International Child Removal To India And The Balancing Factors In A Writ Of Habeas Corpus: Show Me The ‘Baby’

India has not signed the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Therefore, in the Indian context, it is not an option for the left-behind parent to initiate a Hague case against the taking parent and seek the child’s return to the country of his or her ‘habitual residence’ for a rights-of-custody determination.

Consequently, in most cases, the left-behind parent is constrained to approach the jurisdictionally appropriate court in his or her home country for an ‘emergency custody order’ requiring the child's return by a set date. If the taking-parent still does not pay heed to such an order and fails to return the child by the proposed date, the foreign court would then issue a further order awarding temporary custody of the child (both legal and physical) to the left-behind parent, and once again ordering the child's immediate return to his or her home country.

Based on that foreign court order, the left-behind parent would then file a writ of habeas corpus before the appropriate Indian High Court seeking the child’s return. The writ court's jurisdiction to make orders regarding custody arises as soon as the child is within its territorial jurisdiction.^[1] It is the general rule for the courts in India to use their writ jurisdiction sparingly, especially in child custody cases. However, the writ of habeas corpus is generally maintainable in a case of international child removal, which is done in ‘gross violation’ of an existing foreign custody order. Although, it must be noted that as far as Indian family law is concerned, merely because a foreign court issues a custody order, the custody of the minor with the taking parent would not become unlawful per se. There are other contributing factors that the Indian court would consider while attaching any weight to a foreign court order (discussed below).

Therefore, the outcome of such cases is highly fact-specific (i.e., based on the totality of the facts and circumstances) and could easily go one way or the other.

Unlike the Hague Convention, where the idea is to simply return the child to the country of its habitual residence where the jurisdictionally appropriate court can then decide the child custody and visitation matters, the courts in India must consider “the question on merits bearing the welfare of the child as of paramount importance”.^[2] While faced with a writ of habeas corpus in a child custody case, the court has the liberty to undertake a summary or elaborate inquiry.^[3] In a summary inquiry, the court may order the child to be returned to his or her home country. Alternatively, if the facts and circumstances of the case warrant an elaborate inquiry into the question of custody of the child, the court may direct the parties to appear before the appropriate Indian forum to settle such dispute. Whether it is a case of a summary inquiry or an elaborate inquiry, the paramount consideration is the best interests and welfare of the child.^[4]

Indian statutory law defines “best interest of the child” as “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identify, social well-being and physical, emotional and intellectual development”.^[5]

While the concept of “best interest of the child” has been statutorily defined in Indian law, no statutory law provides an ‘all-inclusive’ list of factors that a court in India must keep in mind while dealing with such situations. However, one can try to deduce such factors (and the attributable weight attached to such factors) through precedent-based law.

• Promptness of the left-behind parent in taking legal recourse, the length of stay of the child in India, the nature of the child’s stay, and the opportunity to have developed roots: One of the primary factors that the Indian courts keep in mind while exercising summary jurisdiction is that the application for custody/return of the child is made promptly and quickly by the left-behind parent after the taking parent removes the child. Thus, depending on the swiftness with which the current proceedings were initiated by the left-behind parent and the resulting inability of the child to have developed any roots in India during that short time the court may undertake a summary inquiry and order the return of the child.^[6]

Where the nature of the length of the stay of the child in India, even though two years long, was such that he was shifted from one place to another (being admitted to different schools) in order to avoid being located by the left-behind father, the court considered it insufficient for the child to have developed roots in the country.^[7] Another factor the court weighed in favor of the father, in this case, was that he had initiated the Habeas Corpus petition ‘promptly and without any delay’.^[8]

On the other hand, some of the facts considered by the Indian Supreme Court in refusing the return of the child from India to the UK were that the child (a) was 6 years old, and out of those 6 years she had spent an equal amount of time in both India and the UK, (b) had extended family in India (including maternal grandparents), and (c) was steadily going to a school in India for more than one year.^[9] Similarly, in another case, concerning the length of the stay of the child, Indian court considered the following facts (a) the child was 2.5 years old at the time of removal to India and had stayed in India continuously thereafter until the age of 5, (b) was attending a reputed school in New Delhi, (c) was living in the care of his father, paternal grandparents and (d) had close contact with peers in India.^[10] The court in this case noted that, “unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being.”^[11]

• Existence of a court order, who initiated the foreign proceedings, comity of courts, and close contact: As far as the existence of a foreign custody order is concerned, the position of Indian courts is quite clear, “merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se.”^[12] In other words, just because the left-behind parent successfully got an order from the foreign court concerning the child's custody, it cannot be the lone decisive factor in determining whether to return the child to such country.^[13] The order to return a child to his or her home country should be issued while bearing the overarching principle of the best interests and welfare of the child and without fixating on the fact that there is a foreign court order seeking the return of the child.^[14] Thus, even when the left-behind father had a favorable foreign court order concerning the return of his two children, the Indian court while considering it as one of the factors, still declined to order the children to be returned.^[15] The court’s reasoning in doing so centered around the fact that as opposed to the loving and caring environment that the children were accustomed to with their mother, the left-behind father, in this case, had excessive alcohol addiction issues and lived alone with his mother who was eighty years old.^[16]

However, where both parents fully participated in foreign custody proceedings and obtained a series of consent orders concerning the child’s custody/parenting rights, maintenance, etc., from the competent courts in the child’s home country, before the mother removed the child to India, the Indian Supreme Court was of the view that the facts of the case did not warrant an elaborate inquiry and that the child must be ordered to return to his home country for an appropriate custody determination.^[17] It must be noted that in the case of V. Ravi. Chandran, it was the mother, who was also the taking parent, who had initiated the custody proceedings before the Supreme Court of New York and had then removed the child to India when the proceedings were well underway in the State of New York. Similarly, in Yashita, where the mother herself approached the jurisdictional court in the US, entered into an agreement on the basis of which a consent order was issued, and then violated that order and came back to India with the child, it was a factor which the Indian court held against her. In Lahari, where the mother initiated custody proceedings in the US, then brought the children to India in contravention of the US custody order, and then initiated custody proceedings in India, while claiming in the US court that she was in India only for a limited period, the Indian court held it as one of the main factors in deciding against the mother.^[18]

