ABSTRACT
This paper explores the complex issue of interparental child abduction, with a focus on the international legal framework and India’s approach to addressing such cases. The paper examines two major international conventions: The Hague Convention on the Civil Aspects of International Child Abduction and the United Nations Convention on the Rights of the Child (UNCRC). The former convention emphasizes the prompt return of children who are separated from their homes to their country of their actual domicile, while the UNCRC underscores the rights of the child, including protection from wrongful abduction and the right to be heard.
In addition to discussing these global conventions, the paper delves into India’s stance on interparental child abduction. India has not signed the Hague Convention, and therefore has developed its own judicial approach in addressing such cases. The paper analyses key legal principles in India, such as jurisdiction, the comity of courts, and the doctrine of the best interest of the child. It highlights how Indian courts navigate the delicate balance between respecting the rulings foreign courts and ensuring the wellbeing of the victim in cross-border abduction cases. By comparing international conventions with India’s legal approach, the paper provides a comprehensive understanding of the challenges and potential solutions in handling interparental child abduction.
Keywords: Abduction, Parental, Comity, Best Interest, India.
INTRODUCTION
Every child is entitled to feel adored, infatuated, and to grow up in an environment that provides stability. To achieve this, children must grow up in a family setting. Kidnapping, whether carried out by a stranger or a family member, has severe repercussions on a child’s sentimental and psychological health. Such actions alienate the child from the culture, language, traditions, history, and even the identity of the parent they have been separated from. In Cooper and Casey, the court ruled that kids can have just one regular place of residence, which should be determined based on their prior experiences rather than the intentions of the child or their parents. Child abduction is regarded as a serious crime in many countries and is considered a violation of fundamental human rights. In today’s globalized world, where people often relocate abroad for better job opportunities, cross-border marriages and living in countries different from one’s nationality have become more common. This, in turn, increases the likelihood of one parent taking the child to a different country. In transnational families, cross-border conflicts frequently arise, and it is the children who bear the consequences. Because of the challenges of obtaining custody in a foreign court and the difficulties in enforcing such orders—since the laws of both countries may differ—”abduction” might appear as a simpler solution. Enforcing custody orders across borders is problematic because parents’ personal laws, which may vary, often take different positions on custody and may even be influenced by religious law. The 1980 Hague Convention is a significant international effort targeted to address this issue by ensuring that these kids are returned to their proper homes.
METHODOLOGY
The purpose of this study was to review the existing literature on international parental child abduction. To gather relevant information, multiple academic databases were systematically searched for articles published in various countries. Given the nature of the available publications, a formal systematic review could not be conducted, and instead, a narrative review was employed. This review primarily focused on observational studies, while also summarizing key themes from other types of publications. Most of the articles reviewed, including all observational studies, were authored by scholars and government organizations, offering valuable insights into the issue of interparental child abduction.
LITERATURE REVIEW
THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION.
According to research, the number of divorces and disputes over custody has increased since globalization, and improvements in technology created an increasingly busy lifestyle and working attitude. This is where the global phenomenon of familial kidnapping and child displacement originated.
The relocation of kids by either parent from one state to another against the knowledge of the other parent is known as international parental child abduction. When we talk of child removal, we mean interfering with a parent’s or guardian’s right to see their kid. When a parent’s actions are taken before a court of law, they cause a great deal of misunderstanding, particularly in the field of the courts’ jurisdictional capacity.
In response to this problem, the world’s leaders adopted the Hague Abduction Convention on October 25, 1980, and it came into effect on December 1, 1983. The main objectives of the Convention are to (i) secure a prompt return of children who have been wrongfully removed or retained in any contracting state, and (ii) ensure that the rights of custody and access under the law of one contracting state are effectively respected in other countries. Apart from this, one significant feature of this Convention is that all nations that have accepted or acceded to it are required to establish a central authority. In cases of parental abduction or involving other officials, this central authority serves as the primary point of contact. It is also responsible for assisting in locating abducted children, providing alternatives to parental abduction, and helping to reintegrate the child into their regular life. Moreover, the customary procedures needed to accept foreign documentation are waived for papers filed through the governing body for the application process, making them legally binding in the courts of the member states. Additionally, the Convention allows parents to provide evidence of the child’s habitual residence—typically shown by evidence of caregiving or the parent-child bond—instead of a formal custody order to prove that the removal of their child from their country of origin infringed their right to be with them. Lastly, the immigration status or identity of either parent or children in such countries cannot impact the decision on visitation rights or the child’s return.
