Maharashtra National Law University, Aurangabad

Private International Law Project

On

Cross-Border Child Abduction: Indian Perspective

Submitted By:

SOUMIKI GHOSH

Roll No. 2018/BALLB/10

[B.A. LL.B (H). 4th Year, VIIth Semester]

In

October, 2021

Under The Guidance Of

Ms. Soumya Rajsingh

Asst. Professor of Law

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DECLARATION

I hereby declare that the work reported in the B.A.LL.B (Hons.) Sem VII Private
International Law Project entitled ― “Cross-Border Child Abduction: Indian Perspective”
submitted at Maharashtra National Law University, Aurangabad is an authentic record of my
work carried out under the supervision Ms. Soumya Rajsingh ma’am. This work has not been
submitted for any other degree or diploma. I am solely responsible for the information
contained in my Project Report. This work has not previously been submitted to any other
university, and it is not copied from any book or website.

SOUMIKI GHOSH

2018/BALLB/10

Maharashtra National Law University, Aurangabad

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INDEX

TOPICS PAGE NO.

Introduction 4
Significance of the study 5
Importance of the topic 5
Objectives of the study 5
Methodology 5
Scope and Limitations of the Study 5
Subject Matter 6-12
Bibliography 13
List of Cases 14

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INTRODUCTION

The problem of Child Abduction arises between spouses having a strenuous relationship
which is on the verge of breakdown. In most of the times, the child is often taken to a different
country by their mother or father and the clash between them for the custody of the child
becomes a problematic affair which affects the child and the parents, the former more than the
latter. Nothing could be more damaging to an orderly system of family law than if a parent,
having received an unfavourable judgment in Country A, simply removed a child to Country
B, in the hope of securing a different judgment. Such conduct is objectionable for four
reasons: (a) in such disputes, there is a natural tendency for the courts of Country A to regard
their legal system as superior; (b) abduction leads to a degree of instability and lack of
continuity that is damaging to the proper development of the child; (c) if the court orders of
Country A can be so easily flouted a rational system of family dispute resolution is frustrated
and the rule of law is undermined; and (d) if abduction were allowed to flourish, then it is
highly unlikely that any legal dispute would ever be satisfactorily concluded. For these
reasons, considerable efforts have been made in the last two decades to secure international
co-operation in matters concerning the custody of children. In respect of matters concerning
children in private international law, three areas require consideration: (a) the circumstances in
which a country’s court is can exercise jurisdiction; (b) the law to be applied; and (c) the
recognition and enforcement of judgments and orders given by a foreign court.

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SIGNIFICANCE OF THE STUDY

The study is helpful to understand the concept of cross-border child abduction from Indian
perspective. It analyses the exceptions and applications of the international conventions and
analyses relevant judicial proceedings.

IMPORTANCE OF THE TOPIC

The topic emphasizes on the necessary situations for applications of cross-border child
abduction laws and the importance of introducing newer laws. It talks about how India is
dealing with these cases as custody matters being a non-signatory of the international
conventions.

OBJECTIVE OF THE STUDY

The objective is to explore, understand and elaborate the applicability of the rules and laws of
cross border child abduction from international and Indian perspective. It also tries to explore
how the laws are applied by the courts of signatory and no-signatory nations giving the
welfare of child utmost importance.

METHODOLOGY

The research is descriptive and qualitative. The techniques comprised of utilizing different
textbooks, journals, research papers, database and websites. Various books on Private
International Law helped to understand the topic and enhance the conceptual knowledge.
Secondary and Electronic resources have been used to gather information and data. The
research also relied upon the landmark verdicts of the judiciary of different countries.

SCOPE AND LIMITATIONS OF THE STUDY

The study focuses on the Indian and International Perspective of cross-border child abduction
laws but does not establish a comparison between the signatories and non-signatories.

