In a significant development, the Supreme Court today issued notice to the Central government in a petition seeking guidelines for countering International Parental Child Abduction (IPCA)..A Bench of Justices Rohinton Fali Nariman and Navin Sinha issued notice in the petition by an NGO Bring Your Kids Home and two parents, Nihar Panda and Siminder Kaur..Senior Advocate Jayant Bhushan appeared for the petitioners along with advocates Shadan Farasat, Talha Abdul Rahman, Rudrakshi Deo and Chirayu Jain. .International Parental Child Abduction.As per the petition, International Parental Child Abduction, is “the illegal removal of children from their home country by a “taking” parent to a foreign country or the illegal retention of children in a foreign country by the taking parent.”.“The taking parent is either violating or refusing to honor existing custodial order or custodial rights of the other parent. Children are taken without the other parent’s consent or a court order from the jurisdiction where children habitually reside, and thus wrongfully retained in a foreign country. IPCA is a form of child abuse and a crime against children, perpetrated by a parent, not a stranger. Children are deprived of the love and affection of the parent left behind, often subjected to and sustain mental manipulation to believe the parent left behind is the cause of their problems, and robbed of their sense of security, leading to parental alienation and other serious consequences.”.The petition states that the facts that constitute the cause of action are that “today India is one of the top destinations of international parental child abductions from the U.S. (Amongst Top 2) and U.K. (Amongst Top 3). The rates of parental child abductions to India are alarming.”.Legal vacuum.The petitioners have submitted that India does not have any law, guidelines or any kind of framework to deal with such cases..“Despite the alarming rates of child abductions, neither the United States nor India have put in place a mechanism to remedy the human suffering, the proof of which lies in the ever increasing volume of unresolved abductions cases to India, over 50% of them pending for five (5) years or more. These cases are often treated as “child custody” cases in Indian Courts and the abducting parent often gets “custody” of the children, despite contrary Court orders from jurisdiction where the children are/were habitual residents.”.Hague Convention on Child Abduction, 1980.In 1980, various nation states concluded the Convention on Civil Aspects of the International Child Abduction at Hague, Netherlands (Hague Convention of Child Abduction). The Convention is based upon the notion that the child should be promptly restored to his or her country of habitual residence, so a court there can examine the merits of the custody dispute. This is because the Court in the country where the child has habitual residence is in a better position to consider the child’s best interests. The Convention further provides for a legal mechanism for countries to work together on child abduction cases. It requires for the formation of a Central Authority which is supposed to help locate abducted children, help encourage amicable solutions to parental abduction cases, and help process requests for return of children within 6 (six) weeks of filing a return application..However, India is not a signatory to Hague Convention..Law Commission Report and Draft Bill.In March, 2009, the Law Commission of India in its 218th Report recommended that India should ratify The Hague Convention on Child Abduction, 1980. It further observed that the Indian Courts while deciding cases have not followed a uniform pattern..In June 2016, the Ministry of Women and Child Welfare of the Government of India recognizing the gap in the law on India, put up on its website a draft bill titled “The International Child Removal and Retention Bill, 2016”, which was drafted on the assumption that India would soon ratify The Hague Convention on Child Abduction, 1980..Subsequent to this bill being released in the public domain, the Law Commission of India again considered the issue of the International Parental Child Abduction pursuant to the directions of the Punjab and Haryana High Court..Back to square one.The petitioner has submitted that despite these developments, the Central government decided not to proceed ahead with the bill and resolve the pending issues and gaps in law, in effect allowing the status-quo to continue.“Despite several pleas, Indian law does not even recognize international parental child abduction as a legal issue, leave alone a crime. In India, there is no legislation or guidelines by the Government to deal with such cases and matters of custody have so far been left largely to be determined by the Courts. There has been no uniform policy followed by the Courts, which tends to treat the issue of child removal as a custody dispute between parents. This is clearly in contravention of India’s international obligations.”.It is the argument of the petitioner that it becomes imperative that the Court issues guidelines to ensure smooth resolution of cases of International Parental Child Abduction..“That in light of the factual and legal position, and in light of the gap in Indian domestic law, despite clear international obligations of India, it has become necessary that this Hon’ble Court issue necessary guidelines to ensure smooth resolution of cases of International Parental Child Abduction, including but not limited to appropriate administrative and/or judicial procedure for returning a child back to his/her country in a time-bound manner.”.The petition also sets out specific guidelines regarding procedure that the Court could consider issuing to fill the legal vacuum..The Court proceeded to issue notice to the Central government and its concerned Ministries..Read the petition and order below. .Image of Justice Navin Sinha taken from here.
