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Cross Border Removal of Children from Lawful Custody

This Article is authored by Advocate Anil Malhotra.

Of 1.2 billion Indians, about 30 million live in 180 countries abroad. This migration harbours cross-border matrimonial relationships whose offspring live in foreign abodes but connect with Indian soil through their parent(s). Their broken multi-jurisdictional matrimonial relationships lead to removal of children to India or foreign jurisdictions in violation of court custody orders or infringement of the parental rights of the aggrieved parent. Sadly, India does not define or recognise inter-parental child removal as an offence under any statutory law in India, even though this malaise is a frequent phenomenon in daily lives of migrant Indians. As a corollary, remedies in law for effective relief are difficult to secure or achieve.

As of now, multi-jurisdictional child disputes often end up in a stalemate. An aggrieved parent lands on Indian soil armed with a foreign court order to face a protracted, cumbersome, tedious and expensive course of successive multiple appeal litigation to achieve an enforcement of a foreign court order. Time, money and patience run out. A deadlock ensues. The child is split and isolated by one parent. Consequentially, most foreign courts now do not allow children to visit India, fearing that they may not return.

The Hague Convention on the Civil Aspects of International Child Abduction, 1980, enables nations to become signatories and become part of a global hub to enable return of wrongfully removed or retained children by entertaining requests through the office machinery of a Central Authority established by every nation for such purpose. As of 2016, ninety six countries are contracting States to this Convention. Sadly, India is not amongst them. The Hague Convention aims to secure the prompt return of children wrongfully removed or retained in any contracting State and ensures that the rights of custody and access under the law of a party nation are effectively respected in other contracting nations. The Convention considers removal of children wrongful if it is in breach of actually exercised rights of custody of a parent, arising by operation of law or by a judicial or administrative decision or an agreement, having legal effect by the law of that State. It creates an international law implemented through a domestic machinery.

Today, India does not have any exhaustive, uniform and consistent laws to deal with issues arising out of inter-parental cross-border child removal. Indian Courts adjudicate matters with the welfare of the child as the paramount consideration when there is an inter-jurisdictional conflict. The removed child, caught in cross-fire, suffers in silence. India is no longer impervious to international inter-parental child removal and foreign courts now do not permit children to descend on Indian soil, when parents litigate in foreign courts. The Convention resolves this deadlock by offering a wholesome solution and offers a global platform for resolution to residents of nations who come under it.

Happily, by a communication of June 22, 2016, the Ministry of Women and Child Development had uploaded on its website, a proposal to enact a draft of The Civil Aspects of International Child Abduction Bill, 2016, considering that before accession to the Hague Convention, it is imperative to have an enabling legislation in India to give teeth to the provisions of the Convention in India. The draft Bill designates a Central Authority and lays down a procedure for ensuring return of removed children as also seeking return of children wrongfully removed to and from India.

The said draft Bill was prepared following a reference made by the Punjab and Haryana High Court to the Law Commission of India as the Ministry of Women and Child Development to examine the issue and thereafter consider whether recommendations should be made for enacting a suitable law on the subject and for signing the Hague Convention. Justice RajiveBhallahad made this reference when despite all efforts made by the author as amicus curiae and the CBI, a minor child remained untraceable after she was removed from the de jure custody of the Court and taken abroad by misusing an interim order of 2006. Taking on record a detailed report submitted by the author as amicus curiae, the Court had observed in its order that for want to the Indian Government acceding to the Hague Convention or enacting a domestic law, children would continue to be spirited away from and to India, with Courts and authorities “standing by in despair”.

On 3 February 2017, The Ministry of Women and Child Development in a consultation of all stakeholders for reconsidering India’s refusal to accede to the Hague Convention on Civil Aspects of International Child Abduction, has decided that the Chandigarh Judicial Academy along with the NRI Commission of Punjab will furnish a report in four months after examining in detail the legal issues involved by taking all viewpoints into account including those of suffering women facing domestic violence abroad. Reportedly, the academy has recommended constitution of a multimember Committee consisting of Hon’ble Judges and non-judicial members from various Government institutions.