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THE PROBLEM OF ABDUCTION

In the leading case of McKee v McKee,1 the Supreme Court of California had awarded custody
to the mother. Without consent, the father took the child to the Province of Ontario. The
mother began habeas corpus proceedings to have the child returned. The trial judge, with
whom the Court of Appeal agreed, after investigating the merits, came to the conclusion that
the child would be better with his father. This judgment was set aside by the Supreme Court of
Canada. The Privy Council reversed the judgment of the Supreme Court of Canada and
restored the ruling of the trial judge. In giving the judgment of the Privy Council, Lord
Simmonds had no doubt that the central question was the welfare of the child and that the
discretion of the trial judge should not be lightly set aside and he set out the position clearly:

“Once it is conceded that the court of Ontario had jurisdiction to entertain the question of
custody and that it need not blindly follow the order made by a foreign court, the consequence
cannot be escaped that it must form an independent judgment on the question, although, in
doing so, it will give proper weight to the foreign judgment … It is the law … that the welfare
and happiness of the infant is the paramount consideration in questions of custody… To this
paramount consideration all others yield. The order of a foreign court is no exception …”2

It was, therefore, the duty of the trial judge to act in the interests of the welfare of the child. If
the foreign order had recently been given and there had been a flagrant breach, then immediate
return might be ordered but, in other cases, the court might hold a full hearing with cross
examination upon affidavits before reaching a determination as to what was in the best
interests of the child. The case law in the 1960s and 1970s indicated that the trial judge was to
act in the interests of the child and that the element of kidnapping was no more than one
consideration to be weighed in the balance.3

1
[1951] AC 352.
2
Ibid, pp 364, 365.
3
Re P (GE) [1965] Ch 568.

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THE INTERNATIONAL ASPECT

The main problem in respect of child abduction is when a parent resident of a country took a
child abroad without authority or where a child was brought to some part of a country in
flagrant defiance of a court order. Such a problem could only be solved by international co-
operation between States.

The Hague Convention on the Civil Aspects of Child Abduction 1980

There are now nearly 50 Contracting States to this Convention. The broad objective of the
Convention is to prevent the unlawful removal of children from their place of habitual
residence. In consequence, the Convention applies whether or not a court order has been
made.

The Convention operates where a child who is habitually resident in one Contracting State is
wrongfully removed or retained in another contracting State.4 The Convention requires each
Contracting State to establish a Central Authority to enable that State to perform its
obligations.

The Convention applies where a child is under the age of 16 and is habitually resident in a
Contracting State.5 The Convention protects the rights of custody attributed to a person or
institution, whether exercised solely or jointly, provided those rights are being exercised at the
time of the removal or retention. 6 The rights to custody may arise by operation of law or as a
result of a judicial or administrative decision. 7 The right may be simply the right to consent to
the child being taken abroad.8

The broad scheme is that, where a child has been removed from Country A, a person with
custody rights may apply with the appropriate documentation to the Central Authority of
Country A, seeking the return of the child. 9 If the Central Authority of Country A has reason
to believe that the child has been taken to Country B, then it will contact the Central Authority
of Country B,10 who will then be under a duty to take all appropriate measures to secure the

4
Hague Convention 1980, Art 3.
5
Ibid, Art 4.
6
Ibid, Art 3(a), (b).
7
Ibid, Art 3.
8
C v C (abduction: rights of custody) [1989] 1 WLR 6542.
9
Hague Convention 1980, Art 8.
10
Ibid, Art 9.

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return of the child. In the first instance, this will involve persuasion but, failing this, it will
entail legal proceedings before the courts of Country B.11

The European Convention on the Recognition and Enforcement of Decisions Concerning

the Custody of Children and on the Restoration of Custody 1980

The European Convention on the Recognition and Enforcement of Decisions Concerning

Custody of Children and on the Restoration of Custody was signed on 20 May 1980. With
nearly 20 contracting States, the Convention operates within a narrower geographical scope
than the Hague Convention. Unlike The Hague Convention, which operates to protect custody
rights, the European Convention only applies where there has been a decision on custody by
the courts of a contracting State. The Convention applies in respect of children aged under
16.12 All the States who participate in the European Convention (except Belgium) are also
contracting States to the Hague Convention.