In a significant development, the Supreme Court today issued notice to the Central government in a petition seeking guidelines for countering International Parental Child Abduction (IPCA)..A Bench of Justices Rohinton Fali Nariman and Navin Sinha issued notice in the petition by an NGO Bring Your Kids Home and two parents, Nihar Panda and Siminder Kaur..Senior Advocate Jayant Bhushan appeared for the petitioners along with advocates Shadan Farasat, Talha Abdul Rahman, Rudrakshi Deo and Chirayu Jain. .International Parental Child Abduction.As per the petition, International Parental Child Abduction, is “the illegal removal of children from their home country by a “taking” parent to a foreign country or the illegal retention of children in a foreign country by the taking parent.”.“The taking parent is either violating or refusing to honor existing custodial order or custodial rights of the other parent. Children are taken without the other parent’s consent or a court order from the jurisdiction where children habitually reside, and thus wrongfully retained in a foreign country. IPCA is a form of child abuse and a crime against children, perpetrated by a parent, not a stranger. Children are deprived of the love and affection of the parent left behind, often subjected to and sustain mental manipulation to believe the parent left behind is the cause of their problems, and robbed of their sense of security, leading to parental alienation and other serious consequences.”.The petition states that the facts that constitute the cause of action are that “today India is one of the top destinations of international parental child abductions from the U.S. (Amongst Top 2) and U.K. (Amongst Top 3). The rates of parental child abductions to India are alarming.”.Legal vacuum.The petitioners have submitted that India does not have any law, guidelines or any kind of framework to deal with such cases..“Despite the alarming rates of child abductions, neither the United States nor India have put in place a mechanism to remedy the human suffering, the proof of which lies in the ever increasing volume of unresolved abductions cases to India, over 50% of them pending for five (5) years or more. These cases are often treated as “child custody” cases in Indian Courts and the abducting parent often gets “custody” of the children, despite contrary Court orders from jurisdiction where the children are/were habitual residents.”.Hague Convention on Child Abduction, 1980.In 1980, various nation states concluded the Convention on Civil Aspects of the International Child Abduction at Hague, Netherlands (Hague Convention of Child Abduction). The Convention is based upon the notion that the child should be promptly restored to his or her country of habitual residence, so a court there can examine the merits of the custody dispute. This is because the Court in the country where the child has habitual residence is in a better position to consider the child’s best interests. The Convention further provides for a legal mechanism for countries to work together on child abduction cases. It requires for the formation of a Central Authority which is supposed to help locate abducted children, help encourage amicable solutions to parental abduction cases, and help process requests for return of children within 6 (six) weeks of filing a return application..However, India is not a signatory to Hague Convention..Law Commission Report and Draft Bill.In March, 2009, the Law Commission of India in its 218th Report recommended that India should ratify The Hague Convention on Child Abduction, 1980. It further observed that the Indian Courts while deciding cases have not followed a uniform pattern..In June 2016, the Ministry of Women and Child Welfare of the Government of India recognizing the gap in the law on India, put up on its website a draft bill titled “The International Child Removal and Retention Bill, 2016”, which was drafted on the assumption that India would soon ratify The Hague Convention on Child Abduction, 1980..Subsequent to this bill being released in the public domain, the Law Commission of India again considered the issue of the International Parental Child Abduction pursuant to the directions of the Punjab and Haryana High Court..Back to square one.The petitioner has submitted that despite these developments, the Central government decided not to proceed ahead with the bill and resolve the pending issues and gaps in law, in effect allowing the status-quo to continue.“Despite several pleas, Indian law does not even recognize international parental child abduction as a legal issue, leave alone a crime. In India, there is no legislation or guidelines by the Government to deal with such cases and matters of custody have so far been left largely to be determined by the Courts. There has been no uniform policy followed by the Courts, which tends to treat the issue of child removal as a custody dispute between parents. This is clearly in contravention of India’s international obligations.”.It is the argument of the petitioner that it becomes imperative that the Court issues guidelines to ensure smooth resolution of cases of International Parental Child Abduction..“That in light of the factual and legal position, and in light of the gap in Indian domestic law, despite clear international obligations of India, it has become necessary that this Hon’ble Court issue necessary guidelines to ensure smooth resolution of cases of International Parental Child Abduction, including but not limited to appropriate administrative and/or judicial procedure for returning a child back to his/her country in a time-bound manner.”.The petition also sets out specific guidelines regarding procedure that the Court could consider issuing to fill the legal vacuum..The Court proceeded to issue notice to the Central government and its concerned Ministries..Read the petition and order below. .Image of Justice Navin Sinha taken from here.