INTERNATIONAL CHILD RELOCATION ISSUES: AN INDIAN PERSPECTIVE

As of March 2025, global Indian diaspora comprising of approximately over 35.42 million individuals, including about 15.85 million Non-Resident Indians (NRIs) and nearly 19.57 million Persons of Indian Origin (PIOs), necessitates evolution of robust legal frameworks to address transnational conflicts within private international law. India’s domestic laws, however, struggle to cope with complexities of cross-border family disputes, including issues such as interparental child relocation, child removal, adoption, matrimonial property division, and “limping marriages.” Lack of comprehensive statutory remedies and alignment with international legal instruments often results in fragmented adjudication, forcing Courts to rely on outdated family law legislations and ad hoc judicial interpretations. Specifically, no statutory codified law governs or prescribes relocation of children from India to foreign jurisdictions. This paper examines contemporary role of international conventions as sources of private international law from an Indian perspective.

An analysis explores key areas where India’s domestic legal regime could benefit from accession to international instruments such as Hague Convention on Civil Aspects of International Child Abduction, 1980 (1980 Convention) and Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement, Co-operation in Respect of Parental Responsibility and Measures for Protection of Children (1996 Convention) Convention on International Recovery of Child Support and Other Forms Of Family Maintenance (2007 Convention). For instance, international parental child removal and and voluntarily relocation remains a critical challenge in India, since no Indian statutory mechanism governs relocation by consent. Likewise, relocation of children by consent to India is not permitted by foregin courts due to lack of an iron clad guarantee of return from India. As a result, Courts often rely on judicial innovations such as mirror orders, parens patriae jurisdiction, and writs of habeas corpus, which attempt to uphold welfare of child while navigating jurisdictional constraints. Hence, as of now, United Nations Convention on Rights of Child (UNCRC) ratified by India on December 11, 1992 and whose beneficial provisions are incorporated in Juvenile Justice (Care and Protection of Children) Act, 2015 hold fort. Section 2(9) of Juvenile Justice Act, 2015 defining “best interest of child” to mean “basis for any decision taken regarding child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development” guides parens patriae jurisdiction of superior Indian Constitutional Courts in enforcing UNCRC for domestic application within India.

International Child Removal, Relocation and Child Support Issues in India

International parental child removal and relocationin India, is an important contemporary legal issue which risks relocated or removed children not being returned to their country of habitual residence because of toperation of various legal systems of countries involved and India not being in alignment with foreign Court Orders. Support is available for those countries which are signatories to 1980, 1996 & 2007 Conventions. However, when a child is removed or relocated between countries which are not part of this global collaboration, it is domestic law of countries to which child has been taken, or in which child has been retained, that will govern issue. This creates uncertainty over whether child will be returned to State of habitual residence, and it is innocent children who suffer in such situations.

Parens Patriae Writ Jurisdiction

Against backdrop of this statutory position, Supreme Court and High Courts in India, in exercise of their extraordinary writ jurisdiction under Articles 32 and 226 of Constitution of India respectively, can issue a prerogative writ of Habeas Corpus exercising jurisdiction as parens patriae in their best discretion to adjudicate upon conflicting claims of parents for relocation, support and welfare of children. Hence, invoking of writ of Habeas Corpus by a non-resident parent for child custody or violation of consensual relocation, on strength of a consequential foreign court custody order is only efficacious, speedy and effective remedy because minor ‘ordinarily resides’ abroad and there is a bar of jurisdiction under GWA for a guardianship petition before a Guardian Judge, and fact that violations of consensual relocation find no statutory definition under GWA.

Decision on Custody/Relocation AL vs. KL, 2021 SCC OnLine 224

In a matter of non-consensual relocation of a child outside India, and upon return to Inida, Supreme Court of India ruled as follows:

•      Family Courts to follow procedure under Civil Code & Evidence Act to determine custody/relocation rights in Guardianship petitions.

•      Adjudication of possible agreed joint shared parenting arrangement in child centric approach to be determined by evidence in Family Court.

•      Relocation of child without Family Court consent not possible.

•      Interparental child removal is not an Indian statutory offence & not recognised by any Indian law. 1980 Convention not acceded by India.