THE UNITED NATIONS CHILD RIGHTS CONVENTION (UNCRC)
Every child is entitled to survival, protection, education, and the right to have their voice heard. With 141 signatory states, the UNCRC is the most widely ratified human rights treaty in history and includes 54 articles that address children’s rights. It was signed on 20 November 1989 at New York City. It is grounded in four fundamental tenets: Article 2 mandates that minors be shielded from unfair treatment; Article 3 stipulates that thetheir paramount concern must always come first in whatever choices that impact them; Article 6 ensures every kid’s right to survive and grow in an environment that is safe for them, and lastly, children’s opinions should be considered in matters that impact their lives (Article 12).
On December 11, 1992, India ratified UNCRC agreeing to its provisions but expressing reservations regarding child labour. Although it is against the law in India for minors under the age of 18 to work, child labour is not outright forbidden. Most sectors allow child labour, except in industries deemed “hazardous,” which have established minimum age requirements. Following its ratification and the 2015 amendment to the Juvenile Justice Act, which placed more emphasis on reuniting children with their families and returning them to their previous economic status, a strategy that litigants frequently employ to request a child’s repatriation, the bhārat sarkār introduced the National Charter for Children, 2003, emphasizing the best interests of the child. Despite numerous laws banning child labour in hotels, restaurants, and domestic work, there remains significant demand for children as household help.
Furthermore, there are three additional optional protocols which augment the CRC, strengthening the safeguarding of children and their privileges. The first protocol addresses children’s engagement in armed conflict, with the goal of preventing recruitment and use in tensions. In an effort to stop child exploitation, the second protocol addresses child prostitution, sales of minors, and the production, purchase, and distribution of child-related pornography. The third protocol establishes a communication channel that enables children to file complaints directly with the United Nations if their rights are violated and no national remedies exist. Together, these guidelines strengthen the CRC’s ability to protect children’s rights around the world.
INDIA’S APPROACH TO INTERPARENTAL CHILD ABDUCTION
There are no precise official statistics on international parental child abduction to and from India. However, the U.S. Annual Report on International Parental Child Abduction (IPCA) identifies India as one of the top destination countries for such cases. In India a significant increase in the number of non-resident Indians (NRIs) across various jurisdictions have been noted by the Law Commission of India. This rise has led to growing challenges stemming from non-resident marriages, including cases where one parent, goes against the orders of a court of different jurisdiction, removes their child from a foreign jurisdiction and relocates to India. The non-resident parent often faces considerable distress while attempting to locate their spouse and child in India. There aren’t many laws in India that address the full problem of custody of children and unlawful removal, and to make matters worse, the country’s legal system clearly favours the father’s status as the kid’s natural guardian, unless the said child is a female minor, in which case the custody automatically goes to the mother..
Because India is not a member to the 1980 Convention, Indian courts evaluate guardianship issues involving illegally taken or kept children on a case-by-case basis. In such circumstances, courts seek to strike a compromise between judicial comity and child welfare. Judicial rulings in international parental child abduction cases have had diverse outcomes, with some children not being returned to a foreign country and others being returned. Courts have frequently used the notion of ‘intimate contact’ to determine jurisdiction, which assumes that the forum with the closest relationship to the child is more prepared to assess the kid’s social, cultural, and welfare needs.
In India, lack of fiscal freedom among women and restricted access to legal aid exacerbates situations of parental abduction by their spouses. Many women, particularly those in precarious economic conditions, may struggle to fight their husbands in custody battles or navigate the judicial system when their kid is unlawfully stolen. Financial constraints frequently restrict women from taking urgent legal action, employing qualified lawyers, or fighting long-term legal fights in domestic or foreign courts. Furthermore, with limited access to legal assistance, mothers may not obtain the guidance and support they require to properly defend their rights or the welfare of their children. As a result, some husbands take advantage of this power imbalance by employing parental abduction to get possession of the child, knowing that the wife’s limited means and legal support will make it more difficult for her to dispute the abduction. This imbalance exacerbates the difficulties women confront in protecting their children’s rights.
JURISDICTION
Child abduction is the illegal removal of a child from their residence without adequate approval or consent. Child abduction can occur for various reasons, such as one parent fleeing domestic abuse or wanting retribution on the other parent. Many crucial elements must be taken into account when resolving situations involving child abduction, including the court’s jurisdiction, relevant statutes governing custody determination, and the application of international conventions on the subject.
Most fundamental question to be answered in these cases is determining the court’s jurisdiction. This includes establishing which laws apply, how much jurisdiction the court has, and whether it has the authority to decide the case.
The principles found in Private International Law serve as the foundation for these decisions. These principles include, but are not limited to, the consideration of Lex Causae (the law of the nation having the closest connection to the case), Lex Fori (the law of the court hearing the case), and Lex Domicilii (the law of the child’s habitual residence).
COMITY OF COURTS
Now that the jurisdiction has been established, courts investigate the possibility of implementing orders issued by these foreign courts. This implies that, in most cases, the unhappy spouse would go to the country where the kid was seized and file a lawsuit there. The parent who abducted the child may then be ordered by the court in that nation to either return the child or appear with him at the following hearing.
