatory to the convention is because of the convention’s silence upon the issue of domestic violence. The convention uses the words of ‘grave risk’ to describe the situations where the wellbeing of the child is in danger. However, the convention does not include domestic violence under the ambit of grave danger. Therefore, victims of domestic violence may be at risk of increased violence upon return to their habitual residence, particularly as the abducting parent may wish to accompany the returning infant.[8]

3. Position in India ________________________________________________

In the absence of any specific legislation addressing the events of International Parental Child Abduction in India and the fact that India is not a signatory to the Hague Convention of 1980, the issues and cases are address as typical custody disputes under the Guardians and Wards Act, 1890, the Hindu Marriage Act, 1955[9] and various other family law legislations. The procedure for the appointment of a guardians, their powers, responsibilities etc. has been laid down in section 17(2)[10] of the Guardians and Wards Act. Until a few decades ago, Section 6[11] of the Hindu Marriage Act, gave preference to fathers as the preferred parent of custody, until the case of Gita Hariharan v. RBI[12]where the court in the case took into consideration the section 6a of the Hindu Minority and Guardianship Act, 1956[13], where the provision states that the father and after him, the mother shall be the guardian of the child. The court held that the word ‘after’ here didn’t mean ‘after the lifetime of the father’, but rather ‘in the absence of the father’. The judgement was a significant step in changing the perception of custodial disputes in India and providing equal opportunities to women to fight for custodial rights of their children.

In a dispute relating to international child abduction in India, the permissible remedies are a petition under the Hindu Minority and Guardianship Act 1956, which has an extra-territorial operation; and the substantive remedy under Articles 32 and 226 of the Constitution of India for the writ of habeas corpus. The Convention did not accede to India. The lack of substantive legislation updated to the contemporary needs of global families, combined with non-accession to the Convention, has resulted in a summary and contradictory judgement on conflicts relating to international parental child abduction.

Surinder Kaur v Harbax Singh Sandhu[14] was one of the earliest cases in which foreign parental child abduction charges were resolved by the Indian judiciary and an important argument was made about the child’s welfare and also about jurisdiction. In India, the parties were married and moved to England where they had a child born to them. Marital discord led to the husband conspiring to assault the wife criminally, leading to his arrest and incarceration. The husband removed the child from England on probation and took him to India. The wife, who had received an order from the Ward of the Court, arrived in India and filed a petition for custody before the judicial magistrate. The husband argued successfully that the father was seen as the natural guardian by the Hindu Minority and Guardianship Act. The wife’s written request for custody of the child was denied on the basis that the wife’s financial and social position in England was not conducive to the child’s welfare. The wife brought a Special Leave Petition before the Supreme Court. Highlighting the welfare and interests of the child, the court observed:

“Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor…”

The Court acknowledged the facts relating to the health of the child at his regular residence in England and found that:

1. The boy’s health did not require the father and grandparents to live with him;
2. The ‘traumatic experience of a criminal charge conviction’ was not a consideration for the father, especially when the post-probation actions did not display any remorse; and
3. the father attempted to procure a travel document for the child founded upon a misrepresentation.

Therefore, the court ruled in the favour of the mother, and opined on the jurisdiction of the courts that:

“The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State, which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum shopping.”

Implying that the child’s welfare is the primary factor to be taken into consideration in disputes that concern custody and guardianship of children. For example, in Sahiba Ali v. State of Maharashtra[15], a case involving a muslim couple, the petitioner, the mother of the twins, received from a competent court in the United States of America a custody order in her favour (USA). The petitioner’s husband and the children’s father were serving a jail sentence in the USA. The complainant applied for the return of two minor children removed to India against the respondents, the husband, and the paternal grandmother. Her habeas corpus writ petition was rejected by the Supreme Court. The decision noted the proceedings and custody orders given by the Family Court in Nagpur, India, granting custody to the paternal grandmother of the minor children in question, and found that their continued custody with the paternal grandmother required the interest and welfare of the children. This finding was made in view of the petitioner’s educational history, a child psychology specialist with the financial capacity to care for the child, and the paternal grandmother’s advanced age. The Court held that on the basis of the order of the Family Court, the status quo was to support the wellbeing of the children, despite the fact that the foreign court found that the mother was in favour of the children’s custody.

In Dhanwanti Joshi v Madhav Unde[16], the Supreme Court has written extensively on the custody requirements of domestic law. The Supreme Court, reiterating the ‘welfare of the child’ as the primary concept, found that the custody of a minor child under the age of five should remain with the mother. The Court observed:

“So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the Court to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v McKee[17] unless the court thinks it fit to exercise in summary jurisdiction, in the interests of the child and its prompt return for its welfare. There is no need for the judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child’s return unless a grave risk of harm is established.”