Where the left-behind parent first consented to the removal of the child by the taking parent to India and then secured a foreign custody order in his favor afterward for the return of the child, the Indian court did not attach any significant weight to such an order in determining whether or not to order the return of the child.^[19]

It is also a settled position in Indian law that the principle of comity of courts, the first strike principle, and the concept of ‘intimate contact’ must yield to the established principle of the welfare of child.^[20]

• Lack on the part of the taking parent to secure a favorable custody order in India: In a number of cases, where the taking mother had been in India for over 2 years, after having removed the child(ren) from their home country, and had still not taken any substantial steps to secure even an interim custody order in her favor, the court, while ordering the return of the child, held this fact in favor of the left-behind parent.^[21]
• Role as a parent, association with the child, and financial stability of the parent: The court in Lahari stated that the crucial factors to be kept in mind by the courts concerning the parents are “(1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual.”

Where the left-behind parent provided extensive details of his association with the child and of the steps he had taken since the birth of the child to be associated with his upbringing (including extended periods of alone travel and stay time with the child), the courts in India took due notice of such details and considered them as a relevant factor in deciding that the child must be returned to his home country.^[22] In this case, the mother showed no inclination to retain the child with her in India, even after unilaterally removing the child to India from the US, it was also one of the factors that in the court’s opinion favored the left-behind father, who was very keen on taking the child back to the US.^[23]

On the contrary, the Indian court declined to order the return of the child from India to the US, where the left-behind parent did not seem keen to get actual custody of the child, had remarried during the pendency of the custody proceedings, and seemed to be only interested in the fact that the child should be brought up in the US (instead of India) even if it were in the sole custody of the taking mother.^[24]

• Age, gender, general health, nationality, and opinion of the child: Where the child was a girl of almost 7 years of age, the Supreme Court stated that “ordinarily, the custody of a “girl” child who is around seven years of age, must ideally be with her mother unless there are circumstances to indicate that it would be harmful to the girl child to remain in custody of her mother.”^[25] While refusing the child's return, the court also bore in mind that the child in this case suffered from a “cardiac disorder and needed periodical medical reviews and proper care and attention.”

However, in another case, a 3-year-old child was medically diagnosed with hydronephrosis (a condition that required surgery). The mother, in this case, traveled to India for 6 months (with the limited consent of the father) to get the surgery done, and then refused to return. Here the fact that the child had undergone successful surgery and only required periodic medical reviews (which could be done from the US as well) was a factor that the court considered in the favor of the left-behind father.^[26]

With respect to the child’s age, it must be noted that simply to assume that a child of tender years will not be ordered to return, especially if the taking parent is the mother, may not be entirely true. The Supreme Court of India, in recent years, in two different matters, has ordered children as young as 2.5 years old^[27] and 3.5 years old^[28] to be returned to the US from India. In Yashita, the Supreme Court conducted a factor-by-factor analysis to adjudge the factors favoring each parent and, while ordering the child's return noted that “other than the age of the child nothing is in favor of the mother.” Therefore, the tender age by itself is not a decisive factor.

In several such cases, the fact that the child was a ‘citizen by birth’ of another country was considered one of the favorable factors in ordering the return of the child to that country. Citizenship of the child plays a more relevant role where the left-behind parent is able to convince the court that the child was fully settled in his home country, had friends there, went to school in that country and that removing the child from such a country would amount to uprooting him or her from her socio-cultural ties.

The Indian courts generally ascertain the child’s wishes and opinion in such disputes if the child is mature enough to form an opinion. However, where an eight-year-old boy appeared to have been brainwashed by the taking mother against the left-behind father, the court did not hold that factor against the father.^[29] The child in Arathi was ordered to be returned to the US from India.

• The willingness of the left-behind parent to accommodate the taking parent and not pursuing any criminal charges against him or her: In ordering the return of a child, Indian courts often consider the fact that the left-behind parent is willing to accommodate the taking parent’s needs and requirements in maintaining future contact with the child once the child is returned to his or her home country.

Although it is not the sole factor of consideration, Indian courts may be more inclined to order a return where the left-behind parent offers substantial access and visitation rights to the taking parent. In most cases where the return of the child was ordered by the Indian court, the left-behind parent made substantial offers as to (a) bearing traveling expenses and making living arrangements for the taking parent, shall he or she decide to return permanently to the home country of the child, (b) bearing cost of travel and lodging arrangements for the taking parent if he or she decides to stay back in India (e.g. during school holidays), (c) frequency of such visits and (d) facilitating regular video conferencing, etc. between the child and the taking parent.

The courts, in such cases, have often given special consideration to the fact that the left-behind parent is willing to request the appropriate US authorities to drop the warrants (if any) against the taking parent. Where the left-behind parent has given a written undertaking that he was not going to pursue any criminal charges against the mother for violation of the US court order, such a factor has been duly considered by the Indian courts.^[30]

Thus, as the Indian courts have repeatedly pointed out, in matters of international parental child removal to India the bedrock principle is- just one - “best interests and welfare of the child.” There is no exact science or applicable formula to reach a conclusion in such cases. The Indian courts must conduct a fact-based analysis of each case and attach a certain weight to each additional factor while bearing in mind the above principle.

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] Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.