International parental child abduction is the removal or retention of a child outside their country of habitual residence in breach of another parent or guardian’s custody rights.

Introduction

In the past few years, the number of cases involving International child abduction has risen fundamentally. International child abduction  is, tragically, turning into a typical pattern which ordinarily happens during a heated or emotional marital dispute or conjugal debate, in the beginning phases of separation or divorce, or in the holding period of a court custody or agreement.

The term “abduction” conveys a feeling of betrayal according to the point of view of the parent whose kid has been abducted. Nonetheless, how treats other parent who takes the kid with them feel? According to the parent’s point of view, they feel that they should have a real right, as it is their child.

Child abduction

The unauthorised removal of a minor ( a child under the age of legal adulthood) from the custody of the child’s natural parents or logically appointed guardians.

Under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) is a multilateral treaty, which seeks to protect children under the age of sixteen from the harmful effects of wrongful removal and retention across international boundaries by providing a procedure to bring about their prompt return and ensuring the protection of rights of access. (The World Organisation for Cross-border Co-operation in Civil and Commercial Matters, 2021).

Article 3 states that “the removal or retention of a child is deemed wrongful if  it is in breach of custody rights attributed to a person, an institution, or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention”. (The World Organisation for Cross-border Co-operation in Civil and Commercial Matters, 1980) Additionally, it is considered as an international child abduction if at the time of removal or retention those rights have been exercised, or would have been exercised if the removal or retention had not happened. (The World Organisation for Cross-border Co-operation in Civil and Commercial Matters, 1980)

Today, there are 101 contracting State parties to the Hague Convention (The World Organisation for Cross-border Co-operation in Civil and Commercial Matters, 2021), in contrast to the UN Convention on the Rights of the Child 1989 (UNCRC) which is the most ratified human rights treaty in the world (UNICEF, 2021) with 196 parties. This inevitably results into conflict where the parent responsible for the abduction of the child is a citizen of a country that is not a contracting party to the Hague Convention.

The other parent is in a precarious position, as they are unable to use the mechanisms under the Hague Convention to apply for the safe return of their child. This presents courts in many jurisdictions with the difficult task to find an appropriate balance of the competing interests and objectives of both conventions.

Conflict of laws

There is a conflict of laws making it difficult for the courts to determine what the best interest of the child is. There are 41 articles in the UNCRC detailing the different types of rights that children must have in order to develop their full potential (Child Rights Alliance, 2021). Article 3 attracts the most attention as it states that the child’s best interest must be a primary consideration for all actions affecting children (Office of the United Nations High Commissioner for Human Rights, 1989).

The UNCRC additionally stipulates that the child’s best interest’s principle must be the determining factor for specific actions, such as adoption (Article 21) and separation of a child from parents against their will (Article 9) (Office of the United Nations High Commissioner for Human Rights, 1989). The lack of a clear definition of the ‘best interest of the child’ or what makes up a ‘child’s best interest’ provides courts with discretion to interpret this fundamental principle. Despite this principle being highly contested, the importance is widely accepted in the international community (Loo, 2016).

The child’s best interest’s principle is not directly addressed by the Hague Convention other than a line in the Preamble stating, “the interests of children are of paramount importance” (The World Organisation for Cross-border Co-operation in Civil and Commercial Matters, 1980). Additionally, the Hague Convention ignores the principle when making jurisdictional determinations over where the abduction case should be heard, leading to further debate and criticism as to whether the Hague Convention violates the child’s best interests’ requirement under the UNCRC (Loo, 2016). Moreover, the elements stated in the Hague Convention that must be satisfied to file a claim of international child abduction are quite strict.

One of the elements that must be satisfied is the age of the child; the Hague Convention only applies if the child is below sixteen years of age. Even if the child was under sixteen at the time of the wrongful removal or retention, the Hague Convention ceases to apply as soon as the child turns sixteen (The World Organisation for Cross-border Co-operation in Civil and Commercial Matters, 1980).

