THE ‘STATUS-QUO’ OF PRIVATE INTERNATIONAL

LAW IN INDIA FOR THE PROTECTION OF CHILDREN

FROM INTERNATIONAL PARENTAL ABDUCTION

PRESENTATION BY – BHAVANDEEP SINGH

ROLL NO. - 20047
 Introduction
- 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, as one of the first nations to sign the United Nations Child Rights Convention1, has been an advocate for protecting
children's rights. However, the country has recently faced criticism and negative attention on the global stage due to its failure to
criminalize parental kidnapping and its decision not to sign the Hague Convention on Child Abduction.
- The primary reason for the increasing number of cases of International Parental Child Abduction (IPCA) is believed to be the
rise in international marriages, which leads to more separations between couples and makes it easier for one parent to take the
child to another country, thereby cutting off contact with the other parent.
- However, some countries, like the USA, have enacted criminal statutes to punish the act of obstructing parental rights. The
"International Parental Kidnapping Crime Act" is an example of such legislation, which treats the abduction of a child by a parent
as a federal felony and a serious offense.

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 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

- The "Convention on the Civil Aspects of International Child Abduction" is an international

agreement designed to protect children from the harmful effects of abduction and
retention in another country.
- To apply the Convention in cases of International Parental Child Abduction (IPCA), it is
necessary for the child to be under 16 years of age, and for the involved states to have
signed the Convention.
- The cornerstone of the Convention is Article 3, which outlines the two most important
aspects for the effectiveness of the Convention: the rights holders safeguarded by the
Convention and the elements of unjustifiable removal or retention.
- Once an application has been submitted under Article 11, the respective court is
obligated to expedite the child's return

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 THE 1996 CONVENTION (REINFORCEMENT OF THE 1980 CHILD
ABDUCTION CONVENTION)
- By ratifying the "1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and
Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996
Convention)," the contracting states decided to update earlier provisions in recognition of the significance of
international cooperation for child protection. This convention aims to compile provisions that have the same
impact as the CRC..
- Convention's uniform rules ensure that the authorities of the country where the child habitually resides
have primary responsibility for taking necessary protection measures, thereby avoiding conflicting decisions
(Articles 5 and 7).
- However, the Convention recognizes exceptional cases where other authorities may be competent, such
as when urgent or provisional protective measures are required in the presence of the child in any
Contracting Party (Articles 11 and 12). The Convention also applies to refugee children and those who are
internationally displaced due to disturbances in their home country (Article 6).

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 INTERNATIONAL PARENTAL CHILD ABDUCTION TO INDIA (CASE STUDY ANALYSIS)

1. Shehzad Hemani vs Nadia Rashid (WP-3367-18(J)

2. United States of America vs Fazal-Ur-Rehman-Fazal

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 LAW COMMISSION OF INDIA (REPORT NO. 218TH)
- The Law Commission had proposed ratification of the Convention in 2009, and the WCD Ministry
had released a draught of the Civil Aspects of International Child Abduction Bill in June 2016 that
incorporated the terms of the Hague Convention.
- An official from the WCD Ministry defended the government's decision not to sign the Hague
Convention on inter-parental child abduction, claiming that signing it would disadvantage Indian
women as more Indian women escape bad marriages abroad and return to India for safety than non-
Indian women leaving India with their children.
- This represents a change in the government's prior policy. According to the draught legislation,
judges would have the authority to revoke custody if the person in charge of the kid was endangering
him or her or failed to properly exercise his or her parental rights. Additionally, it suggested a one-
year prison sentence for any parent or relative proven responsible for unjustly keeping or taking a kid
out of the custody of the other parent.

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 Summary
- The Government of India faced mounting pressure from the UK and USA to change its
approach towards IPCA cases, but this pressure began to ease after the Ministry of Women
and Child Development announced its decision not to ratify the Hague Convention on Child
Abduction in 2017.
- The Ministry claimed that their decision was aimed at protecting Indian women who were
fleeing from abusive marriages abroad and returning to the safety of their home country, which
was the case in a majority of instances.
- The decision by the Ministry to not ratify the Convention for the "protection of Indian
Women" is short-sighted and individualistic
- India has become an easy target for parental abductions, and it is also challenging for an
aggrieved Indian parent to seek justice due to the arbitrary basis of judge decisions, undefined
terms of 'best interest' for custody decisions, and the Indian court's inability to prove/disprove
charges

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Thank you