In this blog post, Sudhanshu Jatav, a fourth-year B.A. LLB (Hons.) student at Gujarat National Law University, Gandhinagar, describes the position of India with respect to child abduction and the Hague Convention.

Introduction

Child abduction. When we talk about Child abduction, we connect it directly to “kidnapping”, that is a basic aspect of it and there are laws dealing with such incidents. The situation becomes much more tricky when international law finds its place into it. So, the problem of Child Abduction that being addressed here occurs mainly between the parents who are divorced or are in the process of getting divorced. Mostly, the divorcing mother or father of the child takes away the child and move to a different country and the battle for that child’s custody becomes an issue which affects not only the parents but largely that child.

To properly deal with this issue, to be more specific, The Hague Convention on the Civil aspects of International Child abduction was signed on October 25, 1980, which came into effect on December 1,1983 having 94 signing parties which do not include India.

Objectives

The scope and the object of the convention were established in Art 1 & 2 of the convention

Article 1 The objects of the present convention are :

• to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

• to ensure that right of custody and of access under the law of one Contracting State are effectively respected in other Contracting State.

Article 2 Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the convention. For this purpose they shall use the most expeditious procedures available.

The above mentioned articles talk about the prompt return because if we want to solve this problem of kidnapping the focus should be on the return of the child to the earlier domicile without any delay and after that the adjudicatory body can get into deciding the proper origin of the Child because the period of time for which the abducted child stay in an alien domicile affects the psychological condition of the child, this issue was properly addressed in the Convention.

Furthermore, it was decided that the convention should apply to the children who are under the age of 16 years. The same is provided in Article 4 of the convention the decision to keep the children who have attained the age of sixteen years out of the ambit of the convention was taken assuming that they cannot be kidnapped or abducted against their own wishes. The age restriction is subject to Article 4 of the convention which only covers those cases where there have been instances of the violation of rights of custody, this violation may include violations of judicial decisions or binding agreements or if any interference is made by a parent in the custody which exists by the power of the operation of law.

This leads us to the question that in a scenario where there exist an order of judicial custody that why would there be a need for a convention ? This is when Private International Law enters the scene and makes everyone’s life difficult, for instance, a person domiciled in U.S have the order for the custody of his child but since we have the concept of ‘Sovereign Nation’, one nation cannot interfere in the law enforcement or the legal system of another nation. Generally, a state’s jurisdiction only extends to its own borders going beyond it will raise the question of breach of jurisdiction hence, it is not binding on another state to recognize U.S court’s order unless a convention like the Hague Convention makes it binding on the state to do so. In these kinds of scenarios, one can see the glimpse of the problems that arise when in the cases of child abduction India is not the part of the convention but more to it at a later stage.

Inclusion of a Central Authority

Article 6 “A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.

Federal States, States with more than one system of law or States having autonomous territorial organisations shall be free to appoint more than one Central Authority and to specify the territorial extent of their powers. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State”

Art 6 of the convention provides for the appointment of a central authority. The established authority will be there to entertain applications regarding the child abduction. It is not necessary that the application is to be filed only with the central authority of the state of origin. The same can be done in any of the central authority of a contracting state for assistance.

Since ultimately the aim is to provide a secure and prompt return of the child any delay the convention under Art 7 asks the central authorities to cooperate with each other and promote co-operation among the competent authorities.

Instances for not returning a child

Art 13 of the draft provides for some grounds, the establishment of any of them can take away a state’s obligation to return the child. If the opposing state can establish that the parent who was earlier having the custody does not have the custodial rights of the child at when the child was removed out of the possession of that parent or that there exists the grave risk of harm to the child either physical or mental.

In situations when the child has attained the age of maturity which is 16 years and is himself/herself opposing the return the court is supposed to take the the child’s view into account. Another point that can be looked into while deciding whether the child is to be returned is looking into the habitual residence of the child.

‘Habitual residence’ in a nutshell is the state where the child has spent most of his time or where the child naturally belongs. For instance, a 10-year-old Indian born who has spent 9 years of his life in America since birth and he was taken to India. Now even though he was born in India his habitual residence will be America.

In the case of Surya Vadanan v. State of Tamil Nadu, 2015, Husband and Wife who were married in Chennai went to England and acquired domicile there. Due to a marital dispute wife came back to India along with the child and filed for divorce, in consequence to that Husband in UK court filed for a writ of Habeas Corpus which was denied by the Madras High Court and laid down grounds for the same which were to first look into the nature and effect of the interim order passed by the foreign court then if there exists and special reason for repatriation and lastly the social and cultural harm that can happen to the child after repatriation.

The court in its discussion found out that the paramount consideration in these kinds of cases should always be the welfare and to decide after looking into the best interests of the child. It was further discussed that in such cases a summary inquiry or an elaborate inquiry to happen to decide that such return will not be harmful to the child.

It was similarly discussed in Art 17 of the Convention which talks about the responsibilities of the administrative and the judicial authorities to look into the reasons for repatriation.

Why hasn’t India yet signed the convention?

Even though there has been a lot of pressure on India to sign the convention but India has managed to be in the club of the  major countries that chose the other road and did not sign the convention. And the reason for not to do the same also are correct to an extent.

When we look into the number of cases where the child ultimately is takes back to India are negligible in numbers comparing to those who were returned back to India. Also when we look at Indian society the structure of the society is such that a woman in a marriage is not in a position to earn a life for themselves. Signing the treaty would mean that the government will have to send back women, who have escaped bad marriages abroad and brought their child along with them to India, back to the country of their father’s residence and stripping them of the protective cover they had in their own country.

On the other hand, the 218th law commission report provides for a reason to sign this convention. When it comes to the Indian judicial system they do not have a uniform pattern to addresses a similar kind of situation similarly all over the country, by signing the convention there will be a central authority established to that can be directly approached to deal with the matters of this nature.Moreover, when it comes to the matters which involves a child of Indian-origin foreign judges dealing with those matters become skeptical while providing the custody to a person who is coming to India.