However, the UNCRC explicitly states “a child means every human being below the age of eighteen years” (Office of the United Nations High Commissioner for Human Rights, 1989). Since both conventions state different ages of children, there is another contentious point which must be revised. With the age threshold set at sixteen years under the Hague Convention, this can be used at the detriment of the child, thus resulting in more cases of international child abduction.

Moving forward for the benefit of children

• A comprehension of the child’s wellbeing and an amicable applications of conventions. Regardless of the responsibilities to the child’s best interest’s principle, there is no clear definition for ” child’s best interest’s” for sure makes up a  child’s best interest’s. The guideline of the  child’s best interest’s assumes an essential part comparable to Children freedoms as a guide to development and a component to be viewed as while carrying out other rights. In this respect, there should be consistency in applying this rule with the Hague Convention.
• More grounded, hearty Central Authorities at the public level. Presently, the job of the Central Authority is to a great extent restricted to helping the left-behind parent in recording the suitable archives to start the cycle for return of or admittance to the kid (Loo, 2016). There is room in the Hague Convention to engage Central Authority by carrying out the Best Interests Assessment (BIA) or Best Interests Determination (BID) investigation as under United Nations Commissioner for Refugees (UNHCR) rules (UNHCR, 2008). This would build up the establishments for a manual for great practice for specialists, which the courts would follow by deciphering the child’s best interest’s.
• Giving mental help to the casualties of Child abduction. Abducted children are at high danger of long haul mental issues including nervousness, dietary problems, bad dreams, disposition swings, rest aggravations, and forceful conduct. Indeed, even as grown-ups, kid survivors of International Child Abduction may battle with personality, relationship, and family issues (The United States Department of Justice, 2021). Furthermore, the Parent’s of the abducted children might encounter injury vicariously with their kids and may battle with their own sensations of ineptitude, culpability, vulnerability, or uncertainty..
• The job of Humanium in Child abduction. Unfortunately, not all parents know nor comprehend the legitimate systems set up to assist them with recover their abducted child. Humanium’s legal helpline and advocacy department furnish distressed parents with solutions. We raise the matter through our organizations made during our advocacy work and deal legitimate help to the parent whose child has been abducted.

International Parental Child Abduction (IPCA)-  In India

International Parental Child Abduction (IPCA) is the removal or retention of a child outside their country of habitual residence in breach of another parent or guardian’s custody rights.

India is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention), and there are no multilateral or bilateral treaties in force between India and the United States intended to resolve IPCA.

Regardless of the extensive International support for the Hague Convention, India passionately remained by its resolution to go against increase to the Convention. India’s hesitance is the consequence of various factors. It was imagined that agreeing to the Convention would obstruct insurance of Indian   and children from troublesome everyday environments and by far most of abductors have been mothers suffering from domestic violence in NRI marriages. Cases chose by the Supreme Court feature the linkage between aggressive behaviour at home and Child abduction. The Convention is gender neutral and doesn’t give help to women who might become abductors in light of the fact that of domestic violence or when the laws connecting to custody are explicitly patriarchal.

Many jurisdictions consider parental child abduction to be a crime.

Section 361 of the Indian Penal Code, dealing with kidnaping, does not envisage a situation where one of the parent could be accused for kidnapping his or her child. They are just considered as civil disputes related with family law. The genuine fear is that assuming the court orders the arrival of the child, the abductor mother may likewise go with the child back to a spot which could turn to criminal sanctions against her, presenting her to serious jeopardy. This fear is unwarranted as the convention regards Child Abduction as a common matter and purviews across the world address the custody issue through the prism of the welfare of the child and has famously preferred non-custodial mothers and considers the gender dimension  aspect connecting it with child welfare.

In O’Donobue v O’Donobue, a father who resorted to re-abduction of the abducted child was imprisoned. Further, provisions could overcome the fear of criminal liability in domestic law,making it clear that criminal liability will not be attracted. India cannot envisage raising a reservation under article 42 of the Hague Convention, as reservation under the Convention is allowed only in regard to articles 24 and 26 dealing with proceduralmatters. The Convention does not allow reservation in substantive matters.