Commenting upon the welfare principle, the Court acknowledged the observation made by Lindley, LJ in Re v McGrath (Infants)[18] and stated:

“the welfare of the child is not to be measured by money alone nor by physical comfort only. The word ‘welfare’ must be taken in its widest sense. The moral and religious welfare must be considered as well as its physical wellbeing. Nor can the ties of affection be disregarded.”

In Dr V Ravi Chandran v Union of India (2010)[19], In violation of a joint custody order issued by a competent court in New York, the respondent mother removed a minor child born in the USA and a citizen of that country. The father of the petitioner filed a written petition for the wrongful deportation of the child to India against the mother of the respondent. The Court noted that in international child kidnapping, the convenience of the courts and the best interests of the child constitute the two primary legal considerations. However it held that a decision on custody should not be solely based on an order made by a foreign court. Noting that the jurisdiction of the courts would not entail the universal application of international decisions, it held that the facts and circumstances should be properly taken into account in particular cases. Discussing jurisdiction, the Court upheld the precedent in custody-related disputes in Indian courts, namely that the jurisdiction that has the most intimate interaction with the issues arising in the case of the child should be given priority. This clearly demonstrates that the role of the Indian courts deviates from the Hague Convention, which relies primarily on habitual residence and not on intimacy of touch.

The Indian law on international parental child abduction was further clarified in Surya Vadhanan v Union of India (2015)[20]. The appellant, Surya, a British citizen, and the respondent, Mayura, an Indian citizen, were married in Chennai, India in 2000. Two children were born to them in the UK. Following matrimonial discord, Mayura, along with their daughters, returned to India in August 2012. She filed a divorce petition and a custody order application in the Family Court at Coimbatore, India. Surya arrived in India to attempt amicable resolution of differences but was unsuccessful. The Family Court summoned Surya to appear before it. He, however, filed a petition in the High Court of Justice in England, seeking to make the children wards of the court. On 13 November 2012, the High Court of Justice granted him his petition.

In Chennai, India, the appellant, Surya, a British resident, and the respondent, Mayura, an Indian citizen, were married in 2000. In the UK, there were two children born to them. After marital discord, Mayura returned to India in August 2012, along with her daughters. At the Family Court in Coimbatore, India, she filed a divorce petition and a custody order application. Surya came to India to try to settle differences in an amicable way, but was unsuccessful. Surya was summoned by the Family Court to appear before it. However, he filed a petition with the High Court of Justice in England seeking to make the wards of the court for the children. His petition was granted to him by the High Court of Justice on 13 November 2012.

Surya then appealed to the Madras High Court’s written jurisdiction, pleading that Mayura kept their children in unlawful custody. The Court ruled in favour of Mayura, relying on the best interests of the child theory and reiterating that the custodial rights exercised by her will not be unconstitutional because the mother could not be held to have kidnapped her own children. Surya then appealed to India’s Supreme Court. Making an elaborate statement on the comity of courts principle and welfare of the child, the Supreme Court observed:

“Comity of courts is a self-restraining principle, applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court, whereas the best interests and welfare of the child are of paramount importance while deciding merits of the case court.”

The above-mentioned decisions highlight the contradictions in the Indian stance on inter-country child abduction. Similar observations have been made by the Law Commission of India, an administrative body set up by the Government of India for the purpose of proposing law reform. It recommended accession to the Hague Convention in 2009 and noted that inconsistency in Indian courts with respect to custody-related requests concerning inter-country child abduction conflicts resulted in significant confusion for the litigants. The Commission noted that the anomaly may be due to the non-accession to the Convention, which requires the judiciary, in order to assess jurisdiction, to deviate from the concept of habitual residence and rely on intimate touch. In addition, dependence on the theory of comity yielded opposing effects. There have been cases when, despite a legitimate international custody or return order, the child was not returned to the foreign jurisdiction; and a few times where a child was returned to the foreign jurisdiction. The decisions also show the prevalence of summary return orders for a removed child to the country of habitual residence in Indian law in accordance with the order of the foreign court to restore parental rights.

