Is It Time for India to Reconsider Its Stand on The Hague Abduction Convention?

In every relationship, certain topics are off-limits for discussion. However, in every successful relationship, the key is open communication. So, as both countries ring in a renewed sense of camaraderie, the question needs to be asked – Is India ready to sign the Hague Convention on the Civil Aspects of International Child Abduction?

The Hague Convention aims to protect children from the harmful effects of international parental child abduction by providing a straightforward legal procedure for the prompt return of abducted children to their country of habitual residence. The idea behind the Convention is not to settle a child custody dispute. The Convention merely backs the notion that child custody matters should be decided by the court in the country of the child’s habitual residence and that a parent should not unilaterally remove a child from such a country without the knowledge or consent of the other parent unless an exception applies.

More than 100 countries, including the United States, have signed the Convention. India is not one of those countries. The United States has tried to encourage India to accede to the Convention for years. In its Annual Report on International Child Abduction, 2023, the U.S. Department of State (as it has in the past) cited India as one of the “Countries Demonstrating a Pattern of Noncompliance” concerning any protocols regarding international parental child abduction. However, for some (dare I say, archaic) reasons, India is yet to sign the Convention.

Although the Convention came into effect in the early 1980s, India took its first official stand on it in 2009, when the Law Commission of India issued a report titled, ‘Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980)’, urging the Government of India to sign the Hague Convention. It stated that international parental child abduction amounts to “an interference with the parental rights” and creates a “considerable amount of confusion,” specifically concerning the jurisdictional aspects of a case. It underscored the highly critical issue that India not being a signatory to the Hague Convention might negatively influence a foreign judge deciding on the custody of a child who has ties to India. Without the guarantee that the child will be swiftly returned to his country of habitual residence, the foreign judge may be reluctant to permit the child to travel to India. It further discussed an apparent lack of “uniform pattern” and “absence of progressive development” concerning minor children’s custody cases. The report accurately noted that while the Indian courts decided some cases by placing prime importance on the “welfare of the child,” the others were based merely on “technicalities of various provisions of law and jurisdictional tiffs.” The reason behind this divergence, the report noted, “can be the absence of [a] law that governs this aspect.” It emphasized that such a lack of uniformity in treating international child custody cases and the shattered relationship between a child’s parents could physically and emotionally affect the child. In its concluding remarks, the report recommended that India become a signatory to the Hague Convention and keep pace with the changing needs of society. However, the Indian Government did not take any substantial steps regarding the Convention at the time.

Several years later, in 2016, the Indian authorities seemingly amped up their efforts, yet again, to come up with a solution concerning international parental child abduction in India. However, several proposed bills and reports later, in April 2018, a committee headed by Justice Rajesh Bindal submitted its final report on the issue, suggesting that India should not sign the Hague Convention. In addition, the Committee recommended that an 'Inter Country Parental Child Removal Disputes Resolution Authority' be established to provide a "one-window solution" in cases of inter-country removal of children. The Committee provided draft legislation titled the Protection of Children (Inter-Country Removal and Retention) Bill, 2018. The Committee also stressed on ‘Mediation’ as a way to resolve such conflicts. Pursuant to this, a Mediation Cell was established in 2018 by the National Commission for the Protection of Child Rights to mediate international custody disputes. However, it has been five years since, but the Proposed Bill has yet to be signed, the Proposed Authority has yet to come into existence, and (as noted in the U.S. State Department’s Annual Report) the Mediation Cell has yet to resolve any abduction cases between the United States and India.

Meanwhile, listed below are some of the many reasons why India should consider signing the Convention:

A. The Striking Similarity between the Available Defenses under the Hague Convention and the Factors Considered by Indian Courts:

Whereas India has not signed the Convention, over the last couple of decades, it has developed a list of applicable factors in cases seeking the return of a child to her home country from India. Such factors may be deduced from precedent-based law, the bedrock principle being the best interests and welfare of the child. However, it is critical to note that the various factors applied by the Indian courts are significantly similar to the defenses available under the Convention.

Article 13 of the Convention enlists the circumstances under which a State is not bound to order the return of the child. The interpretation of the exceptions provided in Article 13 may vary from country to country. As per the U.S. State Department, for instance, a court may deny return of an abducted child if (a) there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; (b) the child objects to being returned and has attained an age and degree of maturity at which the court can take account of the child's views; (c) more than one year has passed since the wrongful removal or retention occurred and the child has become settled in his or her new environment; (d) the party seeking return consented to or subsequently acquiesced to the child’s removal or retention; (e) the return would violate the fundamental principles of human rights and fundamental freedoms in the country where the child is being held and (e) the party seeking return was not actually exercising rights of custody at the time of the wrongful removal or retention.^[1]

Thus, in a Hague case, if the taking parent provides credible evidence of psychological or physical abuse by the left-behind parent (of the child or of the taking parent in the presence of the child), then he may have the defense of Grave Risk of Harm. Similarly, in India, the courts have declined to order the return of a child to her home country, where serious allegations of abuse (e.g., severe alcohol addiction^[2], sex addiction, and adulterous behavior^[3]) were leveled against the left-behind parent.

