Mirror orders for safeguarding rights of children in movement in transnational families was a unique path breaking precedent set by the Supreme Court recently. Thorny legal concerns and convoluted human complications confront fathers and mothers of children in the unchartered jurisprudence of global inter-spouse child removal. When during the 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 the Indian halls of justice are not furnished with codified family laws or, ironically, agile enough under child custody laws to pass orders to coerce the parents into returning the children to their homes in the foreign jurisdictions. It is a legal deadlock. An aggrieved parent equipped with a foreign court order requiring return of the juvenile finds no place in the Indian legal system, wherein a statutory remedy can be brought to play for efficient relief.
The only possible remedy is found under the Indian Constitution by invoking the Habeas Corpus extraordinary writ jurisdiction of a High Court or the Supreme Court. If bitter disputed custody battles need conventional evidence to be established, parties are consigned to a remedy under an ancient legislation i.e. the Guardians and Wards Act, 1890. Natural parents then have to seek resolution of rights of custody, access, visitation and guardianship as a last resort of the testimony of their superior parental rights. The impasse has now soared. Inadvertently, the 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. The flux brings relationship of minor offspring with their doting parents to the 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 Children parked in India are exposed to outdated legal dealings, sans timely effective solutions. India does not have comprehensive codified custody laws to deal with child removal concerns which are thrown open loosely to be adjudged by ordinary courts in the interest of the child axiom. Technical Court procedures, protracted delay, time constrains, an unending legal process and cumbersome mounting legal costs does not help. The stalemate prevails.
In this backdrop, given the large number of cases emerging from transnational parental abduction in inter country marriages, mirror orders are a protective measure of ensuring return of children to the country of their habitual residence. The primary jurisdiction rests in the hands of the Court in the country where the child habitually and permanently resides. If such order is accepted and agreed to be implemented by a foreign court where the child is 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 decisions on the issue of custody rights of the same child in different territories. This principle of public policy is commonly called comity of Courts. The objective of a mirror order is to protect the interest of the minor child in movement from one country to another and to ensure that litigating parents are equally bound in both the countries. A mirror order also safeguards the interest of the parent who is temporarily loosing custody for the benefit of the other parent who wishes visitation in a foreign country. The use of mirror orders is a protective measure evolved by Courts in different countries by giving respective to each other orders for benefit of child rights.
The above protective mechanism was handed down by the Supreme Court in two decisions in 2020 now remain to be a principle to be followed by Courts in the country, when children are in India or taken out of India temporarily. If a mandate of the Indian Court is made a part of a foreign court order, the risk of child removal is minimized. At the same time, it is equally important that Indian Courts also adopt the principle of mirror orders by 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 two way street. Since the farsighted innovation of mirror orders is new to the Indian Courts, it will require the Judicial Academies over the nation to update Judges with this new extension of the principle of comity of Courts for a meaningful implementation. Since India is not a signatory to the Hague Convention on child abduction signed by over 100 countries, this formula is the only workable method for meaningful protection of child rights in actual practice.
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