Recent Developments

However, in Nithya Anand Raghavan v State of NCT of Delhi and Another,[1] Supreme Court abolished principle of comity of courts and principle of ‘first strike’ in matters relating to inter-country, inter-parental child custody disputes. Further, in Prateek Gupta v Shilpi Gupta and Others,[2] Supreme Court held that there is no forum conveniens in wardship jurisdiction and welfare of child as paramount consideration. Hence, foreign Court Orders taking notice of violated consensual relocation to India are only one consideration in adjudicating return of children to foreign homes. This in turn is also a big determent for foreign Courts to relocate children to India.

Evolving Use and Utility of Mirror Orders as an Alternative Relocation Mechanism

Typically, mirror orders arise when two Courts in different jurisdictions adopt equivalent custody or protective provisions to ensure consistency and enforceability. However, a Family Court’s ruling does not explicitly constitute a mirror order by itself. Mirror-like nature of orders only becomes evident in subsequent proceedings, particularly through interaction between Indian and a foreign Court.

Maintainability of Habeas Corpus as Parens Patriae to Return Children to Jurisdiction Which Has Closest and Most Intimate Contact

From our reading of consistent position of settled law, it can be concluded that ‘doctrine of jurisdiction of most intimate contact’ has been consistently followed by Supreme Court in upholding exercise of parens patriae jurisdiction in Habeas Corpus petitions filed before High Court for return of children to foreign jurisdictions. This principle has not been deviated, differed, dissented or distinguished.

Exercising of Parens Patriae Jurisdiction for Directing Return of Children

Because of above situation,in child relocation and removal cases, jurisdiction of closest contact to determine welfare of children lies  mostly with foreign Court. High Court in Habeas Corpus petition rightly exercises its parens patriae jurisdiction to undertake an inquiry to reach conclusion that it would be in best interests of minor children to return to jurisdiction with which they have closest connection and most intimate contact.[3] Accordingly, writ petition of Habeas Corpus for return of minor children to country of their original home was maintainable as High Court exercised its parens patriae jurisdiction to examine best interests of minor children and passed directions for their return upon coming to conclusion that it was in welfare of children to return to country of their original home to decide their welfare and best interests.

Balancing Acts: Navigating International Custody Disputes in Indian Courts - Insights from Bombay Judgement and Comparative Legal Perspectives

Bombay High Court  judgement  of 7 February 2024,  in case of Ne v.  A[4], is a landmark ruling that delves into intricate issues of international child custody, application of Hague Convention on Civil Aspects of International Child Abduction, and legal principles governing child welfare across borders. Kudos to Court, in a record span  of 7 weeks ,N was returned to Netherlands by a summary adjudication of a Habeas Corpus petition. This case exemplifies legal challenges and ethical considerations that arise when family law disputes transcend international boundaries, highlighting conflict between national jurisdictions and need for international legal harmonisation to protect best interests of children involved in cross-border custody disputes.

This position underscores a broader tendency within Indian legal practice to navigate international family law issues through its domestic legal framework, rather than through international treaties.Rights of N as a child find expression in Court’s admirable interpretation of Indian law. However, Court’s reference to principles of Hague Conventions in their judgements to uphold best interests of child, indicate an informal acknowledgment of international norms within confines of Indian law.

Judgement in case of Ne v. A reflects this nuanced stance. While India's obligations under Hague Convention are not directly applicable, Indian courts have demonstrated a willingness to engage with underlying principles of Conventions, especially those pertaining to child's welfare. This approach is indicative of a broader trend in Indian private international law, where courts balance respect for international legal principles with imperatives of domestic legal contexts. Domestic Law in motion navigates on international  roads to destination justice for children  -  a Salute to vibrant Indian Judiciary .

Case is a reminder of ongoing challenges in balancing national legal sovereignty with global imperative to protect children's rights and welfare in an increasingly interconnected world. In summary, Ne Judgement of February 2024 is a testament to evolving nature of family law in context of globalisation and international mobility. It highlights complexities of international custody disputes and paramount importance of focusing on child welfare in interse parental legal proceedings.

Cyclical Custody of Incapable Adult in UAE: Y vs. X, 2023:KER:80740, affirmed by Supreme Court on 15 October, 2024

In a very unique case of an incapable adult, access and visitation to mother in India was provided by Court intervention in UAE, where non-consensual relocation had taken place by father. Extending its jurisdiction to UAE, Courts held as follows:  

•      Incapable adult has right to have company of both parents.

