India: Kidnapped by mom (or dad)


San_Diego_Child_Abduction.image

source

A large number of women married to Indians residing abroad are compelled to return to India with their children when the spousal relationship turns sour. The moral minefield embedded in the shifting landscape of marital discord moves to the much complicated terrain of a custody battle. When children are abducted by their own parent, it results in their being traumatised and their parents being destroyed.

The complicated pitfalls of crosscultural relationships, and the inadequacies of international law to serve justice in the interests of the most vulnerable, even makes it tricky for the judiciary to decide such cases. There is a rise in such cases of cross-country battles which often take an ugly shape. Though “abduction” is a strong word for an act by loving parents, but legally speaking that is what it is. Confusingly for children innocently loving both parents, it’s also often the case of parents putting their own needs above those of their children.

Worldwide, about 70 per cent of children are taken by their mothers. Australia witnesses between 250 and 300 children being abducted by a parent. At present, there are about 80 cases where Indian parents have removed a child from the US and brought him or her to India and in some cases where parents have taken the children to the US from India.

In the absence of a domestic law on “inter-parental child abduction” in India, very often children of such NRIs’ who have grown up abroad become silent victims of their parents’ marital dispute when they are forcibly brought back by one of them. Currently, there is no specific Indian legislation addressing issues related to abduction of children from and into India. However, the Law Commission of India had submitted its 218th report titled ‘Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction 1980’ on 30 March 2009, though there has not been much development on this front.

Recently, the Commission has also suggested some modifications in “The Protection of Children (Inter-country Removal and Retention) Bill, 2016”. It recognizes the issue of interspousal child removal on breakdown of diverse family units, in a situation where children are abducted by their own parents to India or to other foreign jurisdictions, in violation of interim/final orders of competent Courts.

In the US and Europe, interparental child abduction is a serious offence where the accused parent can go to jail on charges of abduction. Closer home, Sri Lanka, which is a signatory to the Hague Convention, has framed its own rules that allow the court to decide if a child should be sent back to the country from where he or she was removed.

Hague Convention

Hague Convention is a multilateral treaty which came into existence on 1 December 1983. It seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for the rights of access.” It seeks to return children abducted or retained overseas by a parent to their country of habitual residence and for the courts of that country to decide on matters of residence and contact.

The convention applies to any child up to the age of 16 years, who is a habitual resident of any of the contacting states. If the country of destination is a signatory to the Hague convention on the civil aspects of international child abduction, the “left-behind parent”, as they come to be known, can seek legal recourse.

Ninety-four countries are party to this convention and there are procedural rules that apply to the cases including a timeline and how they should be handled. India is not a signatory to the Hague Convention. A country has to have a domestic law in place before it can become a signatory and soon India is going to have a domestic law on it.

India’s stand

According to the Ministry of Women and Child Welfare, the matter of ratifying the Hague Convention was taken up following lobbying by groups in the United States and certain European nations. The pressure from the developed countries to get India to be a signatory to the treaty was based on gender equality and the idea that the father should have equal rights to the child as the mother.

Unfortunately, that doesn’t apply here given the reality of Indian marriages. In some of the cases, husbands have procured orders from US courts which could translate into the woman being arrested the minute she goes back to the foreign country. If the convention is ratified, India has to send the woman and the child back immediately as the act of escaping with the child is treated as abduction. This strips them of the protective cover they have in their own country.

Since India is not a signatory, presently the father has to come to India to take legal recourse in Indian courts if he wants to claim custody of the child.

Judicial Response in India

The Supreme Court had several occasions to deal with such complex emotional issues and it has repeatedly held that repatriation of the child to the foreign land should not (a) cause any moral, physical, social, cultural or psychological harm to the child; (b) cause any legal harm to the parent with whom the child is in India; (c) violate the fundamental principles of human rights and freedoms of the receiving country, i.e., where the child is being held and; (d) considering the child welfare principle, due importance must be given to the primary care-giver of the child.

In the latest case of Surya Vandanan v. State of Tamil Nadu (2015), it has held that primary importance is to decide whether the foreign court has jurisdiction over the child in question if the child is ‘ordinarily resident’ in the foreign court’s territorial jurisdiction and, then the order of the foreign court must be given due weight and respect.

Emotional consequences

Most children who are abducted by a family member suffer tremendous emotional consequences. The parents should prioritise the welfare of the children and the impact on the children due to such action. After Mexico we have more abductions from India than from any other country. The Mexican cases get resolved, the Indian cases don’t.

