International parental child abduction occurs when a parent or guardian removes their child from their home country without the consent of the other parent, guardian, or court authorization. According to the 118 th report of the Law Commission of India, International parental child abduction or removal can be defined as “the removal of a child by one parent from one country to another without the approval of the other parent. Child removal, in this context, encompasses an interference with the parental rights or right to contact with the removed child.”1 These instances of a parent taking a child away and then facing legal challenges have historically caused a lot of confusion, particularly regarding which courts have the authority and capability to address such cases.2 Most nations treat child abduction with severity, but the act of a child being taken across international borders by one of their parents is regulated by a set of laws that is somewhat unclear and open to interpretation.
The act of illegally taking a child and keeping them away not only harms the other parent significantly but can also negatively affect the overall growth of the child. Furthermore, this wrongful action of taking and keeping the child away might blatantly ignore or defy the court’s rightful custody order for the child. Given this context, numerous countries have established punitive measures for such wrongful abduction and retention of children.3
The international community acted to solve this crisis by adopting, on October 25, 1980 an International Convention on the Civil Aspects of International Child Abduction which came into force on December 1, 1983. This Convention seeks to protect children from harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. 4Article 1 of the Convention itself provides its objective, that, it is intended to enhance the international recognition of rights of custody and access arising in the place of habitual residence, and to ensure that any child wrongfully removed or retained from that place is promptly returned. 5Each signatory country appoints a Central Authority responsible for assisting in the implementation of the convention. These authorities facilitate communication and cooperation between countries involved in abduction cases. 6There are limited exceptions under which a country may refuse to order the child’s return. These include cases where there is a grave risk of harm to the child’s physical or psychological well-being in the country of habitual residence, or if the child is old enough and has a strong objection to being returned. While the main objective is to ensure prompt return, the child’s well-being and safety are considered paramount.7
Over 100 nations, including the United States, have signed the Convention, but India is not among them. For several years, the United States has been urging India to become a party to the Convention. 8The U.S. Department of State, in its 2023 Annual Report on International Child Abduction, like in previous years, highlighted India as one of the “Countries Demonstrating a Pattern of Noncompliance” in respect to any established procedures related to international parental child abduction.9
Several scholars have raised concerns about India’s decision not to sign the international agreement, even though the country has a substantial number of its citizens residing as migrants across the globe.10 Legal disputes involving international parental child removal have become commonplace and the Indian judiciary is often made a helpless onlooker as children are claimed, removed and accessed like properties.
India claims that it has not signed the Hague Convention in the interests of the Indian women living abroad. These women escape to India with their children in cases of domestic violence or abusive marriages. If India signs the Convention, such women could be made liable for civil offence under the strict laws of foreign countries. For instance, within the United Kingdom, the Child Abduction Act of 1984 includes highly rigorous clauses that criminalize the wrongful act of taking and holding a child. Nevertheless, it remains crucial to carefully weigh the well-being of Indian women residing in foreign countries against the welfare of their children before reaching a conclusive judgment. 11Further, the Indian Government has pointed out that the instances of a parent leaving India with the child and escaping to a foreign country have been negligible. The Indian Government has taken the position that creating an offence of child removal would do more harm than good and there is no real need for it in the Indian legal context.12
It is worth mentioning that the government of India initiated the Indian Civil Aspects of International Child Abduction Bill of 2007, but this was never put into the public sphere. Further, the Law Commission of India in its 218th Report titled “Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980)” while remaining silent on the 2007 draft Bill, strongly recommended that India should join the Hague Convention.13 In the report, it was observed that “owing to the advent of technology with the establishment of easier and economic forms of travel and communication, national boundaries have increasingly become irrelevant for the purposes of cultural exchanges. This brings in a package of both desirable and undesirable effects including familial problems.” The Commission recommended that until India acceded to The Hague Convention and drafted domestic legislation, State Governments with a high NRI (Non Residing Indian) population should permit liaison with foreign missions in India and assist the courts to ensure prompt return of children to the country of their habitual residence. Further, the administrative and police authorities in those states should formulate uniform guidelines to assist such parents in distress.14
In the year 2016, the Ministry of Women & Child Development had drafted the “Civil Aspects of International Child Abduction Bill, 2016”. The Bill had been opened for comments from the public. The Bill was fundamentally modelled on the Hague Convention and covers the basic procedure and mechanism of implementation. The main objectives of the Bill are to secure the prompt return of children wrongfully removed or retained in any contracting state, and to ensure that rights of custody and of access under the law of one contracting state are respected in other contracting states.15 The Law Commission of India, in its 263rd Report examined the above mentioned draft bill and came to a conclusion that it requires revision keeping in view the legislative precedents and practices followed in the drafting of bills and to suitably harmonize its provision with the Hague Convention, 1980. The commission re-named the modified bill as the “The Protection of Children (Inter-country Removal and Retention) Bill, 2016.”16
Nevertheless, later the draft Bill became a dead letter due to inaction of the government. In fact, the then Women & Child Development Minister, Maneka Gandhi has expressed apprehension over acceding to the Convention at several forums, primarily based on two reasons—that such a choice might not serve the best interests of women facing difficulties, and the government’s stance that occurrences of Indian children being abducted and taken abroad are relatively infrequent.17
Later, in 2017, the government-appointed, Justice Rajesh Bindal Committee in its report stressed upon the need for mediation as the first step, and recommended that the Government may establish an ‘Inter Country Parental Child Removal Disputes Resolution Authority’. The authority has been envisaged to provide a one window solution in cases of inter country removal and retention of Children.18 The Committee made their recommendations based on the premise that the treaty would negatively impact Indian women fleeing abusive marriages abroad and expressed apprehensions on the need to sign the Hague Convention, 1980.19
In cases where a child is abducted by the parent and brought to India, and where the non-abductee parent has orders of the court in foreign jurisdiction regarding the custody of the child, he/she may have to initiate legal proceedings within India to seek the repatriation of their child.