•      India based mother appointed guardian has access in UAE.

•      Both parents appointed joint guardians in UAE by Court.

•      Indian Courts have jurisdiction in best interest and welfare, if parent has no legal remedy in Courts beyond Indian territory.

•       Cyclical custody of incapable adult in UAE granted to mother.

This unique alternative exercise of parens patriae jurisdiction was an excellent mode of support, contact, shared parenting by Courts, dehors Hague Conventions.  

India and 1980 Hague Convention Report of Justice Rajesh Bindal Committee 

Ministry of Women and Child Development established a 13-member high level Committee, on 18 May 2017, to examine issues relating to international parental child abduction. Model legislation was suggested to safeguard interests of parents and children both within India and beyond its territorial borders. Proposed legislation drafted by Committee, Protection of Children (Inter-Country Removal and Retention) Bill 2018, defined, for first time, wrongful removal or retention of children as an act that breached rights of custody actually exercised before such violation occurred by a natural parent, by reason of a judicial order, operation of law or an agreement.

Notwithstanding outstanding efforts of those involved, Bill did not become law and India currently remains a non-Convention country. Evolving mirror order jurisprudence in child custody matters in India, under which US Court passed mirror order directions to comply with judgment of Delhi High Court, may be a possible way forward to establish a precedent for return of children to their homes of foreign jurisdictions. This mirror order formula, evolved by judicial mechanisms through far-sighted wisdom of Indian courts, aims to ensure best interests and welfare of children, as well as to provide them with a family life encompassing love, care and affection of both parents.

Conclusion

In ultimate analysis, concept of “lawful” cross border relocation to and from India to foreign jurisdictions, does not find statutory recognition under Indian statutory laws as both parents are natural guardians with equal parental rights. Parental Child Removal is not a wrong under current codified Indian laws. Hence, even violation of any consensual relocation does not find recognition  under any visualised definition of child removal in India. It may find favour in a Habeas Corpus petition under Constitution of India as a discretionary relief in parens patriae extra ordinary jurisdiction, in best interest and welfare of child in wisdom of High Court/ Supreme Court, in facts and circumstances of a case. However, there is no Indian statutory or codified law to relocate children to foreign jurisdictions . Mechanisms of 1980, 1996 & 2007 Conventions are not available in India.  Likewise, India has no legislative procedure to guide or govern relocation of children to India, if there is no return of a child to India from a foreign jurisdiction. Further, not being a party to 1980, 1996 & 2007 Conventions, there is no legal procedure prescribed  in Indian law to approach authorities in foreign jurisdictions to return children to India. This in turn is a very big deterent for relocation of children to India  shifted either by parental consent or by foreign Court Orders, since there is no assured return of children from India to foreign jurisdictions. In such a situation, India is a stand alone jurisdiction in which concept of “lawful” cross border relocation is not a codified concept.Even “wrongful” reloation defies definition. Hence, lawful cross border relocation is only a consensual arrangement between private parties, dehors any statute.. But due to its pitfalls on violation, even “lawful” relocation, is a rarity in practice. Therefore, unless  and until India accedes to 1980, 1996 & 2007 Conventions, process of lawful cross border  consensual relocation with a defined mechanism of return will remain unresolved. Accesion to Hague Conventions, preceeded by India enacting domestic legislation to incorporate beneficial provisions of Hague Conventions, is only possible permanent lawful solution.

ADVOCATE, ANIL MALHOTRA, IAFL FELLOW, L.L.M. (LONDON)*

Secretary, IAFL International Child Relocation Committee.       

E-mail: anilmalhotra1960@gmail.com

Website: https://www.anilmalhotra.co.in

https://carefulchildrelocation.com/india-5/

ANKIT MALHOTRA, ADVOCATE, L.L.M (LONDON), FELIX SCHOLAR**E-mail: ankitmalhotra97@gmail.com

Website: https://www.ankitmalhotra.co.in/

[1] Nithya Anand Raghavan v State of NCT of Delhi and Another AIR 2017 SC 3137.

[2] Prateek Gupta v Shilpi Gupta and Others 2017 SCC Online SC 1421.

[3] Surinder Kaur Sandhu Vs. Harbax Singh Sandu, 1984 (3) SCC 698

[4] Ne v. A, 2024 NCBHC-AS 5998 : 2024 ALL MR(Cri) 1044