Unfortunately, women involved in cross-jurisdictional divorces, ‘holiday marriages’ or ‘limping marriages’ have to face additional challenges in the custody battle, which also relate to the problem of jurisdiction, access to judicial recourse and resources. This may be viewed as a bias against the interests of women.

The woman must not be put in a situation where she has to make the impossible choice between her children and putting up with an abusive relationship in a foreign country.

Conclusion

Parental child abduction is a calculated, malicious act committed by a disgruntled spouse/ex-spouse, who may be forum shopping to avoid a fair and timely child custody determination, and who may be in violation of already existing custody orders. This is a violation of a child’s rights as per the law in many jurisdictions. The abducting parent inflicts emotional, psychological pain on the parent left behind without regard to the child’s well being, often with the backing and support of the abductor’s family and legal advisers. Such act deprives the children of parental love and affection, robs them of their family, friends, their home, their identity, and systematically alienates them from a familial atmosphere.

If you have any questions or concerns regarding parental parental child abduction to, or from India feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311

Parental abductions: 70 per cent of children suffer significant mental health effects, report finds


May 24, 2016

Source: abc.net.au

The fallout from the 60 Minutes child recovery saga in Lebanon last month has highlighted the consequences of parental abduction, but little is known about the impact on the children involved.

Faulkner-Tara-Lebanon

The most comprehensive study into the long-term effects of international child abduction found more than 70 per cent of the children involved reported suffering significant effects on their mental health.

British researcher and family law specialist Dr Marilyn Freeman conducted the study which was released last year.

She found children who had been abducted spoke repeatedly about their confusion, feelings of shame, self-hate, loneliness and insecurity.

The study concluded more must be done to protect children from parental abduction and its effects.

‘It was like something was taken from me’

Gaudi Rubio-Thorne would be the first to admit what happened to him more than 35 years ago had an enormous impact.

Gaudi Rubio-Thorne

“It’s definitely influenced the way I think, the way I view the world, the way I interact with others,” he told 7.30.

In 1979, he was just a toddler, living in Launceston with his mother after his parents had separated, but just before Christmas, his Spanish-born father did not return him home after a day out.

His distraught mother, Kayleen Thorne, received a call the next morning.

“He was already in Spain. He said ,’Gaudi’s with me. He’s fine. We’re staying in Spain’,” Ms Thorne said.

She sprang into action. With a 60 Minutes crew along to film the operation, she raced to Spain to retrieve her child, well aware of the possible consequences.

“We would have been in jail, we would have been arrested immediately,” she said.

“We were frightened, but it’s something you do, it’s your mother instinct.”

Gaudi-Kayleen-Thorne.png

Gaudi was successfully returned to his home in Tasmania, but says those events shaped his life.

“I had a lot of anger, especially in my teens,” he told 7.30.

“Substance abuse, definite abandonment issues. I love my mother very much but I take it out on her, take it out on my partners.

“Even though I was taken, it was like there was something that was taken from me.”

He describes his relationship with his father as broken.

“I’ve seen him three or four times when I was growing up, and when I was 17, I went to Spain and spent three or four months with him,” Gaudi said.

“But he wasn’t used to being a father and I wasn’t used to having one.”

‘It really is a lose-lose situation’

Hannah Engdahl is 15 and lives in Canada, but 10 years ago, she and younger sister Cedar were abducted by their father at the end of a three-week holiday with his family in Australia.

Melissa-Hannah-Engdahl.png

“It was the day after they were to return,” mother Melissa Engdahl explains.

“I got a call letting me know they wouldn’t be returning and that they had gone to the Middle East.”

Melissa Engdahl took legal action in three different countries to try to bring her daughters home, and eventually hired a team of ex-soldiers and went to retrieve them herself.

Hannah-Engdahl

Hannah’s father now lives on the other side of the world and for legal reasons cannot come to visit them in Canada.

She misses having him around on a day-to-day basis.

“He wasn’t here for my school plays when I was in elementary school and he’s not here now and he probably won’t be here for my graduation, so I am missing out on really having him here and present in my life,” Hannah said.

“It really is a lose-lose situation when somebody parentally abducts,” her mother, Melissa, added.

“I think there is a lot of guilt for myself, just guilt that I can’t do more to have him more involved in their lives.”

Follow our updates on Twitter and Facebook

Testimonials from our clients

profile pic.jpgdroppedImage_7TM

download (2)

ABP World Group™ Risk Management

Contact us here: Mail 

Skype: abpworld

NOTE: We are always available 24/7