The holder, if an Indian, would move to Indian courts to enforce the ruling once it is rendered by the foreign court. The main reason for this is because it is easier to obtain an order from the country where the kid resides instead of obtaining an order from India and having it enforced in a separate jurisdiction. Having said that, the procedure of obtaining an enforcement order is not as simple as it may seem. The Indian courts consider two widely accepted principles: the principle of first strike and the principle of comity of courts. In short, these guidelines highlight the need of honouring the laws and principles of other international communities. In their interactions with one another, nations adhere to benevolent norms, deeds, and standards known as the principle of comity. The court may evaluate the laws of other countries, even though its primary role is to apply its own laws. Section 13 of the CPC does not specifically handle foreign orders, even though it acknowledges this principle.
The court has consistently upheld the comity principle, withholding execution only in rare or compelling circumstances, including interim orders issued by foreign courts. The rationale for the first strike principle is comparable.
It merely implies that the Indian court must accord the foreign court’s order an adequate amount of weight if the foreign court’s authority is clear-cut and does not need to be questioned. Therefore, that foreign order ought to have precedence. The courts take into account a number of other factors while attempting to implement orders from foreign courts. As a result, courts have determined that although the comity principle should not be ignored, it also shouldn’t be applied in such a way as to make it impracticable.
BEST INTEREST OF CHILD
The term “welfare” refers to the optimal setting for a child’s personality development and growth. Therefore, the comity principle should be carefully considered rather than strictly enforced, and this jurisdiction governs how courts handle cases involving minors’ custody. In this particular case of Nithya Anand Raghavan, the court decided that in order to exercise parens patriae power, it was necessary to consider factors that may affect the growth of the child, such the child’s will to reside in a certain area. The Supreme Court affirmed the parens patriae concept in Dr. V. Ravi Chandran v. UOI, emphasizing that it should be used with the welfare of the child as the first consideration. For these reasons, courts frequently adhere to the first strike and comity principles when they can, as long as doing so is always conditioned on the child’s welfare and the court’s parens patriae jurisdiction.
In Dr. V. Ravi Chandran v. UOI, the Supreme Court upheld the parens patriae principle, emphasizing that it should be applied with the child’s welfare as the first concern. In the particular case of Nithya Anand Raghavan, the court ruled that when exercising parens patriae jurisdiction, it must examine circumstances impacting the child’s development, such as the child’s wish to live in a specific region. Based on these reasons, courts often follow the comity and first strike doctrines wherever possible. However, this is always contingent on the child’s wellbeing and the court’s parens patriae authority. Indian custody law is based on the provisions of the Guardianship and Wards Act of 1890 and the Hindu Minority and Guardianship Act of 1956. If the court chooses not to use these principles and instead evaluates the case on its own merits, it is guided by these laws. In the end, the child’s welfare must be taken into account in the final judgment. The welfare of the minor is given precedence above the parents’ statutory rights under Sections 6 of the Hindu Minority and Guardianship Act, 1956 and in Sections 7, 9, 12, 13, 17, and 25 of the Guardianship and Wards Act, 1890.
SUGGESTION
A total of 103 countries (November 2022) globally have become signatories to the Hague Convention 1980. Australia is one among many countries that have incorporated the conventions provision by amending their family law system. However, India has not yet signed the Convention. This lack of participation may affect how foreign courts handle cases involving the custody of children connected to India. Without the protection and guarantees provided by the 1980 Convention, in particular, the prompt repatriation of kidnapped youngsters to their own country, foreign judges might be reluctant to allow children to travel to India.
To address this, India should adopt an international perspective by becoming a signatory to the Hague Convention. Doing so would enhance the chances of recovering children who are wrongfully taken abroad and ensure their return to India, where they have their habitual residence. In order to better safeguard children in cross-border custody disputes, the author suggests that the Indian authorities take into consideration signing the 1980 Convention. The author believes that India needs to change quickly in order to keep up with the ever-evolving demands of society.
CONCLUSION
In today’s globalized world, the subject of inter-parental child removal and abduction is a critical one, and the Indian judiciary is essential in handling these intricate situations. Indian courts handle complex legal matters include establishing jurisdiction, enforcing judgements of foreign courts, and making the welfare of the kid the top consideration. Although the first strike and comity principles are acknowledged, the child’s best interests always take precedence. The importance of international treaties such as the Hague Convention on the Civil Aspects of International Child Abduction and the United Nations Convention on the Rights of the Child (UNCRC) is recognized by the Indian judiciary. But domestic laws that put the child’s welfare ahead of the parents’ legal rights, such the Guardianship and Wards Act of 1890 and the Hindu Minority and Guardianship Act of 1956, are the main source of authority for the courts.
Submitted By
Diya Miraj
Amity University Dubai