As the first step in the process a complaint should be lodged at the local police station in India, if possible, along with a copy of any foreign court orders.20 Subsequently, one of the options most successfully used to pursue a return in the courts of India is making an application for a Writ of Habeas Corpus. As part of a writ of habeas corpus, if a complaint has already been filed at the local police station, the police can be made party to the writ petition so that the court can keep track of efforts being made by the police on your complaint, or direct them to take certain steps. The court can order for the other parent to present your child to the court, so the judge can make a decision as to where your child should live. There is usually more than one hearing, so the court can also order for the surrender of your child’s passport to stop them from being moved to another country, and order for an interim contact arrangement to be put into place so that you can maintain a relationship with your child.21
A guardianship and custody petition under the Guardianship & Wards Act, 1890 is also an alternative remedy sought by aggrieved parents in cases of both intra and inter-country parental child removal. The non-abductee parent will have a locus-standi under Section 8 as he/she will be the person desirous of being, or claiming to be, the guardian of the minor. The Court under its
power, provided under Section 7, shall appoint a person to be the guardian based on the paramount consideration i.e., welfare of child.22
The aggrieved parent has the option of opting for mediation services as well. Mediation is voluntary and both parents must agree to participate. Additionally, in different states in India, mediation is also available as an alternative to litigation for couples interested in attempting to reach a voluntary agreement.23 In fact, the Ministry of Women and Child Development has itself directed the NCPCR (National Commission for Protection of Child Rights) to constitute a Mediation Cell, to resolve the cases of children who were taken away by one of the spouse without the permission of the other spouse due to marital discord or domestic violence from overseas country to India or vice versa and prepare parental plan taking into account the best interest of the child.
It must be mentioned that the current position of the Indian Government has its own disadvantages. Firstly, India is no longer impervious to international parental child abduction. In the absence of the Convention principles, the Indian Courts determine the Child’s best interest whereby any child removal is dealt with like any custody dispute. In this procedure, legal proceedings transform into a contest between the competing rights of the involved parties, often overshadowing and downplaying the genuine concern for the child’s well-being. The clash between parental interests and spousal rights takes precedence in determining custody arrangements. The more dominant parent tends to prevail in asserting their rights, resulting in an interpretation of the child’s best interests that is misleading and flawed. Such a resolution fails to genuinely serve the well-being of the relocated child.
Secondly, such a determination in India serves to benefit the parent who carried out the abduction, undermining the authority of the court which is ideally positioned to assess the child’s long-term welfare – specifically, the court of the nation where the child primarily resided prior to the wrongful removal or retention incident. In contrast, the Hague Convention’s approach offers the advantage of swiftly reinstating the original situation before the wrongful act occurred, thus reinforcing the appropriate role of the court in the child’s habitual residence country. The applicable legal framework for the child should be that of the country where they normally reside, and correspondingly, the court of that nation should hold jurisdiction. In India, settling the rights of a foreign child brought into the country by a parent in violation of the law might frequently lead to contentious disputes, potentially not aligning with the child’s best interests. Such determinations should rightfully be made according to the legal system and court of the child’s country of origin.
Thirdly, the fact that India is not a party to the Hague Convention may have a negative influence on a foreign judge, who is deciding whether a child living with his/her parent in a foreign country, should be permitted to spend time in India to enjoy contact with his/her Indian parent and extended family. The lack of the assurance, which is provided by The Hague Convention, ensuring a prompt return of the child to their home country, might make the foreign judge hesitant to authorize the child’s travel to India. As a natural consequence of this fundamental principle, being a member of the Hague Convention will offer the possibility of facilitating the repatriation of children who reside in India but have been unlawfully taken to any of the countries that have ratified the Convention.