Now, the need of the hour is to ponder and not procrastinate. The principal focus should be on resolving modes and means of securing the best interest and the welfare of the child and not diverting pivotal attention to gender sufferance. In this context, the necessity of developing a jurisprudence of mandatory conciliation and mediation methods inbuilt in Court procedures for adjudication of domestic relations should be the center of attention. The Swiss Federal Act on International Child Abduction and the Japanese Act for implementation of the Convention are extremely beneficial role models to emulate. Closer home, even Pakistan and Sri Lanka who are signatories to the Convention follow simple procedures which are child centric. The proposed Indian legislation can thus look at amicable resolution by mandatory conciliation and mediation procedures with judicial intervention to achieveimmediate voluntary return of children. The hatchet must be buried. The Mediation Rules 2015, provide for qualified and trained expert mediators at all Indian Courts which can aid and assist the process. This ideology, if transposed, may yield far fetched results and needs to be incorporated in a child friendly proposed law.

The Law Commission suggests the terminology of “Protection of Children (Inter country Removal and Retention) Bill, 2016”. To ponder over it, the consultative thought process in motion, must extend beyond Government representatives. Unless view points of family law practitioners, child psychologists, mediators and representative stakeholders of aggrieved parents associations are considered, only one side of the coin will be visible. Women get myriad protection under statutory provisions of the Indian Penal Code, Protection of Women from Domestic Violence Act, Criminal Procedure Code, Marriage / Dowry Laws and by civil remedies of injunctions. Importing such statutory gender protections in a child welfare law will tilt the scales. The best interest of the child will become subservient. Also, what then, for protection of rights of the other sex. Balancing, synchronizing and harmonizing tripartite roles of children, mothers and fathers needs serious thought without compromising the paramount consideration of a child’s needs.

Till the above process is completed, the much needed practice directions have emerged in the celebrated decision of the Supreme Court in Surya Vadananv. State of Tamil Nadu (JT 2015 (3) SC 85). This watershed verdict rendered on February 27, 2015 by Justices Madan B. Lokur and U. U. Lalit laid down salutary principles as follows:

  • The Principle of Comity of Courts and Nations must be respected and the best interest/ welfare of the child should apply in such cases.

  • The Principle of “first strike”, i.e., whichever court is seized of the matter first, ought to have prerogative of jurisdiction in adjudicating the welfare of the child.

  • The Rule of Comity of Courts should not be jettisoned except for compelling special reasons to be recorded in writing by a domestic court.

  • Interlocutory orders of foreign courts of competent jurisdiction regarding child custody must be respected by domestic courts.

  • An elaborate or summary enquiry by local courts when there is a pre-existing order of a competent foreign court must be based on reasons and not ordered as routine when a local court is seized of a child custody litigation.

  • The nature and effect of a foreign court order, reasons for repatriation, moral, physical, social, cultural or psychological harm to the child, harm to the parent in the foreign country and alacrity in moving a concerned foreign court must be considered before ordering return of a child to a foreign court.

The above decision has as of now, set at rest,a five decade string of precedents laid down by courts in India from time to time to evolve a consistent approach in multi-jurisdictional child custody disputes. In the absence of any codified law made by Parliament, this precedent has evolved in a developing jurisprudence necessitated by advent of time to resolve family problems arising out of migration of a huge Indian diaspora. However, law has still to be codified and given a statutory platform.

India’s accession to the Hague Convention would resolve the issue of inter-country parental child removal since it is based on the principle of reverting the situation to status quo ante and on the principle that the removed child ought to be promptly returned to his or her country of habitual residence to enable a Court of that country to examine the merits of the custody dispute and thereupon award care and control in the child’s best interest. The Convention advocates so, because the courts of such country where the child had permanent or habitual residence are considered to be in a better position to determine the best interest of the child as the environment and living conditions of such home turf are better suited to determine welfare of the child where substantial period of his life has been spent. The home State would know it better. This step forward may be a start to a happy ending of a long sad tale.


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