The operation of the European Convention has many features in common with that of the
Hague Convention, with each contracting State being required to establish a Central Authority
to administer the Convention. The list of the exceptions is longer than in the Hague
Convention and, although the European Convention expressly states that a decision shall not
be reviewed as to its substance, there is a danger that the exceptions may be used to re-open
matters already determined by the foreign court.

The Hague Convention requires a wrongful abduction but does not require a foreign custody
order. The European Convention requires a custody order, contains machinery for registration
and enforcement, but does not require a wrongful abduction. Having regard to the wider
geographical scope and the absence of the need for a court order, cases under the Hague
Convention tend to come before the courts more frequently than those under the European
Convention. Orders in respect of access can be registered and enforced under the European
Convention, while the provision in Art 21 of the Hague Convention simply requires the
Central Authority to act ‘to promote the peaceful enjoyment of access rights’. Such a duty
may arise in public law but has been interpreted as not creating rights enforceable in private
law.13

11
Hague Convention 1980, Art 10.
12
European Convention 1980, Art 1(a).
13
Re G [1993] 1 FLR 669.

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INDIA AS A NON-SIGNATORY
Amidst all the pressure faced by India, it still remains a non-signatory of the Convention and
the reasons mostly dwell on the point of women being abused or being stuck in a bad
marriage and losing control of situations mandating the return of child. India’s slow judicial
system favours the abductor to create facts and in the meantime the child gets adapted to the
Indian life which becomes another reason to deny the return of the child. The Convention just
concentrates on the return of the child and is more child welfare centric than being parent
centric. It does not devolve into marital status of the child’s parents, unlike the way it has
been handled in India.
India is not a signatory to the Convention and it does not have a law or a judicial forum to
treat parental abduction as an offence or to register a complaint, therefore it becomes a battle
of custody. In cases where one parent restricts the other from having access to the child, or
takes away the child to another country, India becomes a safe place for the parent taking
advantage of the absence of law.
As with any international treaty, certain provisions within the Hague Convention have been
met with reservations by UN member states. However, perhaps more importantly, courts of
some non-signatory states, have introduced measures to tackle cross-border child abduction
with the child’s best interest made a key consideration in judgement. Parents caught in such a
predicament can be slightly more assured that there are solutions available in ensuring the
safe and swift return of their child.
In Indian Constitution cross-border child abduction cases are regarded as custody cases,
implementing certain procedures to help parents whose children have been abducted to India.
Article 226 of the Indian Constitution allows parties to submit petition to the High Courts to
issue a writ of Habeas Corpus (a court ordering summoning both the abducting parent and
child) against the abducting parent.
Though it has not been defined in the Convention, The Civil Aspects of International Child
Abduction Bill, 2016 did give certain elements in situations where the child lived with both
or one parent or another individual. The 2016 Bill was India’s step towards integrating the
principles of the Convention where in, the Bill upheld certain fundamentals including
custody, and right of access etc. with child abduction in the international perspective.
Problems in the Bill which could have been resolved but were not taken care of14 are:

14
Anil Malhotra and Ranjit Malhotra, 'To Return or Not to Return: Hague Convention v Non-Convention
Countries' (2017) 2017 Int'l Surv Fam L 129.

