India is a safe haven for international child abductors.
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. It has been adopt4d by more than 90 countries. India's Law Commission expressly recommended that India should adopt the treaty but the Indian Law Ministry opposed it on the ground that it would hurt Indian parents who take their children to India.
Furthermore, no Indian legislation sets forth any helpful law on this issue.
In recent years there have been more child abductions from the United States to India than to any other non-Hague country.
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 more recent decisions of courts in India changed that rule and held that foreign custody orders are merely items to consider as part of an overall custody review. The Law Commission reported that the Indian courts had followed an inconsistent and unpredictable pattern in international child abduction cases, which would make foreign judges wary of allowing child visits to India, and which should be remedied by signing the treaty. In its most recent ruling the Supreme Court of India capped five years of litigation with a ruling that ordered the return of a child to the United States, but subject to conditions that were difficult to fulfill. However, the abducting mother had – most unusually -- failed to start a custody case in India and the case would otherwise have taken an entirely different course.
The court system in India is extremely slow and inefficient 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.
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.
In Katare v. Katare, 283 P. 3d 546 (Wash. 2013) the Supreme Court of Washington State, en banc, 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.
In several cases in several U.S. states and Canadian provinces, the author has testified as an expert witness on this issue.
It is the author's opinion that a court in a case concerning the prevention of international parental child abduction must weigh both the risk of abduction presented by the facts concerning the specific parent and the risk that is presented by the specific country. The more certain it is that the country to which the child might be taken is a fully compliant Hague Convention treaty partner with an effective legal system, the more evidence that the individual parent is likely to be an abductor is required.
Conversely, when the foreign country is one such as India -- which is not a Hague partner, has an ineffective, slow and even corrupt legal system and is a proven safe haven for international child abductors -- far less evidence of the parent being a likely international child abductor is required to be established in order to justify – and require – a court to take effective steps to prevent a potential child abduction.
In the latter case, because the risk is so great, a parent should normally be barred from taking a child to India if there is any significant evidence that the child might not be returned.
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