In the Suryavadhan case, while ordering the return of the child to the jurisdiction of British courts, the court specifically ordered Surya Vadanan to ensure that all coercive processes that could result in penal consequences against Mayura Vadanan were dropped or not pursued by him. Similarly, in the Sarita Sharma case, the court held that the chances of the appellant returning to USA with the children would depend upon the joint efforts of the appellant and the respondent having the arrest warrant cancelled by explaining to the court in the USA the circumstances under which she had left with the children without the permission of the court. The case of Japan is in point. When ratifying the Convention, Japan specified several conditions intending to protect its women. Japanese courts would refuse to return the wrongfully removed child in situations such as domestic violence and financial circumstances .

The Surya Vadhan case considered the following aspects for an elaborate inquiry and decision on repatriation:

• The nature and effect of the interim order passed by the foreign court.
• The existence of special reasons for repatriation or non-repatriation.
• The repatriation should not cause any moral, physical, social, cultural, or psychological harm to the child; nor should it cause any legal harm to the parent with whom the child is in India.

This undoubtedly covers situations where an abductor parent faces criminal sanction. The problems arising out of treating child abduction as a crime could be solved by these legislative and judicial initiatives.

Experts who oppose India’s accession to Hague Convention point out that the number of Indian children taken away from India to foreign countries is miniscule, compared to the number of Indian-origin children who have been brought back into India, mostly by mothers.The fact that inbound abductions of the children are greater than outbound abduction from India cannot be a reason for refusing to sign the Convention.

The sceptics have raised concern, especially with regard to the interests of Indian women, related to section 13 of the Code of Civil Procedure (CPC), which states that a foreign judgment need not be recognized if it is founded on a breach of any law in force in India.This fear is overstated, as there are enough provisions in the Convention itself to protect the legal and legitimate concerns of the country.

The Convention provisions dealing with ‘grave risk’ and ‘intolerable conditions’ could be utilized to refuse to return the child to its habitual residence. Once the application to return the child has been rejected, the merits on custody matters could be entertained. In such cases, a foreign custody order could be interpreted and analysed taking into account the public policy exception and breach of statutory law provisions laid down under Section 13 CPC.

India’s major objections to signing the Hague Convention reveal that, rather than looking at the issue from child-centric perspective, the focus is on the rights of Indian woman. However, refusing to return the child to his/her habitual residence will encourage child abduction and deny the child the right to be in direct contact with both parents, as provided in the UN Convention on the Rights of the Child, even in situations where the parent is equipped with a court order.

As a consequence of India’s refusal to accede to the Hague Convention, in Katare v Katare, the court observed that ‘even though there was not any serious threat that the father would abduct the children to India, the consequences of such an eventuality if it occurred would be disastrous and irreversible’, so it imposed severe restrictions on the rights of the father with regard to visitation and travelling with child. This would have the consequences of gradually tearing apart the cultural ties which a child has with his parent’s native place and violates the cultural rights to preserve ones identity under human rights treaties.

Maintaining contact with one’s and one’s parents’ place of origin is instrumental in understanding one’s cultural origins. Legislative restrictions have also been initiated by countries like USA, which view India’s non-accession to the Convention seriously and have taken domestic legal measures in the form of the Sean and David Goldman International Child  Abduction Prevention and Return Act of 2014.

Conclusion

Accession to the Hague Convention should be taken seriously not only for the benefit it provides to India but as a multilateral means of cooperation to protect the interests of children. In the meantime, the government of India could initiate bilateral agreements and take a position that the parent who loses custody be allowed access to the child even if the case is sub judice in the larger interest of the socio-psychological and emotional well-being of the child. India is party to the Convention on the Rights of the Child. However, instead of looking at the CRC as an alternative to the Hague Convention, efforts should be made to harmoniously construe both Conventions and adopt laws to protect children and parents.