Cross-border parental child abduction is a complex and an emotionally charged issue that arises when one parent unlawfully takes or retains a child in a foreign country, often in violation of custody agreements or court orders. These cases typically stem from disputes over parental rights, cultural differences, or legal loopholes in international family law. While some parents may believe they are acting in the child’s best interest, such abductions can cause significant emotional and psychological harm to the child.

The Hague Convention on the Civil Aspects of International Child Abduction serves as the primary international treaty aimed at resolving these disputes by facilitating the prompt return of abducted children to their country of habitual residence. The legal definition of a ‘child’ varies across different laws and jurisdictions. However, a child is generally defined as a person who has not yet attained the age of majority, which is typically 18 years in most legal systems.

What Is Hague Convention On The Civil Aspects Of International Child Abduction?

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty adopted in 1980 to address the growing concern of cross-border parental child abduction. It aims to protect children from wrongful removal or retention by ensuring their prompt return to their country of habitual residence. The Convention provides a legal framework for cooperation between member countries to resolve international child custody disputes efficiently. The Convention allows exceptions to returning a child if there is a grave risk of harm, the child has settled in a new environment over time, the child is mature enough to object, or if the return would violate fundamental rights and freedoms. A ‘child’ as per this framework is the one who is less than the age of 16 years. This convention serves to ensuring the following.

• Prompt Return of Abducted Children : The treaty mandates the swift return of children who have been wrongfully taken to or retained in another country, ensuring minimal disruption to their lives.

• Respect for Custody Rights : It safeguards the custody rights of parents and prevents one parent from unlawfully taking the child away from their legal guardian.

• Prevention of Forum Shopping :The Convention discourages parents from moving to another country to seek a more favorable legal ruling in custody disputes.

• International Cooperation : Each signatory country designates a Central Authority responsible for processing applications and facilitating cooperation between nations.

• Best Interests of the Child : While prioritizing the return of the child, the Convention also considers the child’s safety, well-being, and fundamental rights.

India not bring a signatory to this Convention makes it challenging for the requesting state to fulfill demand of the parent who has filed the petition for recovery or return of the child.

Remedies Available In India

According to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the father is considered the natural guardian of a child, followed by the mother after him. However, in the case of a minor below the age of five years, custody is generally granted to the mother. The Jurisprudential essence behind this provision is welfare and best interest of the child. Though the constitutional validity of this provision was questioned in the case of Githa Hariharan v. Reserve Bank Of India(1999 INSC 66) that the section discriminates between a father and a mother as a lawful guardian of a child. The Honorable Supreme Court held that there is no violation of Article 14 of The Constitution, interpreting it in a gender neutral manner. Further held that The Court held that the term "after him" in Section 6(a) should not be interpreted to mean that the mother can be the natural guardian only after the father's death. Instead, the mother can also be considered the natural guardian during the father's lifetime if the circumstances warrant it. The Court emphasized that the welfare of the child is the paramount consideration in determining guardianship, rather than rigid gender-based preferences. The ruling ensured that mothers have equal guardianship rights (progressive interpretation) and that the law must align with constitutional principles of gender equality under Article 14 (Right to Equality) and Article 15 (Prohibition of Discrimination) of the Indian Constitution.

Another remedy which can be availed is filing a Habeas Corpus writ. The habeas corpus writ is a legal remedy available under Article 32 and Article 226 of the Indian Constitution, used to challenge illegal detention or wrongful confinement. In cases of parental child abduction, courts may issue this writ to ensure the child's best interests and determine lawful custody. This writ may be used to seek the child's return. Indian courts have applied this remedy in several cases where a parent unlawfully retained or removed a child. As a part of the writ, The court has the authority to require the other parent to bring the child before the court, allowing the judge to determine the appropriate living arrangements. Since multiple hearings may be involved, the court can also mandate the surrender of the child's passport to prevent relocation to another country. Additionally, the court may establish an interim contact arrangement to ensure that the parent maintains a relationship with the child.

In a case where a child was brought from the USA to India by the father without the mother's consent, the mother obtained a custody order from a U.S. court and filed a habeas corpus petition in India. The Supreme Court allowed the child to remain in India, emphasizing the child's well-being and integration into the Indian environment over the foreign custody order. It's important to note that India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which affects the legal framework for such cases.

United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40 (1st Cir. 2004) is a notable case concerning international parental kidnapping under the International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. Dr. Fazal-Ur-Raheman Fazal, an Indian citizen and medical doctor residing in Massachusetts, was convicted for abducting his two minor children to India without the consent of their mother, Ms. Saihba Ali, amid marital disputes. Dr. Raheman’s wife secured an emergency custody order from a Massachusetts court, while he obtained a custody order from the Nagpur Family Court in his favor. When the mother traveled to India to locate and bring back her children, Raheman filed criminal charges against her, forcing her to flee back to the U.S. without them. Raheman was later charged with international parental kidnapping and wiretapping, as he had unlawfully recorded his wife’s phone conversations and videotaped her. He was arrested during a trip back to the U.S., convicted, and sentenced to three years in prison. His release was conditional upon ensuring the return of his two children, who were 12 and 8 years old, to their mother in the U.S. During sentencing, Judge Patti B. Saris strongly condemned Raheman for unlawfully taking the children from their home in the U.S. and stated that he had betrayed the trust of the country that had provided him numerous opportunities.

Conditions when a parent may or may not take away the child

A parent can take their child away from the other parent if they are legally married with no custody order or if they have sole physical custody after divorce. However, it becomes illegal if a parent without physical custody takes the child without consent. It is also unlawful to violate the visitation time ordered by the court when the custody was ordered to one parent. In India, due to the lack of specific laws on parental abduction, such cases are treated as custody disputes, and a Guardianship Petition can be filed under Section 9 of the Guardians and Wards Act, 1890.

Challenges faced by aggrieved In India

Reuniting experience shows a vast inconsistency in the time Indian courts take to decide on return orders. While some cases are concluded within four months, others continue for more than three and a half years without resolution. The Indian court system has multiple levels of appeal, which can extend the duration of case resolution. Appeal courts often have long waiting lists for hearing dates, and the Supreme Court serves as the highest authority for appeals.

Cross-border child abduction remains a complex legal and emotional issue, particularly In India, where the absence of a clear framework under the Hague Convention on International Child Abduction complicates resolution. While legal remedies such as habeas corpus petitions and the Guardians and Wards Act provide recourse, prolonged litigation and jurisdictional conflicts often delay justice. As a way forward from the above challenges, It is important to note that mediation can be pursued at any stage of the legal process as a means of avoiding prolonged litigation and reaching an agreement that may be acceptable to both parents. Apart from legal professionals, other supporters who may be sought help from, would be child welfare committees in respective countries, child helpline, etc. Ultimately, the focus must remain on safeguarding the best interests of the child while ensuring that parental rights are balanced with legal protections.