The objection of the child to return to the country of her habitual residence is also a defense in a Hague case if the child has attained an age and degree of maturity at which the court can take into account the child’s views. Similarly, Indian courts generally ascertain the child’s wishes and opinion in such disputes if the child is mature enough to form an opinion.

Where more than one year has passed since the child’s wrongful retention (or removal) and the child is settled in her new environment, such a circumstance amounts to a valid defense in a Hague case. Similarly, as far as the Indian case law is concerned, the length of stay of a child after having been removed to India is a critically determinative factor, especially if the child has “developed roots” in the community. Indian courts, in several cases, have refused to order the return of a child where the child had stayed in India for more than one year and had formed significant ties to family and friends in India.^[4] On the other hand, where the stay of the child in India, even though two years long, comprised of constant shifting of the child from one place to another to avoid being located by the left-behind father, the Indian court considered it insufficient for the child to have developed roots in the country and the child was ordered to return.^[5] Another factor considered by the Indian courts, which is similar to the length of the stay, is the promptness with which the left-behind parent acts in seeking the return of the child. The general rule (similar to the one-year Hague defense) is that the more prompt a left-behind parent is in taking action, the stronger the chances that the Indian court will order the child’s return.^[6]

As noted above, the consent of the left-behind parent is one of the applicable defenses under the Hague Convention. Similarly, where the father had initially consented to the child staying back in India and had later changed his mind, the Indian court refused to allow the father to take the child back to the U.S. based on the father’s consent.^[7]

Defense concerning the violation of the fundamental principles of human rights and fundamental freedoms has been asserted successfully in extremely rare cases, and there is not a lot of reported case law on it.

Lastly, where the party seeking the return of the child was not actually exercising custody rights at the time of the removal, such circumstances would amount to a defense in a Hague case. It is also critical to mention here that a parent does not necessarily need to present a custody order to prove that her custodial rights were violated when the child was taken to another country, often showing proof of parenthood or marriage is sufficient.^[8] Similarly, Indian courts have made it amply clear that just because the left-behind parent successfully got an order from the foreign court concerning the child's custody, it cannot be the lone deciding factor in determining whether to return the child to such a country.^[9] However, where the left-behind parent provided substantial proof of his association with the child (including extended periods of alone travel and stay time with the child), the courts in India found it to be an extremely relevant factor in deciding that the child must be returned to his home country.^[10].

Another point where similarity can be drawn between the two systems is that just like a Hague court does not get into a rights-of-custody determination (and merely decides whether to order return of the child or not), an Indian court, while exercising its writ jurisdiction in a writ of Habeas Corpus, also in most such cases merely conducts a summary inquiry as to the return of the child (as opposed to an elaborate inquiry into the custodial aspects of the dispute).

B. Unfair Presumptions Based on Gender:

The primary reason for India not to sign the Convention, it seems, is the age-old notion of the helpless Indian woman in a foreign land. It is perhaps time to shake this notion off. Indian women have found tremendous international success in the field of business, engineering, medicine, films, media, and more. In the present day and age of unprecedented awareness and fierce financial independence, it is perhaps a little unfair to reduce Indian women to the most outdated status of "damsel in distress." Additionally, it is not entirely accurate to assume that the taking parent is mostly a woman. Indian case law is rife with international child custody cases where it was the father who removed the child to India from a foreign country. In my international family law practice, I have consulted with many women clients (of Indian origin) who genuinely worry that the father of their child will take the child and flee to India.

C. Overwhelming changes in Socio-Economic status and Immigration statistics concerning the Indian Immigrants:

We need to consider the sea change in immigration and socio-economic statistics of Indian immigrants in countries such as the United States. It is not the 1980s anymore. The reported number of Indian immigrants in the United States has risen from a mere 2,06,000 (in the 1980s) to a staggering 27,09,000 (as of 2021).^[11] As per the American Community Surveys (A.C.S.) 2021 data, Indian immigrants (at 2.7 million) represent the second largest immigrant group in the U.S. As authoritatively reported by the Migrant Policy Institute, India is the source of the second largest number of international students enrolled in U.S. higher education, and its nationals receive the majority of employer-sponsored H-1B temporary visas for high-skilled workers. M.P.I. also reports that, on average, Indians have much higher incomes than the total foreign- and native-born populations. Thus, most (if not all) Indian couples have the money and resources to seek the help they need if they decide to separate, but some choose not to. Most of the immigrant couples make a well-planned and well-researched move to countries like the U.S. in search of greener pastures. They plan their families accordingly, and it is mostly on their agenda to give birth to and raise their child in an American setup. When things get rough (as in many international marriages), one of the parents simply (perhaps in the heat of the moment) decides to take off with the child to their home country. However, in doing so, they choose not to pursue the available legal options and decide to take matters into their own hands because why not?

