This Article is authored by Advocate Anil Malhotra.
India’s accession to the Hague Convention would resolve the issue of inter-country parental child removal.
Today, many Indians live abroad, foreign nationals come to stay in India, and Indians who had earlier moved abroad are now moving back to India. Problems arise when children are caught in this migration, when one parent goes to another country, taking the child along, but without the permission of the other parent. What happens to the child who has been abducted? What are his or her rights?
There are several legal issues confronting the issue of transnational inter-spousal child removal. It is unfortunate that when a child is abducted by his or her own parent to India, while custody issues are pending determination in the courts of his or her habitual permanent residence abroad, there is little that local law enforcement agencies can do to remedy the situation. This is because there are no codified family laws or specific child custody laws under which these children can be returned to their homes in a foreign jurisdiction. An aggrieved parent with a foreign court order requiring return of the child finds no slot in the Indian legal system, wherein a wholesome statutory remedy can be invoked for effective relief. Regardless, the Indian legal system provides succour by invoking the habeas corpus writ. Bitter disputed custody battles requiring conventional evidence to be established fall under the outdated Guardians and Wards Act, 1890. Parents then have to seek resolution of rights of access, custody, guardianship and visitation as a last resort of the proof of their superior parental rights.
This dilemma has now worsened with the converse also taking place, which means that children from India are also being abducted abroad and cannot be traced there or legally directed to be returned. When families get split across countries, conflicting child custody litigations are initiated under the separate legal systems of different nations. Ninety-four states are party to the Hague Convention on Civil Aspects of International Child Abduction, which desires “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 rights of access”. India is not one of them. The question of India’s accession to the Convention first came about in 2007, but reached no logical end. Meanwhile, in India, the Civil Aspects of International Child Abduction Bill, 2007, to secure the prompt return of wrongly removed or returned children, lapsed before reaching Parliament.
On June 22, 2016, the Ministry of Women and Child Development (MWCD) uploaded on its website a proposal to enact a draft of the Civil Aspects of International Child Abduction Bill, 2016. This was considered as it was imperative to have an enabling legislation in India before accession to the Hague Convention. The proposed Bill, to be renamed as the Civil Aspects of International Child Abduction Bill, 2016, was placed on the Ministry’s website for comments till July 13. Hopefully now, a final version may find Parliament’s approval to become a codified law.
The proposed Bill considers the removal to or the retention of a child in India to be wrongful if it is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, at a place where the child was habitually resident immediately before the removal or retention. It further stipulates that the removal to or the retention in India of a child is to be considered wrongful where at the time of removal or retention those rights were actually exercised, either jointly or alone, by a person, an institution or any other body, or would have been so exercised, but for the removal or retention.
The draft Bill was prepared following a reference made by the Punjab and Haryana High Court to the Law Commission of India to consider whether recommendations should be made for enacting a suitable law and for signing the Hague Convention. The High Court had made this reference when 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. The court had observed in its order that for want of 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”.
It is important in this context to look at the watershed verdict of the Supreme Court in Surya Vadanan v. State of Tamil Nadu (2015). The court ruled that: one, the principle of Comity of Courts and nations must be respected and the best interest of the child should apply; two, the principle of “first strike”, namely, whichever court is seized of the matter first, ought to have prerogative of jurisdiction in adjudicating the welfare of the child; three, the rule of Comity of Courts should not be jettisoned except for compelling special reasons to be recorded in writing by a domestic court; four, interlocutory orders of foreign courts of competent jurisdiction regarding child custody must be respected by domestic courts; five, 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; six, 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 set at rest a string of precedents laid down by courts from time to time to evolve a consistent approach in multi-jurisdictional child custody disputes. However, law still needs to be codified. India’s accession to the Hague Convention would resolve the issue since it is based on the principle of reverting the situation to status quo ante. It is also based 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. This is because the courts of the country where the child had permanent or habitual residence are considered to best determine the child’s interest.