Help, my child is taken to India!

Cross-border child abduction

Cross-border abduction can be defined as follows: a child is wrongfully removed from a country and brought to another country by one parent (mostly the country of origin of the parent concerned), without the consent of the other parent. Such family disputes mostly arise when marriages break down and the ‘foreign’ parent fears losing the child. 

The Hague Convention

The Hague Convention (1980) — the Hague Convention on the Civil Aspects of International Child Abduction —  is a multilateral treaty that ensures that children abducted to another country are returned to their rightful parent or guardian. Countries that have ratified the Hague Convention, have to align their domestic laws concerning child abduction with their obligations under the Convention.  This means preserve a status quo child custody arrangement that existed immediately before an alleged wrongful removal or retention. The aim is to deter a parent from crossing international borders to find a court that would  rule a custody battle in his/her favour. 

Even though the Convention is a good instrument in the event a child is abducted to a country that has ratified the Convention. However, as of February 2020, only 101 nations have ratified the Convention. Bringing back a child from a non-ratifying country could be a tedious process as the local laws apply (which may or may not be compliant with the provisions in the Convention) and sovereign nations cannot interfere with each other's legal systems, judiciaries, or law enforcement. However, some countries may still give priority to  the child’s  welfare and rights by integrating measures in their own laws to tackle cross-border child abduction. For the treaty to apply, the child must be under the age of 16. 

India 

If your child is taken by your (ex-) partner to India, then you should know that India has not ratified the Hague Convention. The reason for this that many women who marry abroad bring their children back with them. These women often do so to escape an abusive relationship/domestic violence. Ratifying the Hague Convention would only aggravate the situation in such cases. Despite this legal setback, Indian Constitution does treat cross-border child abduction cases as custody cases by incorporating  certain provisions to help parents whose children have been taken to India. Also, the definition of abduction in the Indian Constitution overlaps the definition under the Hague Convention. 

According to the Indian Constitution, parties can file a petition with the State High Court to summon both the abducting parent and child (a writ of Habeas Corpus against the abducting parent). 

One can also see an overhaul of laws that that reflects the overarching aim of the Hague Convention. 

The case law repeatedly stresses the importance of the welfare of the child in abduction cases and has held that the paramount welfare of the children would lie in shared parenting by ordering the return of the children. 

Are you a parent whose child has been ‘abducted’ by the ex-partner and brought to India, then you can be  a bit more assured that it is possible that your child can return to you. 

For more information, please contact Miss Legal India.