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Child Abduction - Indian and International Laws Against Child Abduction

Although abductions by non-family members receive more public attention, a significant number of child abductions are committed by family members or noncustodial parents commonly called parental kidnapping. Contrary to common belief, a parental kidnapping can have a deeply traumatic effect on the child. They must suffer the consequences of being uprooted from the home, deprived of the other parent, and forced to spend a life on the run. Child abductions are difficult and complex to deal with when they occur within Canada. When they involve other countries, which is quite often the case, they are even more so. There are a number of methods, and steps, that may be considered when making provisions for the safety of children. After a child has been abducted there is an even more defined series of steps that should be taken. This is a bewildering and often prolonged experience. When it is suspected that a child may be abducted, or has already been so, there is a proper way to handle the situation which will be discussed here through preparation and prevention, and also search and recovery.

What is Child Abduction

Child abduction or child theft is the unauthorized removal of a minor (a child under the age of legal adulthood) from the custody of the child's natural parents or legally appointed guardians.

The term child abduction includes two legal and social categories which differ by their perpetrating contexts: abduction by members of the child's family or abduction by strangers:
# Parental child abduction is the unauthorized custody of a child by a family relative (usually one or both parents) without parental agreement and contrary to family law ruling, which may have removed the child from the care, access and contact of the other parent and family side. Occurring around parental separation or divorce, such parental or familial child abduction may include parental alienation, a form of child abuse seeking to disconnect a child from targeted parent and denigrated side of family. This is, by far, the most common form of child abduction.

# Abduction or kidnapping by strangers (by people unknown to the child and outside the child's family) is rare. Some of the reasons why a stranger might kidnap an unknown child include:
o extortion to elicit a ransom from the parents for the child's return
o illegal adoption, a stranger steals a child with the intent to rear the child as their own or to sell to a prospective adoptive parent
o human trafficking, stealing a child with the intent to exploit the child themselves or through trade to someone who will abuse the child through slavery, forced labor, or sexual abuse.
o murder

Causes of Child Abduction

# Unemployment.
# Poverty.
# Illiteracy.
# Religion.
# Greed.
# Politics.
# Corruption.

Preparation and Prevention
Knowing Who, Why & When
The act of parental kidnapping is often provoked in some way by the break-up of the child’s father and mother. It may be the actual court filing of divorce papers; the remarriage or serious emotional involvement of one parent with another partner; conflict over child support; child custody; or visitation. If there is the possibility of divorce, separation, or dissolving a non-marital partnership, do not ignore threats of abduction made by the partner. They may be indicating a growing frustration that may motivate him or her to disappear with the child. It may help to consult a family counsellor to explore the problems of co-parenting and abduction fears.

Healthy Home Atmosphere
The most important means of prevention is one that is to be worked on everyday whether there is the possibility of abduction by family members or non-family members; and that is healthy communication. Repeated assurance of love for the child is needed along with the fact that this is unconditional no matter what anyone else says. Children, at a young age, need to be taught their telephone number and area code and also how to dial the phone. Instruction on how to contact other family members or close friends may also be helpful. Trust and support should be built so that children feel secure is discussing situations that may have made them afraid.

Child’s Information List
There are several steps that should be taken to be prepared in case the child is abducted. Keep a complete written description of the child, including hair and eye colour, height, weight, date of birth, and specific physical attributes. A colour photograph of the child should be updated every six months and kept with the written description. This simply helps in the child’s identification.

Former Partner’s Information List
If a parental kidnapping is likely, keep lists of information about the former partner. Along with a written description of the person’s physical properties there should be included the person’s Social Insurance Number, driver’s license number, car registration number, checking and savings account number’s, and other information that may be of assistance in locating the abductor. Discretion is important in obtaining this information so as not to provoke a kidnapping or cause the other partner to change these pieces of identification.

Search and Recovery
Once an abductor leaves the province, or especially the country, the search becomes much more difficult. Unfortunately, this is usually the case. When it is believed that the child has been taken further distances, the provincial/territorial and federal governments co-operate closely in assisting parents. There are hundreds of active cases that involve Canadian children who have been illegally removed from Canada, or who have been prevented from returning home by one of their parents. To advance the process of the search and the anticipated return it is a good idea for the parent to be directly involved with officials.