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  Application to the children taken away or from India without discrimination could be
clarified.
 Qualifications, Appointment etc. of the members of the Central Authority could have
been clarified.
 Without having a separate bench for family law, the need for specialists’ judges
would be required to deal with the Convention’s proceedings.
The Protection of Children (Inter-Country Removal and Retention) Bill, 2016 clarified
that states need to have effective respect to other states and should assist, encourage, and
cooperate in return of the child. “Best interest of the child”, “habitual residence”, “rights of
custody” and role of central authority with a provision of appeal were considered and revised.
The most notable feature is that, “domestic violence as per the Protection of Women from
Domestic Violence Act, 2005” has been recognized as an exception to the return of a child
and a period of 60 days has been fixed for making arrangements to return the child. When it
comes to the Indian Judiciary, The Guardians and Wards Act, 1890 which primarily deals
with the guardianship and custody of a minor in India gives jurisdiction to the district court of
a minor’s ordinary residence to entertain matters under it. The Judiciary has dealt with the
foreign orders dealing with the return and custody of child in a case-to-case. On certain
occasions, it has upheld the principle of comity of courts or the provisions of law and in
others, the best interest along with the country’s jurisdiction having the closest and intimate
connection with the child.15 The inconsistency impacts the psychological, physical,
emotional, and behavioural aspects of a child who is left at the mercy of the judge deciding
the matter.

CONCLUSION & SUGGESTIONS

15
V Ravi Chandran v UoI 1 SCC 174 (2010), Surya Vadanan v State of Tamil Nadu 5 SCC 450 (2015).

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It is time that India signs the Convention because having no law in place; the situation is
being taken advantage upon, which is also evident from various reports, specifically the Law
Commission Reports. It also makes the judiciary dependent on their own interpretation of the
situation and resulting in often been misguided by irrelevant facts and circumstances. This
situation can be backed by the 218th Law Commission Report. The Report highlights the lack
of uniformity while adjudicating similar kind of matter. As India has been trying to approve
of domestic laws to bring it in parity with the international perspectives on Child Abduction,
signing the Convention can be a great step towards it. The idea of the Convention is to
provide a safe place for a child to grow and be a responsible citizen of their country.
Returning of the child should not be confused with giving the custody to the other parent as
both the matters are completely different and are to be adjudged differently. The
misconception that exists that if India signs the Convention it won’t have any say when it
shall be a requested country in returning of the child should be first done away with. India, or
by matter of fact any country which is requested for the return of a child, will have a say in
such order by means of citing the exceptions which are available under the Convention itself.
There is a reason why the term “requesting” and “requested” has been prefixed with state. It
is to connote that the order of return of the child to the requesting country is not mandatory
and is subject to speculations by the requested state.
Some suggestions are:
i. India should have a law which deals with parental child abduction and must not be
a place of forum shopping.
ii. Clear out the misconception that by signing the Convention, India won’t have any
say while returning the child, should be done away with. Awareness should be
spread regarding such misconceptions and make understand the general public the
features of the Convention.
iii. It should be kept in mind that it is not a woman benefiting Convention but rather a
child centric Convention.
iv. Return of child under this Convention should not be confused with the concept of
custody.
v. It should be the duty both of requesting as well as requested country to ensure safe
return of the child as well as the parent to the country of his/her choice without
facing any prosecution.
vi. Such transfers must be done responsibly keeping fully in mind the wellbeing of
the child and not to be corroborated with other irrelevant circumstances or facts.

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 vii. A proper uniform definition for habitual residence or ordinary residence should be
set so that there won’t be ambiguities in the legal frontier as such ambiguities shall
result in inconsistencies in deciding cases.
viii. A strong mechanism along with appropriate checks and balance mechanism must
be in place.
ix. A judge should head the central authority which shall be established under this
Convention that will accept all requests on parental child abduction and ease out
the return and exchange process and also can look into the point of law along with
the best interest of the child.

BIBLIOGRAPHY

12
  O’Brien, John, Conflict of laws – 2nd ed., 1999, Cavendish Publishing Limited.
London, Sydney.

LIST OF CASES

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 McKee v McKee [1951] AC 352
 Re P [1965] Ch 568
 C v C (abduction: rights of custody) [1989] 1 WLR 6542
 Re G [1993] 1 FLR 669
 V Ravi Chandran v UoI 1 SCC 174 (2010)
 Surya Vadanan v State of Tamil Nadu 5 SCC 450 (2015)

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