Posts
by Jeremy D. Morley
Supervised visitation is sometimes the only effective way to prevent international child abduction, especially when a country does not have effective exit controls.
For
this reason, in a decision dated January 7, 2022, the Superior Court in Ontario,
Canada (Pinto J.) has required that a father’s access to his child should be supervised
in order to prevent him from abducting the child to India or the UAE. The
ruling was based in significant part on my expert evidence concerning the child
custody laws of both India and the UAE and my opinions concerning the risk of
potential international child abduction. Lakhtakia v. Mehra, 2022 ONSC
201.
The
parents are of Indian origin and the father is an Indian citizen with
significant connections also to the UAE. Their child was born in Canada and
then lived with both parents for a time in India. When the parents separated in
India, the mother unilaterally returned the child to Canada and alleged domestic
violence. At trial, I was accepted as an expert qualified to provide expert
opinion evidence before the Ontario Superior Court of Justice as to the matters
before the court concerning international child abduction and the laws and
procedures of India and the UAE.
I
testified that India has purposefully refused to accede to the Hague Abduction Convention,
that it is usually fruitless to initiate litigation there seeking the return of
an internationally-abducted child and that I counsel against it unless the
left-behind parent has great fortitude and very substantial funds.
There
was a sharp disagreement between me and another expert on Indian law concerning
whether or not measures could be required by the Canadian court, or provided by
the father, that would reliably ensure that the child would be returned to
Canada if abducted to India by his father. I did not agree that the current
state of the law in India relating to the enforcement of foreign custody orders
allows for the expeditious return of the child to the custodial parent through
a writ of habeas corpus. I also disagreed with the suggestion that Indian
jurisprudence since 2018 has evolved and allows for the issuance of a “mirror
order” whereby an Indian court would issue an order that contains all the terms
of an order of a foreign court. I clarified that there have been a couple of
Indian cases where the Indian courts have asked courts in foreign jurisdictions
to issue a mirror order, but that does not constitute the Indian court issuing
a mirror order. The court adopted my evidence that there were no such measures
and that the risk of abduction was too high, given the specific facts of the
case. Judge Pinto determined that the father was a flight risk and was
untrustworthy. Accordingly, and also because the father had spent little time
with the child, he determined that unsupervised visitation presented too great
a risk.
On
cross-examination, and as summarized by the court, I explained that, in cases arising
from the abduction of a child to India, the Indian trial courts normally make a
de novo custody review of the best interests of the child; that they have tremendous discretion as to how to apply that
test; that the first court’s decision is generally reviewed by a first appeal
court, and then often by a second appeal court; that it is “utterly
unpredictable” as to whether the process would be expedited; that there are
many ways in which the parent who wants the child to remain in India can use
the procedures of the Indian legal system to lengthen the time over which the
court considers the issue; and that, given that a long time has passed, the
Indian courts regularly determine that the child has become well settled in
India so that it would be unfair to return the child to the foreign
jurisdiction.
With
respect to the UAE, I testified that that country has chosen not to accede to
the Hague Convention, and that the U.S. government has reported to Congress
that “The UAE does not adhere to any protocols with respect to international
parental child abduction,” that the UAE authorities persistently failed to work
with the American Department of State to resolve child abduction cases, and
that 50% of requests for the return of abducted children remained unresolved
for more than 12 months. I further testified that the concepts of child custody
and guardianship in the UAE are completely different than a Canadian or
American context and encompass age-specific and gender-specific criteria, and I
explained the UAE rules concerning travel bans.
I
further opined as to the risk factors concerning international child abduction,
the applicability of those factors to the facts with which I had been provided
and the need to balance the laws and procedures concerning the return of
abducted children of a foreign country with the level of risk presented by the
application of the risk factors to the facts of the case.
The
court ultimately adopted and applied my conclusions that:
(i) If the father were able to remove the child from
Canada in defiance of Canadian court orders, there was an extremely significant
risk that the mother would be unable to secure the child’s return or even to
obtain access to the child,
(ii) The facts with which I had been presented, if
true, showed that there was a significant risk that the father would not comply
with the terms of a Canadian court order, and
(iii) The only way to effectively prevent the father
from taking the child overseas was to require that the father’s access to the child
be strictly supervised.
