India is not a signatory of the 1980 Hague Convention that seeks to protect children from wrongful removal across international borders. But with increasing cases of parental child abduction, is it time for India to rethink its position on the treaty?
Fifteen-year-old Vividha has the calm of one beyond her years as she stands in court number eight of the Supreme Court of India and listens to two lawyers argue over which of her parents should have her custody. Then, as the judge starts to speak of the complexities of the case, Vividha raises a hand requesting that she be given a chance to say something. “I was six years old at the time. I was visiting my maternal grandparents with my mother. We had gone out to have pao bhaaji. I was happy. When we returned home my mother asked me who would I like to stay with – she, or my father. How should a six-year-old answer that question?” she asks the court, before continuing, “I said I wanted to live with both of them. My mother was upset at my answer and stormed out of the room, banging the door behind her. Who behaves like this with a six-year-old child?” Vividha’s careful composure breaks, as does her voice. Tears fill her eyes.
What seems like a usual courtroom drama over a custody battle is made more complicated by the fact that Vividha’s mother, Sapna, is a British citizen who alleges that the family was living in UK in 2009, when Vividha’s father “abducted” their daughter and brought her to India, illegally and without informing her mother. Since then, Sapna’s lawyer alleges, Vividha’s father and his family have poisoned the young girl’s mind against her mother, with the effect that at 15, Vividha doesn’t want to live with her mother – an allegation rubbished by her father’s lawyer.
The Hague Convention on the Civil Aspects of International Child Abduction, 1980, is a multilateral treaty that seeks to “protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return”. According to the Convention, the removal or retention of the child will be considered wrongful when “it is in breach of rights of custody attributed to a person… under the law of the State in which the child was habitually resident”. Though the Convention doesn’t use the phrase “parental child abduction” it can be interpreted to be used in such cases where countries are signatories to the Convention, says lawyer Anil Malhotra, who has over 30 years of experience in handling parental child abduction cases and has written a book on the subject. India is yet to become a signatory of the Convention.Now, under mounting international pressure, and faced with a growing number of such cases, the Ministry of Women and Child Development is scheduled to meet on February 3 to review its stand on the treaty.
Gone for good?
“As of August 2016, there were more than 80 cases of parental child abduction from the US to India. India has the second highest number of such children being taken out of the US. And the number is growing. The year before India had the third highest number of such cases,” says Rakesh Agarwal, a US resident, who says his son was “abducted” by his wife in 2012. US is not the only country from where children are being brought to India by parents trying to break out of a marriage while keeping the children with them. “India is among the top ten destinations where children are being taken to from UK,” says Vicky Mayes, development and external communications liaison officer, Reunite International Child Abduction Centre, an organisation which was started by a group of mothers 30 years ago to support each other in their fight with their spouses to bring their children home. “According to a study done by the British government in 2013, the number of parental child abduction cases have doubled between 2003 and 2013. At Reunite, we get about 500 to 600 such cases every year,” says Mayes.
In the US, Agarwal is part of a similar group called “Bring Our Kids Home” – a two-and-a-half-year-old organisation that works to spread awareness about parental child abduction and also acts as a pressure group to bring in policy changes to address the issue. “When my wife left with our three-year-old son, for the first six months I didn’t even hire a lawyer. I didn’t know about the Hague Convention. I didn’t know a parent can ‘abduct’ his or her child. I guess, I kept hoping that my wife will return with our son,” he says.
He remembers dropping his wife and son off at the airport in US. “My wife’s sister was getting married and my wife was going to India with our son for three weeks. I was to join them in a week. My wife and son were standing in queue for the security check and my son kept running back to where I was standing to hug me,” he says.Agarwal alleges that a few days before the family was to return to the US, Agarwal’s father got a call from his father-in-law informing him that his wife and son wouldn’t be going back to the US. “There had been problems in our marriage, but before that call I had no idea about my wife’s intentions. “I tried to reason with her to return, or at least let me return to the US with my son, but she threatened me that I would be held responsible if anything happened to her. I took that as a threat to her life, and was coerced to leave my son in India. I returned hoping that she would return once she cooled down. When she didn’t do so even after six months, I was forced to seek legal help,” says Agarwal.
When marriages break down, children are the first to become collateral damage in the battle that almost always ensues over custody. When the battle spills beyond the borders of one country, it gets uglier and more complicated. And as in every dispute there are, of course, two sides to the argument.