The assumption of jurisdiction by the Indian courts on grounds of the principle of the welfare of the child is controversial, provided that the fundamental principle of the welfare of the child in custody cases is applied by courts around the world and that, accordingly, the assumption of jurisdiction by the courts of the habitual residence can also be clarified as being appropriate for the welfare of the child. While there are concerns reported in the media and in sociological studies regarding domestic abuse visited on women at the regular residence in their homes, and lack of access to social services there, Indian courts’ decisions do not relate to these circumstances as a factor in ordering the children’s non-return. A comprehensive law may help resolve and mitigate concerns about the safety of women and the needs of children, taking into account the varied scenarios related to parental child withdrawal.

The consequence is confusion for the disputants, even for those keeping a foreign court custody order made at the place of the child’s usual residence, in the absence of such law reform attempts.

4. India’s Attempt to Pass a Legislation_______________________________

In its 2009 Report (Law Commission of India, 2009), recommending accession to the Hague Convention, the Law Commission of India pointed out that the Indian Civil Aspects of International Child Abduction Bill of 2007 was the earliest legislative action on the legal issues of inter-country abduction. However, before being debated in Parliament, the Bill, which was never presented in the public domain, lapsed, and so no further action was considered. The High Court of Punjab and Haryana next addressed the issue of inter-country parental child abduction in 2016 when it noted the ease with which a child could be taken out of India.

In 2016, The Punjab and Haryana Court referred the matter to the Commission and the Ministry of Women and Child Development of the government of India ‘to examine the legal issues involved in international, inter-parental child removal and analyse the possibility of acceding to Hague Convention’.[21]In 2016, the Ministry drafted the Civil Aspects Bill of International Child Abduction. It is in line with the Convention that the key features of this proposed law are. The Bill supports the formation, under the Hague Convention, of a Central Authority for the performance of duties to ensure the return of children excluded through the establishment of judicial proceedings in the High Court in question. The competent authority or an individual in the contracting country may request the return of the removed child to the country of habitual residence of the Central Authority.If there is a grave risk of harm or if it puts the child in an intolerable situation, the High Court can refuse a return request. Consent or acquiescence can also contribute to the court denying a child’s return. If the child objects to being released, the court is satisfied that the child is of age and mature enough to recount and express his or her opinions, a return order may be refused. Before ordering the return, the High Court may require the Central Authority to obtain from the competent authorities of the country of habitual residence a decision or a determination as to whether the removal or retention of the child is unreasonable in India. The return order from the High Court which direct the person who has taken the child back to India to pay the costs and costs incurred in returning the child back to the country of habitual residence.

The Abduction Bill is based on the terms of the Convention, as stated earlier, but it does include some amendments. The Bill describes’ habitual residence ‘in a divergence from the Convention as the place where the child lived with both parents; with one parent when they live separately under a separation agreement; with the tacit consent of the other parent or under a court order; or with a person other than a parent for a substantial period of time on a permanent basis, whichever was last. It is anticipated that this inclusion will help to mitigate the issues related to the concept of habitual residence in the Convention. However, in deciding habitual residence, the concept does not specifically consider the issue of ‘will,’ since a decision to reside in a specific location is likely to be motivated by the job prospects of the husband rather than the parents’ joint decision. This might put Indian women affected in jeopardy.

The failure to specifically discuss the issue of Indian women fleeing foreign countries with their children to avoid stressful circumstances is a major loophole in the Abduction Bill. The issue is that the Bill is entirely silent about the ‘extreme risk’ situations and there are no criteria or standards established in the Indian legislative context to assess serious risk and intolerable circumstances. In addition, the Abduction Bill is silent on the prospect of extending to the mother the significant risk of exemption from psychological or physical harm. A mechanical order to return the child based on the literal reading of the law without accounting for the social parameters and fully ignoring the condition of the wife cannot be justified in a scenario in which the wife has taken the decision to flee from the foreign country in the midst of extreme physical, mental, financial difficulties and abuse.Therefore, the Law Commission of India has recommended changes to the Abduction Bill focusing on the welfare of the child and proposing the title of the proposed legislation – The Children’s Protection (Inter-Country Removal and Retention) Bill 2016.

5. Conclusion____________________________________________________

The occurrence of International Parental Child Abduction is a very serious chain of events that affect the children more than anything. The Hague Convention, 1980 was a step in the right direction to establish certain rules and regulations to remedy the situation. The Convention lays down the jurisdiction of courts in such matters, it also lays down the defences that can be used in such cases and it also lays down a time frame under which the courts have try such cases. The general principle under the convention is that such a case has to be tried in the original habitable country of the child. There are however, a few shortcomings of the convention, such as its lack of mention of the issue of potential domestic violence in such cases.

