By Jeremy D. Morley
The Indian Supreme Court debated international child abduction last week in the context of a petition filed some years ago by a U.S. NGO demanding guideline to counter cross-border parental child abduction.
Central to the debate, it appears, was my expert testimony about Indian law in a Canadian case. The petitioners explained to the Indian Supreme Court that, the Superior Court in Ontario, Canada had barred a father from removing a child from Canada to India based upon my testimony. They explained that,
"It was his (the expert's) 'very firm opinion' that notwithstanding any order of a court in Ontario, if the father retained the child, 'it would be exceedingly difficult and perhaps impossible for the mother to secure V's return home from India'. Any court proceeding in India to secure the child's return would be exceedingly slow...The mother would have to spend considerable money on legal fees to try and secure the child's return-or even have access to the child in India. India does not comply with international norms concerning the return of internationally abducted children 'and it is a justifiably well -recognised safe haven for international child abductors.' India has chosen not to accede to the Hague Convention. 'India's failure to sign the treaty constitutes a strong signal that it does not consider the abduction of children from other countries to be a serious matter'..."
Indeed, my testimony on this issue has been accepted by courts in many jurisdictions in the United States, Canada and Australia.
The Supreme Court criticized the failure of the Indian Government and Legislature to address the issue, but indicated that it might propose the adoption of the 2018 report by a committee headed by Justice Rajesh Bindal and appointed by India' s Ministry of Women and Child Development. In its report, the Bindal Committee rejected the fundamental thesis of the Hague Convention that abducted children should normally be promptly returned to their habitual residence. Instead, it insisted that abducted children should not be returned from India unless it is proven to be in their best interest to do so and unless any one of several broadly-described exceptions is shown to exist.
The Bindal Committee' s report included a proposed statute to establish a quasi-judicial “Inter-Country Parental Child Removal Disputes Resolution Authority” in India to handle international child abduction cases. A careful review of the proposed legislation establishes that it would, in fact, further encourage international child abduction to India.
My article, India's ‘Bindal' Committee promotes international child abduction, was published in the September 2018 edition of the International Family Law Journal.