Also, let us not forget the limited section of illegal immigrants who first avail an asylum in countries like the U.S. by painting a very radical picture of the Indian Government, and then once they find it challenging to continue staying in the U.S., they rush back to India and convey an equally untrue picture of lack of assistance from the "foreign authorities" in the U.S. and the unsympathetic attitude of foreign courts towards the Indian taking parent.

D. Available Legal Recourses:

In a seriously abusive situation at home, in a country like the U.S., the parent who feels victimized could file a police complaint. As a temporary measure, she could secure a restraining order against the abusive parent. She has the option to file for separation or divorce. Based on the credible evidence of severe abuse (especially if directed towards the child or towards her in the presence of the child), she could seek sole legal and physical custody of the child. Additionally, she could seek the court’s permission for international child relocation.

E. The Child being exposed to unnecessary politics between the parents:

In recommending that India should not sign the Convention, the Bindal Committee pointed out that if India signed the Convention, the feuding couples might end up using their child as a mere "pawn" to take revenge from the other parent. If anything, the reason that India is NOT a signatory to the Convention is an excellent incentive for the taking parent to settle the score with the left-behind parent (once and for all).

F. The burden on the Indian Judiciary:

Not to mention the burden it puts on an already overburdened Indian judiciary. Once the taking parent is in India, all bets are off. From filing made-up domestic violence charges to initiating false cases under the infamous Section 498-A of the Indian Penal Code to filing for restitution of conjugal rights, all hell breaks loose between the parties to get even. By Indian Law Ministry’s own calculation, the number of pending cases in India is expected to reach astaggering 50 million in 2023, the highest number in any country worldwide. Under such circumstances, it seems only reasonable to not take on the additional burden of ingenuine and spiteful cases.

G. Cases concerning International Child Removal from India:

Whereas disputes concerning international parental child removal from India to the countries like the United States are not as rampant as those which arise when children are removed from the U.S. to India. Nonetheless, in the wake of rapid globalization, such disputes often do occur, and the numbers are escalating. The fact that India has not yet signed the Hague Convention significantly puts the left-behind parent in India at a major disadvantage. Not only will such a parent have to undergo much longer legal procedures to secure the return of the child from a foreign country, chances are that the longer it takes to secure a favorable order, the stronger the case of the taking parent becomes to retain the child in the foreign country indefinitely. Added legal costs are another significant factor to consider. Just by way of example, if India were a signatory to the Hague Convention, after winning a Hague case, a left-behind parent in India may be able to recover legal fees and related expenses from the taking parent in the U.S. There is no such remedy in case of a regular custody battle under the Uniform Child Custody Jurisdiction and Enforcement Act. ^[12]

H. Possible future difficulties to be faced by the taking parent:

In a situation where a child has been unilaterally removed by the taking parent, the left-behind parent can seek a temporary custody order requiring the return of the child from India to the country of his habitual residence. If the taking parent still defies such an order, he can be held in contempt, possibly leading to an imprisonment order. Furthermore, as far as the U.S. is concerned, the offense of International Parental Kidnapping is a felony punishable by imprisonment of up to 3 years and a substantial fine.^[13] Not just that, an Interpol "red notice" may be issued against the taking parent, and shall he try to travel internationally again, he may be arrested in a foreign country (other than the U.S.) and be extradited to the U.S.

I. Mandate for Speedy Resolution in Hague Cases v. Procedural Delays in Regular Custody Cases:

Given its delicate circumstances, a Hague Abduction case is mandated to be finalized within 6 weeks of the date filed. Therefore, Hague cases proceed much faster than regular custody battles (which may take years to conclude, and even then, the child may not return to the country of her habitual residence).

A regular international child custody dispute is further delayed due to day-to-day administrative and procedural issues such as proper service etc. Such delay significantly hampers the left-behind parent’s case because it allows the taking parent to raise an argument that the child has by then become fully settled in her new place of residence, thus making it the "home state" of the child.

J. Global image of the Indian judicial system:

Furthermore, in today’s rapidly changing economic climate and given India’s bid to be seen as a key player in the current settings, it does not bode well for India’s international image when the Indian legal system is referred to as “less developed” or as a “safe haven”for child abductors.

By taking timely measures to curb the menace of international parental child abduction, India will not only help thousands of non-resident Indians who are forced to either give up their child (or their professional dreams) because of India’s current stand on the Hague Convention, it will also help India foster much stronger ties with many countries like the U.S., the U.K., Canada and Australia, who are all not only signatories to the Hague Convention but are also in the top ten countriesto where Indians immigrate.

As far as the strength and courage of Indian women living abroad is concerned, let's not forget that decades ago, one of us gave birth to and raised the first female Vice-President of the United States. I think we will do just fine.

The author is an International Lawyer who is licensed to practice law in the courts of India and the State of New York. Views are personal.

[1] https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/abductions/legain-info-for-parents/why-the-hague-convention-matters.html