General Advice
To discover a child is missing is very traumatic. It is important to remain as calm as possible and seek assistance from family, friends and appropriate professionals. Since the process can be complicated, the search and recovery efforts are sometimes lengthy and often unsuccessful. Because of this, unrealistic expectations should not be made, or results wanted within a few days or – in some cases – even months. Reasonable goals and expectations may include:
# Obtaining early confirmation of where your child is located;
# Obtaining early confirmation of the well-being of your child;
# Arranging a meeting, as soon as possible, between your child and a Canadian official;
# Becoming informed about your legal situation both in Canada and in the country where your child is located;
# Understanding the limitations and constraints that may affect the return of your child to Canada;
# Learning about the legal process;

Understanding the potential financial implications for you and other members of your family in the search and recovery process.

One of the most important things for a parent to do is establish friendly contact with the relatives and friends of the abducting parent. If the abducting parent were to return the child to Canada voluntarily, the quickest and most simple resolution would take place. Although the approach seems unlikely to work, the effort should at least be made.

Local Police
Immediately after knowledge of a child being abducted, the local police department should be contacted. The police should be provided with a copy of any custody order, photographs and descriptions of the child and the abducting parent. Any other information that could lead to the location of the child may also be presented. The local police can then enter the information into the Canadian Police Information Centre (CPIC) computer system and all police forces in Canada will have access to it. A request that the information be entered in the United States National Crime Information Centre (NCIC) computer system may also be done. If there is belief of the child being removed from the country, the local police will immediately contact the Missing Children’s Registry of the Royal Canadian Mounted Police (RCMP).

Local police may initiate other steps that must be taken. They would suggest the notification of the child’s school authorities and the child’s physician/hospital that there was an abduction. These authorities should be advised to contact the parent or their lawyer should there be a request for any records. Copies of long-distance telephone calls that the abducting parent may have made prior to the abduction could also be useful in determining the whereabouts of the child. Close monitoring of credit cards should also be taken care of. Finally, the police will begin to review with the parent of the child and other authorities whether criminal charges should be laid against the abducting parent.

Media
Publicity in child abductions, especially those that are international, can be both helpful and damaging. Before making any decisions, local police and a lawyer should be consulted. Since publicity in some countries could affect the willingness or ability of local authorities to assist in the return of the child, caution must be taken. Caution is also needed due to the possibility of the abducting parent going into hiding, causing the child to be under stress and danger.

Search Agencies
Many private organizations will carry out search activities for a fee and/or expenses. Before confirming with any one agency, advice and guidance should be obtained from local police and also non-governmental organizations. If the decision is made to seek the help of an agency, a lawyer should be involved with any negotiations. This protects the financial interests of the parent and ensures all activities planned by the agency will not further complicate the search and recovery of the child.

International Laws Against Child Abduction-

The Hague Convention

To find a solution to child abduction problems, different countries began to recognize the need for co-operation. In 1976, The Hague Conference on Private International Law, an international organization based in The Netherlands, accepted a Canadian proposal to lessen some of these problems. Canada, along with some 30 other countries, actively participated in the negotiations that led to the Hague Convention on the Civil Aspects of International Child Abduction, commonly known as The Hague Convention. With the current involvement of 53 countries this has become the main international treaty that assists parents whose children have been abducted to another country. Over 300 Canadian children have been returned under its arrangements so far.

Objectives

There are two main objectives that the Hague Convention abide by:
# to secure the prompt return of a child wrongfully removed to or retained in any contracting state, to the environment from which the child was removed; and
# to ensure that rights of custody and of access under the law of one contracting state are effectively respected in other contracting states.

Requirements
The Convention holds a few basic requirements that must be proven in order for their service to apply to the case. The child, first of all, must be under the age of 16 years and prior to their removal, or retention, was a resident of Canada. At the time of the abduction, which must be within the last year, the Convention must have applied to the country that the child was taken to. Finally, the removal must be a breach of custody or access rights, which is determined either in law or by judicial order.

Applying for the Return of a Child

Once there is an awareness of the child’s location, the provincial Attorney General’s office and/or the Minister of Justices or the territorial Department of Justice should be reached. These departments will have special designated sections as the central authority for the province or territory, which are responsible for the administration of the Convention. The federal Department of Justice itself is also a central authority. The central authorities can provide information on the country that will be dealt with, including laws, and how to proceed with an application. They may also help with finding the location of the child, and will prevent further harm to them. Legal aid and advice, including the participation of legal counsel and advisors, may too be provided depending on the circumstances.

The provincial/territorial central authority will provide a copy of the Convention-approved application form to be filled out. All known information on parent, child and abductor’s identity and location is needed. A statement of custody rights is made accompanied by supporting documents, and the foreign central authority is granted the right to act.