Fourthly, the Convention offers a framework for addressing the issues of custody and contact which may arise when parents are separated and living in different countries. By doing so, it circumvents potential complications that might arise in courts of various countries that are equally competent to decide such issues. The recognition and enforcement provisions of the Convention avoid the need for re-litigating custody and contact issues and ensure that decisions are taken by the authorities of the Country where the child was habitually resident before removal.24 It must be noted that a significant number of abducted children are often brought to India by the parent, compared to other places, according to the statistics secured by the US Government. As per a 2023 report, the Authorities in India persistently failed to work with the U.S. Department of State to resolve abduction cases. As a result of this failure, 68 cases accounting for 65 % of requests for the return of abducted children remained unresolved for more than 12 months. On an average, these cases were unresolved for three years and ten months.25
Taking into consideration the lack of legislation and the wide room for judicial discretion, it is clear that the Government needs to take the matter in cognizance, given the fact that India is turning out to be a safe haven for people fleeing with their child from any foreign country. The very thought of tiring litigation and the dim scope of resolution through mediation harasses the non-abductee parent. Therefore, the recommendations of the Law Commission through the 218th and 263rd Report require urgent deliberation, along with the Alternate Dispute Resolution (ADR) mechanism suggested by Justice Bindal Committee. It is expected that the legislature will give heed to the aggrieved parents who lose their child and have to engage in long legal fights in India without having any clear direction; and will not drop the idea of possible legislation, like the 2016 draft bill.
Law Commission of India, “218th Report on Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980)” (March, 2009).
Prem Kumar Gautam, “Parental Child Abduction and Mediation in the Era of Globalization” 11 RMLNLUJ (2019) 65.
Abhijit Kumar Pandey and Roshan Santhalia, “Inter-Country Abductions and Private International Law” (2010) 3 NUJS L Rev 229.
Convention on the Civil Aspects of International Child Abduction, 1980.
Justice A.R. Lakshmanan, “International Child Abduction – Parental Removal” (2008) 48 IJIL 427.
Stutee Nag, “Is It Time for India to Reconsider Its Stand on The Hague Abduction Convention?”, Live Law, 30th June, 2023, https://www.livelaw.in/articles/is-it-time-for-india-to-reconsider-its-stand-on-the-hague-abduction-convention-231602 (last visited on 12th August, 2023).
S. Department of State, “Annual Reports on International Child Abduction” (2023).
Duncan, “The Work of the Hague Conference in the Field of the International Protection of Children and its Relevance to India” 2 INT’L Law ISSUES & CHALLENGES 149-68 (2009).
J Venkatesan, “India not to sign pact on inter-country child abduction”, Deccan Chronicle, 12th February, 2017 https://www.deccanchronicle.com/nation/current-affairs/120217/india-not-to-sign-pact-on-inter-country-child-abduction.html.
Press Trust of India, “Govt likely to junk inter-parental child abduction Bill”, Tribune, 6th November, 2016 https://www.tribuneindia.com/news/archive/nation/govt-likely-to-junk-inter-parental-child-abduction-bill-319503 (last visited on 12th August, 2023).
Stellina Jolly, “International Parental Child Abduction: An Explorative Analysis of Legal Standards and Judicial Interpretation in India”, 31 International Journal of Law Policy and the Family (April 2017).
The Civil Aspects of International Child Abduction Bill, 2016.
Law Commission of India, “The Protection of Children (Inter-Country Removal and Retention) Bill, 2016” (October, 2016).
WCD Ministry holds national consultation to discuss issues related to India’s accession to Hague Convention on Civil Aspects of International Child Abduction, Press Information Bureau, 3rd February, 2017, https://pib.gov.in/newsite/PrintRelease.aspx?relid=158056 (last visited on 13th August, 2023).
Committee headed by Justice Rajesh Bindal submits report on Inter-country removal & retention of children, to the WCD Minister, Press Information Bureau, 23rd April, 2018, https://pib.gov.in/newsite/PrintRelease.aspx?relid=178862 (last visited on 13th August, 2023).
Justice Rajesh Bindal Committee, “Examining the Civil Aspects of International Child Abduction Bill, 2016 and the Protection of Children (Inter-Country Removal and Retention) Bill, 2016” (2018).
Child Abduction by Parents: Laws on Violation of Child Custody, available at: https://www.indialawoffices.com/legal-articles/child-abduction-by-parents (last visited on 13th August, 2023).
Rajesh K Gupta v. Ram Gopal Agarwala, AIR 2005 SC 2426.
Divya Meenakshi R, “International Parental Child Abduction: A Critical Overview of the Indian Approach Compared to International Standards” 5 NLUO JRC (2020) 80.
Mr. Pushpam Singh
4th year law student,
Army Institute of Law, Mohali
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