India's Approach to International Child Abduction: Balancing Domestic Laws and Hague Convention Principles.
International Family Lawyer || LLM Candidate at University of California, School of Law.
March 15, 2023
" Protecting a child's best interests knows no borders."
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that tries to safeguard children from the adverse effects of cross-border parental abduction. Let's talk about basic facts about the Hague Convention and how it affects India.
India is not a signatory to the Hague Convention, which means that the provisions of the Convention do not apply in situations of child abduction to or from India. Nonetheless, India has worked to resolve the issue of parental kidnapping through its own legal framework as per the criminal codes and through diplomatic agreements with other nations.
India has taken steps to ensure that its domestic laws are in accordance with the tenets of the Hague Convention despite not being a signatory to it. For instance, the Indian courts have acknowledged the Hague Convention's central concept of "habitual residency" in deciding the jurisdiction of child custody disputes.
In order to expedite the return of kidnapped children, India has also signed bilateral agreements with a number of nations, including the US, the UK, Australia, and Canada. In order to resolve incidents of international child abduction, these accords call for cooperation between the two nations.
As mentioned above, while India is not a signatory to the Hague Convention, it has taken into consideration several of its key principles in its domestic legal system and through bilateral agreements with other countries. These principles are as follows.
The Principle of the Best Interests of the Child
The Hague Convention places the best interests of the child at the forefront of any decision-making process related to child custody or visitation. This principle is also recognized by Indian courts and is taken into consideration when deciding on child custody cases.
The Principle of Habitual Residence
The concept of "habitual residence" is a key principle under the Hague Convention. It refers to the place where the child has been living before the abduction or retention. Indian courts have also recognized this principle in determining the jurisdiction of child custody cases.
The Principle of Prompt Return
The Hague Convention aims to ensure that abducted children are promptly returned to their country of habitual residence. While India is not a signatory to the Convention, it has entered into bilateral agreements with several countries to facilitate the prompt return of abducted children.
The Principle of Non-Discrimination
The Hague Convention prohibits discrimination on the basis of nationality, race, religion, or any other status. Indian courts also recognize this principle in child custody cases.
Ultimately, despite not being a member of the Hague Convention, India has made steps to address the problem of international kidnapping by developing its own legal framework and negotiating bilateral agreements with other nations. India may decide to adopt the Hague Convention in the future to strengthen its efforts in this area. The Convention is still a crucial piece of international law for preventing and resolving cases of parental abduction.