A safe haven for international child abductors
A child goes missing every 8 minutes in India, with more than 64,000 children officially reported missing from 2016-18. Bachpan Bachao Andolan (Save the Childhood Movement), an NGO working for child rights, believes that the real numbers of missing children are up to 10 times higher than official reports because the majority of trafficking victims aren’t included in these numbers.
In a performance review, TrackChild, the national portal for missing children shows that while 237,040 children went missing across India between 2012 and 2014, 40% of the cases went unreported by police. Girls are more likely to go missing than boys, as 66% of all reported missing children are girls between the ages of 12-18. Children are reported missing for a number of reasons including trafficking, forced child labor, runaways and kidnapping. Kidnapping is a growing crime, with reported abductions rising from 15,284 in 2011 to 41,893 in 2015.
As parental abduction is not a crime in India, these numbers do not include the number of children abducted by parents or family members. There is also a wide reluctance on the part of law enforcement to investigate missing children as such cases are rarely resolved. In many cases, parents who are poor or lack influence are dismissed by the police and unable to appeal for help. Parental alienation may also be a serious issue for children who experience divorce. Courts in India tend to grant single custody to mothers (there is a bias towards them as primary caregivers) which alienates children from their fathers. There are currently no studies on the effects of parental alienation in India – but this is a growing concern with divorce rates having doubled in the past 20 years.
Recognize parental abduction as a crime. India does not criminalize parental abduction, so even if a child is legally granted time with both parents, one parent can kidnap the child and alienate the other with no criminal consequences. In many cases, the lack of such a law results in parents violating custody orders with little consequence. The only thing the left-behind parent can do is file a case in Family Court which takes years to resolve, depriving children of the love and care of both parents.
Make joint custody the default approach. The rising rate of divorce in India is increasing the issue of parental alienation amongst children. It is children who are the main victims of custody battles. While courts in Karnataka and Delhi have acknowledged the value of shared parenting practices – in most cases courts decide who receives primary custody. There is a need to educate judges and develop a legal culture that does not treat children as commodities in the case of divorce. The Supreme Court of India recently stated that ‘a child has a right to both parents’ to ensure visitation rights are followed, but joint custody is not yet the default approach.
Sign the Hague Convention. India is one of the few countries that has not signed the Convention on the Civil Aspects of International Child Abduction as it believes most Hague Convention cases are not “parental abduction” but “flights to safety” of women fleeing abusive relationships. This means if your child is abducted to India there can be no automatic extradition. Recent legal revisions make foreign custody orders just items to consider as part of an overall custody review. Despite international pressure, India has not signed the Convention and is unlikely to do so in the near future.
Around 45% of the population is married, with India having the lowest divorce rate in the world at merely 1%. This is mostly because of the financial dependence of women and societal pressure to keep marriages intact. In cases of divorce, present custody laws focus on identifying the primary caregiver in order to grant sole custody. While both parents have an equal claim to custody, courts tend to favor women as they are automatically seen as primary caregivers – especially in cases of very young children. In 2015, the Law Commission of India listed conditions under which courts should consider joint custody, which is prompting more courts to consider shared custody.
Family laws (known as personal laws) relating to marriage, divorce and custody are regulated by the Central Government but based on religious laws of different populations. For example, under Muslim law, the mother has sole custody of her children until a certain age, unless she is unfit. According to Muslim law, the mother has custody of her son until he is 7 years old and custody of her daughter until she reaches puberty or is married. Christians having no prescribed laws, follow the Divorce Act or Special Marriages Act, which is used for marriages between persons of any or no religious affiliations. These multiple laws for different groups can further complicate custody cases with regards to parents from different religious groups.
Parental abduction goes largely undocumented within India as is not a crime. Parents can abduct a child because they disagree with the custody order, fear harm to the child, want to take revenge on the other parent, or for a number of other reasons. The large percentage of people living in poverty prevents many from asserting their rights as parents. Abduction by a parent is seen as a ‘family matter’ and in many cases does not even reach the courts. Police have no jurisdiction over such cases as abduction or kidnapping by a parent isn’t criminalized. Such cases are recorded as custody issues and can only be resolved by a court order. The huge number of pending cases makes Family Courts almost entirely ineffective by delaying justice. It also allows parents to easily dismiss court orders to do as they please since they cannot be prosecuted or detained by police.
India is widely recognized as a safe haven for international child abductors. Cases are on the rise because of the increasing number of Indians living abroad. India is among the top ten nations to which a child kidnapped from the UK is taken and number two on the list of nations of children wrongfully abducted from the US. Mexico is the top country where children from the US are taken – however, unlike India, many children abducted to Mexico are returned. In 70% of cases of children abducted to India, it is the mother who removes the child. From 2010 to 2014, 173 parental abduction cases to India were registered in the US – out of which only 22 cases were resolved with the children returning home to the United States. International child abduction is not a crime under Indian law and no Indian legislation contains any provisions to deter international child abductions. Since India is not a signatory to the Hague Convention, children abducted to India cannot be returned under the convention. Cases of parental abduction are further complicated by the Indian court system, which has one of the largest backlogs in the world. It can take up to 10 years to resolve cases – a length of time that allows the child to settle in India and help the abducting parent create “facts on the ground” which prompts the court to decide in favor of keeping the child in India.
Parental alienation can have serious adverse effects on the emotional well-being of the child. Thousands of children in India are being deprived of the love and affection of one of their parents. Fathers, as the most common non-custodial parent, are losing access to their children. In almost every divorce case, children encounter the problem of alienation from one parent. However, the concept of Parental Alienation Syndrome (PAS) was only recognized by the Indian Supreme Court in 2017.
Children are often forced to adapt to new families after a parent remarries. In many cases, the stigma of divorce forces children to keep it a secret from friends and neighbors and foster a pretense of being an ‘intact’ family. Sudha Ramalingam, a family law expert, believes there is a “serious scarcity” of trained child psychologists in family courts in India, making it difficult to deal with children facing Parental Alienation Syndrome. Some don’t believe criminalizing parental alienation will help since India’s social institutions are so terrible that jailing parents might leave children at the mercy of the state, a fate far worse than PAS. NGOs like Child Rights Initiative for Shared Parenting (CRISP) are petitioning courts to recognize issues arising from PAS and asking for shared parenting to be considered the default scenario in custody cases.
To discover a child is missing is very traumatic. It is important to remain calm and seek assistance from family, friends and appropriate professionals. The process of obtaining your child can be complicated, with lengthy search and recovery efforts which may be unsuccessful. As there is no law in India against parental abduction, you cannot register your complaint with the police. Here’s what you can do:
Do not expect results within a few days, since such cases can take months or even years. Managing your expectations will help you deal better with the process overall. Here are some reasonable outcomes you can expect:
If your child is missing, you can access these portals to upload information of your child and learn of any information regarding your child:
Thanks to Rachel Rao for the contribution in producing this country page.
The materials available on this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.