INTER-PARENTAL CHILD REMOVAL-THE DARK SIDE OF THE MOON

•       Considering , Cross-border unions between 1.2 Billion Indians about 30 million non- resident Indians (NRI’s) living in 130 nations abroad and the fact that India in itself is spread over 3.28 million sq. kilometers over 28 States and 7 Union Territories, has created an immense potential for unresolved inter-parental child custody conflicts within and outside India.

•       As a result of broken cross-border marriages, multi-jurisdictional matrimonial disputes and enforcement of custody orders of foreign courts, Non-Resident Indian parents remove their children to India or to foreign jurisdictions either in violation of a foreign court custody order or in infringement of the other spouse’s parental rights.

•       The Hague Convention , a multilateral treaty developed by the Hague Conference on Private International Law ; provides an expeditious method to return a child taken from one member nation to another.  Proceedings on the Convention concluded 25 October 1980 and the Convention entered into force on 1 December 1983. It currently has 80 nation members world wide. India not a signatory to the Hague Convention

•       The Convention was drafted to “insure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.” 

•       The Convention seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for the rights of access.” 

•       The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.

•       “Inter-parental child abduction” is neither defined nor is it an offence under any statutory law in India. Hence, it is extremely difficult to prove or establish child removal at the hands of a parent who is a natural guardian of the child.

•       The most expeditious remedy is to seek a Writ of Habeas Corpus from the High Court or the Supreme Court for return of custody by a parent on the strength of a Foreign Court order or violation of parental rights. However, it is at times extremely difficult to establish custody rights in this remedy.

•       The alternative remedy is to seek guardianship proceedings under the Guardian and Wards Act, 1890 by leading evidence and placing all cogent material on the record before a Guardian Judge. Process is cumbersome, tedious and time consuming. May be difficult and slow for a foreign parent.

•       In 1984, in Surinder Kaur Vs. Harbax Singh Sandhu & in 1987, in Elizabeth Dinshaw Vs.Arvind M. Dinshaw, the Supreme Court exercising summary jurisdiction returned the removed minor children to the foreign country of their origin on the basis of foreign court custody orders.

•       In 1998, in Dhanwanti Joshi Vs. Madhav Unde & in 2000, in Sarita Sharma Vs. Sushil Sharma, the Courts have favored keeping the child’s welfare and best interests in mind over all other aspects. Accordingly, Foreign court orders became only one consideration in child custody disputes which were to be decided on the merits of each case without any summary return.

•       In 2010, in V. Ravi Chandran Vs. UOI and again in 2010 in Shilpa Aggarwal Vs. Aviral Mittal, the Supreme Court in Habeas Corpus petitions directed the summary return of children to USA and UK respectively leaving all aspects relating to child welfare to be investigated by Courts in the foreign jurisdiction.

•       In May 2011, in Ruchi Majoo Vs. Sanjeev Majoo, in an appeal, in a Guardian and Wards petition, the Supreme Court has directed that the proceedings for deciding custody rights shall go on before the Guardian Judge at Delhi and till then the interim custody shall be with the mother. The father has been given visitation rights.

Why should India be interested in joining the 1980 convention

•          India is no longer impervious to international inter-parental child removal

•          The present situation plays into the hands of the abducting parent

•          The offending parent at times usurps the role of the competent Court

•          India’s non-signatory status has a negative influence on a foreign Judge who declines a parent from taking the child to India fearing non-return.

•          The Convention avoids the problems that may arise in Courts of different countries who are equally competent to decide such issues

•          The best possible solution would be to become a signatory to the Hague Convention and enact a Indian International Child Abduction Law and create a Central Authority for liaison and for seeking adjudication before designated existing Indian Courts to resolve such disputes to decide summary return or to render decisions on merits. In the interest of children, the stalemate must end.