India:
A Safe Haven for
International Child Abduction
Jeremy D. Morley
For several reasons, India has
become a safe haven for child abductors.
First, India is not a party to the Hague
Convention on the Civil Aspects of International
Child Abduction. The Convention is the
fundamental international treaty that protects
the rights of abducted children and serves to
have them returned promptly to the country of
their habitual residence.
Second, the court system in India is extremely
slow so that an abductor has ample time to
create “facts on the ground” in terms of getting
the child sufficiently settled into life in
India as to justify an Indian court in
ultimately deeming that it is best to keep the
child in India.
Third, the law in India was previously settled
that foreign children taken by a parent to India
without the consent of the other parent would
normally be returned to their country of
residence or nationality. However recent
decisions of courts in India have changed that
rule and have held that foreign custody orders
are merely items to consider as part of an
overall custody review. Thus in a decision dated
March 3, 2006 the Bombay High Court at Goa
refused to issue a writ of habeas corpus on
behalf of a British mother from Ireland whose
eight-year-old daughter had allegedly been
abducted to Goa by the child’s American father.
The High Court dismissed the mother’s
application on the ground that normal custody
hearings should be undertaken and completed in
Goa.
Fourth, no Indian legislation sets forth helpful
law on this issue.
As a consequence, courts outside India should be
extremely wary about allowing parents to take
children for temporary visits to India over the
objections of the other parents since there is a
great likelihood that parents who wrongfully
retain children in India will get away with
their wrongful conduct scot-free in India.
Thus in Katare v. Katare, 125 Wn. App.
813, 105 P.3d 44 (Wash. 2004) the Court of
Appeals in Washington State upheld in relevant
part the trial court’s ruling in a case
involving an American mother and an Indian
father. The trial court held that it was not
convinced that there was a serious threat that
the father would abduct their children to India.
However, the potential consequences of any
abduction to India were severe and
“irreversible.” Accordingly the court was
warranted in imposing severe limitations on the
husband's residential time with the children,
including strict restrictions on the locations
of such visitation, surrender of his passport,
notification of any change of his citizenship
status, and prohibition of his holding or
obtaining certain documents (i.e. passports,
birth certificates) for the children.
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