“There are many reasons for one parent to just take the child and disappear, instead of fighting a custody battle in the country of residence. One does it when he or she fears that there is a stronger chance of the other parent getting custody, or when they fear that they don’t have the resources to fight a legal battle in the country of residence and have a support system in the country of origin. Often, in case of a messy divorce, the child is also used by one parent to score a point,” explains Malhotra, who handled his first case of parental child abduction in 1986. “With globalisation as more Indians move abroad to live and work, and with more cross-national marriages, such cases are on the rise. In the last 10 years the number of such cases that I get has gone up by at least three times. On an average I get about three cases of parental child abduction every month,” he says. Since India is not a signatory to the Hague Convention, those parents who are trying to run away with their children feel the country is a safe haven, says Malhotra. “It has given the country a bad name internationally,” he adds.
Not a custody battle
In the absence of laws, a case of abduction, says Agarwal, is treated as a case of custody battle in India. “In countries that are signatories of the Convention, a court in the country where the child had been residing passes an order that a child be returned. The court in the country where the child has been brought to passes a mirror order. This is not an order of custody. It just means that the child be taken back to the country of habitual residence where both parents may then file for custody,” explains Malhotra.
India is not only not a signatory of the Convention, but also does not yet recognise removal of child by a parent as an offence. Thus the only legal route open to the left-behind parent is to initiate legal proceedings in the country of habitual residence and then armed with the order from that court, come to India and file a case of Habeas Corpus in India. Once the child is produced in court, the case turns into a custody battle. “It is a long and slow process in India. Further there are very few lawyers in India who are aware of the law and who have the expertise to take on such cases. The cost to the left behind parent are sometimes prohibitive and they simply can’t afford to do so,” says Anne-Marie Hutchinson, a specialist in family law in the UK ,and an expert on the Hague Convention.
The in-between years
Time is crucial because of how it impacts the children. Anita Rastogi, whose son was “abducted” by her husband as a toddler and who managed to get him back only after a search of four years, says it affected her relationship with him. “When he came back to me, he couldn’t accept my new partner and daughter. We had to undergo counselling and family therapy, but even today my relationship with him is strained,” she says. Left-behind parents allege it also gives time to the other parent to manipulate the child’s feelings against them.
India’s original reason for not signing the treaty, say some, was because the government felt that most cases of child removal are committed by women trying to escape a bad or abusive marriage in another country and criminalising this and forcing her to return to the country of habitual residence would add to her problems. Mayes agrees that in 70% of cases, even today, it is the mother who removes the child. “But I don’t believe that it is a good argument anymore to not sign the treaty,” says Malhotra. “Unlike in the eighties and nineties when a woman marrying outside the country was financially dependent on her spouse and had little access to resources, today most of these women are employed, have access to the laws and are aware of their rights,” he says. To be a signatory to the Hague Convention, a country needs to have a domestic law on wrongful removal and retention of a child. In 2016 the Ministry of Women and Child Development drafted a Bill against parental child abduction . The Bill is available on the department’s website, but it is yet to be passed. The Law Commission of India in a report has also advised that India become a signatory of the Hague Convention.
Steeped in stereotypes
In the absence of a law, at present, Deepti Khanna, a US resident who alleges that her husband “abducted” their daughter in 2014, feels that the decision in favour of or against the left-behind parent “is dependent on the discretion of the judge. There is no rule of law.” She explains, “There are various kinds of stereotypes at work. Where the child has been removed by the mother, often the judge decides in her favour because the mother is believed to be the better caregiver. However, when the child has been removed by the father, there is often pressure on the mother to return to India for the sake of the family and stay with the child here. If you are reluctant to return, it is a count against you,” she says.
Her words might have been a summation of the battle being fought between Vividha’s parents. “The problem we are faced with is that you are in UK, and the child doesn’t want to go there. Can’t you return to India for a while,” asks the judge of Vividha’s mother, even as her father’s lawyer tries to convince the judge that the child is well settled here and happy with her father. As her mother pleads that they be allowed to return to UK, “I have a second daughter there who is undergoing medical treatment in UK,” she says, the judge voices his perplexity. “In such cases we have to also take into consideration the emotions of the various parties. I wonder whether I am even the right person to decide this,” he questions.
( Names of parents and children have been changed to protect identities)