INDIA: SAFE HAVEN FOR INTERNATIONAL PARENTAL CHILD ABDUCTION

Jeremy D. Morley
jmorley@international-divorce.com

I have long asserted that India is a safe haven for international child abduction. See, e.g. I have frequently provided expert evidence on this issue, including in cases in many U.S. states, as well as Canada and Australia.

In May 2019, the U.S. Department reported, in its Annual Report on International Child Abduction, that India does not adhere to any protocols with respect to international parental child abduction and has demonstrated “a pattern of noncompliance” within the meaning of the  International Child Abduction Prevention and Return Act. That legislation requires the Secretary of State to submit to Congress, within 90 day of its Annual Report, an “Action Report” that describes the specific actions that the State Department has taken against countries determined to have been engaged in a pattern of noncompliance.

In July 2019, the Department submitted its Action Report. Unfortunately, the purported “actions” that it has listed with respect to India are mere requests and a couple of diplomatic protests.

The Department describes the actions as follows:

• Throughout the year, officials at the highest levels of the Department engaged with the Government of India on the issue of international parental child abduction. Department officials pressed India to assist with resolving abduction cases and to accede to the Convention.
• In July 2018 and March 2019, the U.S. Embassy in New Delhi delivered diplomatic notes requesting India’s assistance in resolving existing abduction cases. Since February 2019, U.S. Embassy New Delhi has attended sessions of the Indian government’s Mediation Cell at the request of the Indian government to observe the processing of requests submitted to the Mediation Cell.
• In March 2019, the United States delivered a demarche and letter to the Indian government urging India’s accession to the Convention. The letter was signed by the U.S. Ambassador and 38 other Ambassadors or acting Chiefs of Mission representing like-minded countries.
• In May 2019, the Department hosted an IVLP delegation composed of Indian government officials and attorneys. The Department discussed the Convention with the participants, and provided an overview of abduction and prevention resources in the United States, including child-location assistance, attorney referrals, and two parent consent regulations. The participants came away with a clearer understanding of the Department’s views on IPCA, the Convention, and its importance.
• Upon release of the 2019 Annual Report, U.S. Embassy New Delhi delivered a demarche notifying the Indian government that the Department had cited India in the 2019 Annual Report for demonstrating a pattern of noncompliance and once again requesting India’s assistance with resolving existing cases.

The problems concerning India and international child abduction are not merely the fact that India has refused to sign the Hague Abduction Convention. The challenges include the following: The Indian jurisprudence in custody cases concerning internationally abducted children is both confused and confusing. 

• Court proceedings in India in such cases are generally exceedingly slow, unpredictable and difficult, and require the repeated personal presence of the left-behind parent over extended periods of time.
• The courts in India will not normally honor or enforce foreign child custody court orders.
• The courts in India assume custody jurisdiction over internationally abducted children and do not recognize the continuing and exclusive jurisdiction of foreign courts to handle matters concerning the custody of such children
• The courts in India do not issue mirror custody orders.

In my opinion, when the country in question is a well- recognized safe haven for international child abduction such as India, far less evidence that any specific parent is a potential international child abductor should be required in order to justify – and indeed require – a court to take effective steps to prevent a potential child abduction than if the country in question is a compliant party to the Hague Convention.

EXPERT TESTIMONY ON INDIA CHILD CUSTODY LAW

The Federal Circuit Court of Australia has issued a ruling denying a mother’s application for overseas travel from Australia to India to attend her marriage ceremony.

The decision was based in large part on my expert testimony concerning the child custody laws of India and the risks of international parental child abduction for a child traveling to India.
The decision, dated June 14, 2019, is reported at [2019] FCCA 1577.

State Department's Annual Report on International Child Abduction: India

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our fifth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is India.

Country Summary: India does not adhere to any protocols with respect to international parental child abduction. In 2018, India demonstrated a pattern of noncompliance. Specifically, the competent authorities in India persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 71 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for 2 years and 10 months. India was previously cited for demonstrating a pattern of noncompliance in the 2014-2018 Annual Reports.

Initial Inquiries: In 2018, the Department received 16 initial inquiries from parents regarding possible abductions to India for which no additional assistance was requested or necessary documentation was not received as of December 31, 2018.

Significant Developments: In July 2018, India’s Ministry of Women and Child Development directed the National Commission for Protection of Child Rights to constitute a mediation cell to resolve international child custody disputes. Since its inception, this group has been accepting applications from parents in order to assist them with mediating their cases. Mediation is voluntary, and both parents must agree to participate. The United States is not aware of any abduction cases that were resolved through this service in 2018.

Central Authority: In 2018, the competent authorities in India regularly failed to work with the Department of State toward the resolution of pending abduction cases. Moreover, the competent authorities have failed to resolve cases due to a lack of viable legal options, which contributed to a pattern of noncompliance.

Voluntary Resolution: In 2018, six abduction cases were resolved through voluntary means. Location: The Department of State did not request assistance with location from the Indian authorities.

Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Indian law, and parents face difficulties resolving custody disputes in local courts. Some left-behind parents reported difficulty with serving taking parents in India causing delays in court proceedings. Additionally, judicial action in custody cases in India has been slow, and Indian courts tend to default to granting custody to the taking parent. 

Enforcement: While courts in India sometimes granted rights of access to left-behind parents, rights of access were generally not enforced. The United States is not aware of any abduction cases in which a judicial order relating to the return of a child needed to be enforced by the Indian authorities. 

Department Recommendations: The Department will continue intense engagement with the Indian authorities to address issues of concern. The Department will continue to encourage India to accede to the Convention.