India: Inter-country Parental Child Removal and the Law

Of 1.2 billion Indians, about 30 million live abroad in 180 countries. This migration leads to cross-border matrimonial relationships, whose offspring live in foreign abodes but connect with Indian soil through their parent(s). Broken multijurisdictional matrimonial relationships lead to the removal of children to India or foreign jurisdictions in violation of court custody orders or the 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 the country, even though this is a frequent phenomenon in the daily lives of migrant Indians. As a corollary, remedies in law for effective relief are difficult to secure or achieve.

At present, multijurisdictional child disputes often end up in 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 the enforcement of the court order. Time, money and patience run out; a deadlock ensues, and all the while the child is isolated by one parent. Consequently, 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 (the ‘Convention’), enables nations to become signatories and part of a global hub to enable the 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, 94 countries are contracting states to this Convention. Sadly, India is not among them. The 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 the removal of children wrongful if it is in breach of actually exercised rights of custody of a parent, arising by the 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 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 the crossfire, 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: a global platform for resolution to residents of nations who come under it.

Happily, by a communication of 22 June 2016, the Ministry of Women and Child Development (the ‘Ministry’) 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 Convention, it is imperative to have enabling legislation in India to give teeth to the provisions of the Convention. The draft bill provides to designate a central authority and lays down a procedure for ensuring the return of removed children and seeking the return of children wrongfully removed to and from India. The proposed bill, to be renamed the International Child Removal and Retention Bill, 2016, was placed on the website of the Ministry for suggestions and comments by 13 July 2016. Hopefully, after considering views, a final version may find the approval of Parliament to become a codified law, which will enable India to sign the Convention. However, latest statements of Government of India officials in the media indicate that India will not sign the Hague Convention due to domestic violence issues of aggrieved Indian women abroad.

The draft bill was prepared following a reference made by the Punjab and Haryana High Court (the ‘High Court’) to the Law Commission of India and the Ministry to examine the issue and thereafter consider whether recommendations should be made to enact a suitable law on the subject and for signing the Convention. The High Court made this reference when, despite all efforts made by the author as amicus curiae and the Central Bureau of Investigation (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 of the Indian government acceding to the 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’. Until the aforementioned process is complete, much-needed practice directions have emerged in the celebrated decision of the Supreme Court in Surya Vadanan v State of Tamil Nadu (JT 2015 (3) SC 85). This watershed verdict rendered on 27 February 2015 by Lokur J and Lalit J 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’, that is, whichever court is seised 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 child custody litigation; and

• 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 the return of a child to a foreign court.

The aforementioned 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 multijurisdictional child custody disputes. In the absence of any codified law made by Parliament, this precedent has evolved into a developing jurisprudence necessitated by the advent of time to resolve family problems arising out of the migration of a huge Indian diaspora. However, law has still to be codified and given a statutory platform.

The Law Commission of India in Report No. 263 titled “The Protection of Children (Inter-Country Removal and Retention) Bill, 2016 on 17 October 2016 “addresses the concerns relating to children and their parents and makes an attempt to set the stage for India to sign the Hague Convention, 1980.” This effort in suggesting changes to the draft Bill made by the Ministry of Women and Child Development is laudable and salutary. It identifies applicability of the law to all children under 16 years of age retained in India irrespective of nationality, religion or status in India. It carves out an exception to protect a person removing the child who is a victim of “domestic violence”. However, the proposal to impose punishment for wrongful removal or retention, by imprisonment up to one year and /or fine, defeats the very purpose of the proposed law “to ensure the prompt expeditious return of children wrongfully removed or retained” to the country of their habitual residence, is self-contradictory. The Convention vests the prerogative with the country of habitual residence to decide issues of wrongful removal or retention. Hence, imposing punishment by a law in India may be prejudging the issue and will be self-destructive of forging amicable solutions to reunite families where children have been separated.     

India’s accession to the Convention would resolve the issue of inter-country parental child removal because 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 this because the courts of such a 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. This, in turn, is because the environment and living conditions of such home turf where a substantial period of the child’s life has been spent are better suited to determine the welfare of the child. The home state would know better. This step forward may be the start of a happy ending to a long and sad tale.