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October - November 2009


India’s dilemma on inter-parental child removal

by Anil Malhotra

Of over 1.1 billion Indians, about 30 million non-resident Indians constituting the largest diaspora in the world live in 130 nations abroad. India itself is spread over 3.28 million square kilometers over 28 States and 7 Union Territories. These high number and volume statistics show immense potential for free cross border movement of non-resident Indians. This conversely has given rise to new dimensions of inter-country family oriented disputes. Inter-Parental Child Abduction is one such emerging problem which defies legislative solution in India. Unresolved inter-parental custody conflicts of children have recently generated parallel conflicting legal proceedings in different jurisdictions without any resolution at either end.

Group photo of judges from 22 jurisdictions at the Cumberland Lodge Conference

Inter-Parental Child Removal is not defined in any Indian legislation and is not specified as an offence under any statutory law. The problem is compounded by the fact that India is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction, 1980, which is signed by 80 countries worldwide. Hence, inter-parental child custody conflicts are invariably decided by Indian Courts on the principle of the welfare of the child as the paramount consideration and the best interest of the child. The prerogative writ of Habeas Corpus as a expedient remedy is thus invariably invoked being the most effective, emergent and efficacious remedy to a distressed parent whose child has been removed to India from foreign borders. The foreign court custody order forms the basis of invoking this extra-ordinary constitutional remedy.

A case law analysis reveals that till 1997, Indian Courts invariably exercised a power of summary return of a removed child to the country of habitual residence in compliance with a foreign court order to restore parental rights of an aggrieved parent. However, from 1998 onwards, the Supreme Court has held that a custody order of a foreign court shall be only one consideration while determining the matter on merits where the welfare of the child principle will be the clinching factor. Resultantly, whenever any Habeas Corpus petition seeks summary return of a child to a foreign country and the Court opines that it requires determination by requiring evidence to be led by warring spouses, parties are relegated to conventional court custody proceedings. A protracted, time-consuming and tedious custody petition results and the unfortunate removed child is fought over as a trophy to be won in a battle of egos of litigating parents. Sometimes, the love and affection of an isolated child is monopolized by one parent to such an extent that the tender mind of a alienated child gets permeated with ill-will towards the other parent who for no fault has even access to his loved one.

L to R: Ranjit Malhotra, Justice Ramday with grandson, Anil Malhotra, Justice Bryant, Hannah Baker & Justice Jillani

The world is a far smaller place now than it was a decade ago. Inter country and inter continental travel is easier and more affordable than it has ever been. The corollary to this is an increase in relationships between individuals of different nationalities and from different cultural backgrounds. Logically, the world in which we and our children live has grown immensely complex. It is filled with opportunities and risks. International mobility, opening up of borders, cross-border migration and dismantling of inter cultural taboos have all the positive traits but are fraught with a new set of risks for children caught up in cross border situations. Caught in cross fire of broken relationships with ensuing disputes over custody and relocation, the hazards of international abduction loom large over the chronic problems of maintaining access or contact internationally with the uphill struggle of securing cross frontier child support.

With the increasing number of non-resident Indians abroad and multiple problems arising leading to family conflicts, inter parental child removal to India now needs to be resolved on an international platform. It is no longer a local problem. The phenomenon is global. Steps have to be taken by joining hands globally to resolve these conflicts through the medium of Courts interacting with each other. Till India does not become a signatory to the Hague Convention, this may not be possible. A time has now come where it is not possible for the Indian Courts to stretch their limits to adapt to different foreign Court Orders arising in different jurisdictions. It is equally important that to create a uniform policy of law some clear, authentic and universal child custody law is enacted within India by adhering to the principles laid down in the Hague Convention. Divergent views emerging at different times may not be able to cope up to the rising number of such cases, which come up from time to time for interpretation. We in India are thus wanting for an expeditious acceptance and implementation of the International principles of inter-parental child removal which are couched in the Hague Convention.

Today, removal of children across borders has also acquired a dual carriageway dimension. Earlier, cases of foreign children brought to India against parental consent were common citations. Now, the reverse is also true and child removal from India makes it a two way street. However, how would Indian Courts deal with situations when Indian children were removed to foreign jurisdictions in violation of local court orders or parental wishes? Which law would apply and how would it extend to a foreign country? Clearly, there is no international law instrument that can be invoked and the only remedy with the aggrieved parent would be to invoke the national law of the foreign country where the child is wrongfully retained. Easier said than done. Visa formalities, traveling expenses, litigation costs and, above all, foreign court procedures would be insurmountable deterrents. It seems the problem defies solutions and workable remedies.

At the International Family Justice Judicial Conference for Common Law and Commonwealth Jurisdictions 2009 held at Cumberland Lodge, England from 4-8 August 2009, about 70 Judges and jurists from 22 jurisdictions seriously deliberated on the above issue and its related consequences in a global perspective. The author, as the only lawyer participant, presented the Indian perspective. In the conclusions and resolutions of this exclusive conference, it was unanimously resolved that a Common Law and Commonwealth Judicial Network be established forthwith to facilitate processes of implementing international instruments involving international family and child protection. The endeavour to encourage States to ratify the Hague Convention and provide assistance to left-behind parents in non-convention countries was also endorsed. Providing mediation in cross-border child abduction disputes and the search for common principles to be applied in the Judicial Resolution of relocation disputes in the best interest of children internationally found acceptance to all. The need for a Judge hearing a return application to consider the child’s objection to return, grave risk of harm or intolerable situation and settlement of a child in a new environment was viewed with favour. Lord Justice Matthew Thorpe, Head of the International Family Justice for England and Wales and Judge Court of Appeal concluded the meet by stating that the baton had to be passed on to a new jurisdiction, who would be the host after a gap of three years.

Be that as it may, the universal solution to both domestic and international problem of our global NRI community in the matter of inter-parental child conflicts cannot be resolved on a universal platform until India becomes a part of the global family of contracting countries who are signatories to the Hague Convention. There was an Indian endeavour to do so by framing of a Civil Aspects of International Child Abduction Bill, 2007. But, alas, it was never tabled before Parliament and it never saw the light of the day. India cannot be a beneficiary of an international conclave unless it joins the table with the convention countries by acceding to the Convention. We now need a new synergy, a motivated effort and a commitment to the cause of the removed child to shape a law to prevent the unfortunate removal of children. The child should not suffer. A law must be put in place forthwith for the cause of the child.

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