Family Law

India: Safe Haven for International Child Abduction

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 justidy 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.

From International Family Law posted 2006-07-10.