The foreign central authority will submit the application to appropriate judicial authorities. If the child is not returned voluntarily, a court hearing will take place where the central authority will appoint a lawyer to act on the parent’s behalf and the abducting parent may hire a lawyer to fight the application and represent his/her case. If the conditions of the Hague Convention are met, the child is returned. The judicial process of the country concerned must be followed though, and any decision could be appealed. The final result can take time, depending on the nature of the legal proceedings that are involved, including appeals.

There are some exceptions that could cause the court decision to be made in favour of the abductor. If there is a risk that the child would receive physical or psychological harm when returned or would be put into an intolerable situation the decision is quick and definite. If the child is old enough and mature enough to have their views taken into consideration, the child may object to being returned. Finally, if the abducting parent were to prove that the custody rights were not of the other parent at the time of the abduction, the case would be over.

Other Actions
If the child has been abducted to a country that is not a participant of the Hague Convention, other actions may be taken both in Canada and internationally. In Canada, the civil justice system can reinforce the custody rights, and if necessary, the criminal justice system can initiate criminal action against the abductor. In other countries, the same type of action may be possible.

Before taking any action, it is important to seek legal and other professional advice and guidance since every case is unique. When dealing with other countries, a lawyer may be required from that country to provide knowledgeable and experienced advice on custody cases involving foreigners.

Indian Laws against Child Abduction

As of now, there is no particular Indian enactment tending to issues identified with the abduction of the child from and into India. However, Law Commission of India had presented the 218th Report titled Need to consent to The Hague Convention on the Civil Aspects of International Child Abduction 1980 on 30th March 2009.

Common Aspects of International Child Abduction Bill, 2016 is acquainted with the point with secure the incite return of child wrongfully evacuated to or held in any Contracting State, to guarantee that the privileges of care and access under the law of one Contracting State are regarded in the other Contracting States, and to build up a Central Authority and for issues associated therewith or accidental thereto.

The speedier cure is to record a Writ of Habeas Corpus in the High Court or the Supreme Court for the return of authority by a parent on the quality of a remote Court arrange or infringing upon parental rights. The elective cure is to start guardianship procedures under the Guardian and Wards Act, 1890 by driving proof and setting all apt material on the record under the watchful eye of a Guardian Judge. The process is bulky, repetitive and tedious.

Judicial view
In Surinder Kaur v. Harbax Singh Sandhu and in 1987 in Elizabeth Dinshaw v. Arvind M. Dinshaw, the Supreme Court practising its synopsis purview restored the abduction minor child to the outside nation of their root based on remote court care orders.

In Dhanwanti Joshi v. Madhav Unde and, in Sarita Sharma v. Sushil Sharma, the Courts favoured remembering the child’s welfare and best advantages over every other viewpoint. In like manner, Foreign court orders turned out to be just a single thought in child authority debate which was to be settled on the benefits of each case with no outline return.

In V. Ravichandran v. UOI and again in Shilpa Aggarwal v. Aviral Mittal, the Supreme Court, following Habeas Corpus petitions, guided the outline return of a child to USA and UK individually, leaving all angles identifying with child welfare to be researched by Courts in the outside purview. In May 2011, in Ruchi Majoo V. Sanjeev Majoo, in an interest, in a Guardian and Wards appeal, the Supreme Court has coordinated that the procedures for choosing authority rights might go ahead under the steady gaze of the Guardian Judge at Delhi and till then the between time care should be with the mother. The father has been given appearance rights.

Principles governing
The Supreme Court laid down the following principles in its judgment on the case delivered.
# The expression Ordinarily resides in Guardian & Wards Act to be determined also by ‘intention’ of parties and not merely on residence abroad or overseas nationality.

# Custody Orders issued by foreign courts not to be taken as conclusive and binding but should be considered as just one of the factors or consideration that would go into the making of a final decision by an Indian Court. Objectivity and not abject surrender is the mantra in such cases,  says the apex court’s order.

# Habeas Corpus petitions being summary in nature can determine custody issue of children present in its jurisdiction and also embark upon a detailed enquiry in cases where the welfare of a minor is in question. In Habeas Corpus proceedings, the legality of the detention of the alleged detenu in the territorial jurisdiction of the Court will be gone into.

# The principle of Comity of Courts in child custody cases has generally held that foreign judgments are unconditionally conclusive. However, the welfare of the minor being paramount, the Supreme Court now says, Indian Courts are duty bound to examine the matter taking the foreign Judgment only as an input for final consideration.