The fact that India is not a signatory to the convention, does not mean that such disputes did not get resolved in India. India used several Family Law Legislations to solve disputes in such issues, and thereafter, the judicial pronouncements and the decisions became the precedents for the cases going forwards. India then try to enact a bill in 2016 to address the issue.

While trying to provide a significant deterrent to the wrongful removal of children, the Abduction Bill did not fully take into account the changed profile of abductors, especially the genuine concerns of Indian women who are increasingly the ones who wrongfully remove a child.The proposed legislation should adopt the recommendation of the Law Commission to include domestic abuse as a return exception. Importantly, safe harbour orders that would ensure no harm to the abducting parent accompanying the returning child should be included in the legislative initiative in India. There are important examples discussing this possibility from the Asian field.Japan’s enforcing of laws on accession to the Convention, for example requires judges ordering the return of a child to take into account all the factors associated with the possibility of abuse following the return of the parent or the child. As India legislates against international abduction of parental children, the changed profile and circumstances of unlawful removal and the protection of the removing parent must be taken into account when the child is returned to its habitual residence.

Thus, India needs to pass the bill that was introduced in 2016, and preferably also become a signatory to the Hague Convention in order to be in consonance with the way these cases are handled outside India. Doing so will provide the courts with a proper set of guidelines with reference to how they are supposed to deal with such cases and allow for swift delivery of justice.

Bibliography_____________________________________________________

• The Hague Convention on Civil Aspects of Child Abduction, 1980.
• Guardians and Wards Act, 1890.
• Hindu Marriage Act, 1955.
• Hindu Minortiy and Guardianship Act, 1956.
• Anand, Pinky (2011) ‘India’, in J Stewart (ed) Family Law: Jurisdictional Comparisons. London: Sweet and Maxwell.
• Conflict of Laws by Lakshmi Jhambolkar.
• Garimella, Sai Ramani (2017) ‘International Parental Child Abduction and the Fragmented Law in India — Time to Accede to the Hague Convention?’, 17 Macquarie Law Journal 38.
• Jolly, Stellina (2017) ‘International Parental Child Abduction and Legal Standards in India’, 31(1) International Journal of Law Policy and Family 23.
• Malhotra, Anil (2010) ‘To Return or Not to Return: Hague Convention versus Non-Convention Countries’, 13 Journal of Family Law and Practice
• Malhotra, Anil, and Malhotra, Ranjit (2008) ‘Family and Religion-The Indian Experience’, in Bimal N Patel (ed), India and International Law: Introduction. Leiden /Boston: MartinusNijhoff.
• Malhotra, Anil and Malhotra, Ranjit (2016) India Inter Country Parental Child Removal and the Law. Allahabad: Universal Law Publishers.

[1]Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, 3511 U.N.T.S. 249 available at: https://www.refworld.org/docid/3ae6b3951c.html.

[2]The International Parental Kidnapping, The United States Department of Justice, (May 01, 2021), https://www.justice.gov/criminal-ceos/international-parental-kidnapping.

[3]In the case of C (Children),[2018] UKSC 8.

[4]Supra note 1, at art. 11.

[5]Supra note 1, at art. 12.

[6]Supra note 1, at art. 13.

[7]Janakakis-Kostun v Janakakis, (1999) 6 SW.3d 843, 851.

[8]ArathiBandi v BandiJagadrakshaka Rao, CRIMINAL APPEAL NO.934-936 OF 2013.

[9]Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955.

[10]Guardianship and Wards Act, 1890, No. 8m Acts of Parliament, 1890,§. 17(2).

[11]Supra note 9, at.§ 6.

[12]Gita Hariran v. Reserve Bank of India,(1999) 2 SCC 228.

[13]Hindu Minority and Guardianship Act, 1956,No. 32, Acts of Parliament, 1956,§. 6a.

[14]Surinder Kaur v.Harbax Singh Sandhu, 1984 3 SCR 422.

[15]Sahiba Ali v. State of Maharashtra, (2003) JT (6) SC 79.

[16]Dhanwanti Joshi v. Madhav Unde, 1997 8 SC 720.

[17]McKee v. McKee, (1951), AC 351.

[18]Re v. McGrath (Infants), 1893 (1) Ch. 143 (148).

[19]Dr V Ravi Chandran v. Union of India, (2010) 1 SCC 174.

[20]Surya Vadhanan v. Union of India, (2015) 5 SCC 450.

[21]Seema Kapoor v. Deepak Kapoor, (2016) SCC online P&H 1225.