‘Inter-parental’ child abduction may soon become an offence in India

July 29, 2016

Source: hindustantimes.com

Anita Singh (name changed), a non-resident Indian woman who forcibly brought her six-year-old daughter to India from the United Kingdom against the wishes of the father, was ordered by the Delhi high court last week to return with the child.


A UK court earlier directed Singh, who is involved in a marital dispute with her husband, to repatriate. Singh, however, ignored the order.

This was one of the few cases where an Indian court has held that removal of a child from the place of her habitual residence was against her best interest.

In the absence of a domestic law on “inter-parental child abduction” in India, very often children of such NRI’s who have grown up abroad become silent victims of their parents’ marital dispute when they are forcibly brought back by one of the parents.

But this is set to change.

Like 90 countries that are signatory to the 1983 Hague Convention on the Civil Aspects of International Parental Child Abduction, forcible removal of a child from a country where they are habitually residing to India may soon become an offence.

The Hague Convention seeks “to protect 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.”

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.

The Union ministry of women and child development (WCD) has drafted the Civil Aspects of International Child Abduction Bill, 2016, that once approved will facilitate prompt return of any child under 16 who has been “wrongfully removed to or retained in other state which is not his/her habitual residence.”

“We have put the bill on the ministry’s website (www.wcd.nic.in) and invited suggestions. Once the process is over, the bill will be finalised and taken to the cabinet,” a ministry official said.

The draft bill was readied following a reference from the Punjab Haryana high court to the WCD ministry and the Law Commission of India to examine the issue. The Law Commission recommended that India should frame a domestic law and sign the Hague Convention in its 218th report.

“But nothing happened. Issues related to children welfare are not a priority for us. It’s about time now. The intention is not to punish parents but to rebuild the family,” Anil Malhotra, international family law practitioner who has argued a number of inter-parental child abduction cases, said.

“In a majority of the cases, such children who have adapted to the culture of the country they are residing become very miserable once they are uprooted from their and brought to India,” he added.

The bill, Malhotra says, will provide an enabling legislation to implement the provision of the Hague convention that provides an expeditious method for returning a child.

“Signing the convention will ensure enforcement of custody orders of foreign courts. Presently, a parent takes advantage of the absence of a domestic law and knows if he/she brings the child to India it will be difficult to enforce the custody order of a foreign court,” he said.

The draft law mandates setting up of a central authority, to be headed by a joint secretary level officer, where an aggrieved parent can approach for the return of a child. The authority would have the power to decide all such cases.

In the US and Europe, inter-parental 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 was removed.

“As of now, in most of the matters decided by the Indian court, the criminal offence and its penalties are often not pressed by the aggrieved parent to enable a settlement in the matter in the best interest of the child,” Malhotra added.

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What Qualifies as Parental Kidnapping / Abduction ?

Source: Houston Divorce Blog

While parental kidnapping laws vary from state to state, two main factors determine whether a parent’s act qualifies as parental kidnapping:

  1. The status of child custody
  2. A parent’s motives in taking a child away from the other parent

Child custody status

Texas law criminalizes anyone (including a parent) who takes a child knowing that he or she is violating a child custody order. If you are the parent with custody over your child, the child’s other parent cannot do anything that violates the terms of your custody order. Also a parent may not move a child out of the judicial district area if he or she knows that a custody case is currently pending without seeking the permission of the court. Finally, Texas law makes it illegal for non-custodial parents to entice or persuade their children to leave the custodial parent or anyone else acting in that capacity.

For parents who would legitimately like to move, they have to petition the court with jurisdiction over the child custody case. This petition gives the non-custodial parent a chance to oppose the move. While the petition is pending, an act of the non-custodial parent to take the child away to avoid the move would be parental kidnapping.

The motives of a parent taking a child

If no child custody order is in place, the law generally assumes that both parents have equal rights to care for and spend time with their children. Brief trips and vacations with the child – even out of state – can be lawful assuming that the parent taking the child did so in good faith. Parents may not, however, take a child to hide him or her from the other parent or to terrorize the other parent. Many states, including Texas, criminalize this type of intent where one parent maliciously uses the child against the other parent.

Have you been involved in a parental kidnapping case? How were the courts able to help secure the return of your child?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

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