This Article is authored by Advocate Anil Malhotra.
Mirror orders for safeguarding rights of children, in movement in transnational families, was a unique path breaking precedent set by Supreme Court recently. Thorny legal concerns and convoluted human complications confront parents of children in unchartered jurisprudence of global inter-spouse child removal. When, during pendency of custody issues in law courts, children are abducted by their own parents from their homes of habitual permanent residence to and from India, there is little that local law enforcement organizations can do to locate the covertly removed children. Even Indian halls of justice are not furnished with codified family laws or, ironically, are agile enough under outmoded child custody laws to pass orders to coerce parents into returning children to their homes in foreign jurisdictions. It is a legal deadlock. An aggrieved parent equipped with a foreign court order requiring return of offspring, finds no place in Indian legal systems, wherein a statutory remedy can be brought into play for effective relief.
The only possible remedy available under Constitution of India, is by invoking Habeas Corpus extraordinary writ jurisdiction of High Courts or Supreme Court. If bitter disputed custody battles need conventional evidence to be proved, parties are relegated to a remedy under an archaic legislation i.e. Guardians and Wards Act, 1890. Natural parents then seek resolution of rights of custody, access, visitation and guardianship, as only choice of testimony of their superior parental rights. The impasse has now soared. Inadvertently, converse realism has also dawned. Children who have habitual permanent residence in India, are also seen to be surreptitiously removed to alien jurisdictions, and cannot either be legally directed to be returned to India, or be traced at all. Child removal is now a two way street. The flux brings relationship of minor offsprings with their doting parents to rock bottom ebb of family bonding, filial security and parental confidence. Families get split across nations and concurrent analogous child custody litigations are commenced under separate legal systems of different nations. Arguments in law rule the roost. Children parked in India are exposed to burdensome legal dealings, sans timely effective solutions. India does not have comprehensive codified custody laws to deal with child removal concerns, which are thrown open to be adjudged by Courts,under welfare of child axiom. Technical Court procedures, protracted delay, time constraints, unending legal processes with cumbersome mounting legal costs does not help. Lockdown stalemate prevails.
In this backdrop, given large number of disputes emerging from transnational parental abduction in inter-country marriages, mirror orders are protective measures of ensuring return of children to country of their habitual residence. Primary jurisdiction rests in hands of Courts in countries where children habitually and permanently reside. If such orders are accepted and agreed to be implemented by a foreign Court where children are temporarily relocated, it is said to be mirrored. In International Family Law, it is imperative that only one Court should take decisions to avoid conflicting judgments on issue of custody rights of same children in different territories. This principle of public policy is commonly called comity of Courts. Objective of mirror orders is to protect interests of minor children in movement from one country to another, to ensure that litigating parents are equally bound in both countries. Mirror orders also safeguards interests of parents who are temporarily loosing custody for benefits of another parent, who wishes visitation in a foreign country. Use of mirror orders is a protective measure evolved by Courts in different countries by giving respect to each others orders for benefit of child rights.
Above protective mechanisms handed down by Supreme Court in two decisions in 2020, now remains a principle to be followed by Indian Courts, when children are in India or taken out temporarily. If a mandate of the Indian Court is made a part of a foreign Court order, risks of child removal are minimized. Simultaneously, in reciprocity, it is equally important that Indian Courts also adopt principle of mirror orders,whilst respecting foreign Court orders concerning custodial rights, by returning children to foreign jurisdictions, when such foreign children are temporarily in India. This innovative judicial mechanism can only work as a dual carriageway. Since farsighted innovation of mirror orders is new to Indian Courts, it will require Judicial Academies over the nation to update Judges with this new extension of principle of comity of Courts for a meaningful implementation. Since India is not a signatory to The Hague Convention on Civil Aspects of International Child Abduction signed by over 100 countries, this formula is the only workable method for meaningful protection of child rights in actual practice, till Parliament enacts a law.