Recent development by Indian Government
People are looking for such a kind of law that deals with these issues and accordingly on June 22, 2016, the Ministry of Women and Child Development (MWCD) transferred on its site a proposition to institute a draft of the Civil Aspects of International Child Abduction Bill, 2016. This was considered as it was basic to have an empowering enactment in India before the increase to The Hague Convention. The proposed Bill, to be renamed as the Civil Aspects of International Child Abduction Bill, 2016, was set on the Ministry’s site for remarks till July 13, 2016. Ideally now, the last form may discover Parliament’s endorsement to end up plainly a classified law.

The proposed Bill considers the expulsion to or the maintenance of a child in India to be wrongful in the event that it is in rupture of privileges of authority ascribed to a man, an organization, or some other body, either together or alone, at a place where the child was routinely occupant instantly before the evacuation or maintenance. It additionally stipulates that the evacuation to or the maintenance in India of a child is to be viewed as wrongful where at the season of expulsion or maintenance those rights were really worked out, either together or alone, by a man, an organization or some other body, or would have been so worked out, however for the evacuation or maintenance.

The draft Bill was readied following a reference made by the Punjab and Haryana High Court to the Law Commission of India to consider whether proposals ought to be made for authorizing a reasonable law and for marking The Hague Convention. The High Court had made this reference when a minor child stayed untraceable after she was expelled from the by right guardianship of the court and taken abroad by abusing an interval request of 2006. The court had seen in its request that for a need of the Indian government agreeing to The Hague Convention or instituting a household law, a child would keep on being cheerful far from and to India, with courts and specialists remaining by in give up.

Notable highlights- The Civil Aspects of International Child Abduction Bill, 2016

# The Bill accommodates the constitution of a Central Authority.
# A choice under The Hague Convention, 1980 concerning the arrival of the child isn’t the last assurance on benefits of the issue of care as India isn’t a signatory to it.
# It traces the part of the Central experts with respect to a child, who is expelled to India, and from India to other Contracting State of The Hague Convention, 1980.
# It sets down technique for securing the arrival of a child and accommodates the Central Authority to apply to the High Court for re-establishing care of the child.
# It engages the Court to deny guardianship on specific grounds. It enables the Courts in India to perceive choices of State of the ‘routine home’ of the child.
# It likewise expresses that the Indian Court that needs to dismiss the break/last request of the remote court must record purposes behind the same.

Cases Where Child Is Taken To A Foreign Territory After Abduction

In the absence of proper laws a case of abduction by one parent, is treated as a case of a custody battle. If a country has signed the treaty, a court in the country where the child had been residing, passes an order that a child is 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 is taken back to the country of habitual residence where both parents may then file for custody.

For example: in 2012 Vividha’s mother, Sapna a British national who has affirmed that Vividha’s father abducted the child and took her to India 2009. Sapna claims that the family was living in the UK at the time and that Vividha was conveyed to India without her permission and authorization. Sapna says that she has been battling to take her little girl home since. In any case, guarantees that in the years that her little girl has been far from her, her husband and his family has harmed her girl’s brain against her with the outcome that her little girl wouldn’t like to live with her any longer.

Case Study

Shanmughan case

Shanmughan of Texas is a U.S citizen, a business person who claims an organization in Texas, and a victim of International Parental Child Abduction. His U.S national daughters (Malia and Purul) were kidnapped on July 21, 2005, by his wife Sakshi (a US Resident for around 8 years) and taken to Bangalore (India) without his consent. This was in coordinate infringement of a Collin County Court’s order that removed his wife from expelling the children from Texas. On Oct 2nd, 2006, a similar Court granted the father (Shanmughan) sole care of his US native youngsters. Since 2 years Shanmughan has not seen her daughter. His father-in-law gone about as an assistant in kidnapping Shanmughan ‘s children from Texas. After running to India, his wife filed a divorce petition and then sold his property in Bangalore without his consent she likewise acquired an ex parte order from the neighbourhood Court in Bangalore giving her guardianship of the abducted children regardless of the way that she was Permanent US Resident.

Deshmukh’s case

Deshmukh of Bamberg, Germany says that his child has been held hostage by his wife and her helpers. He has been paying Rs. 18000 every month as upkeep for most recent 15 years, yet his better half has constantly denied him access to his child since she is anxious about the possibility that that once the child meets his father all the time, he will leave his mother (and she will lose her wellspring of pay). Both German and Indian courts have given him rights to visit the child; the lower Indian court and even the German court gave him care of the child, be that as it may, his better half outrightly declines to take after the court orders.In an attempt to deter Deshmukh from following the custody case his wife has filed a completely baseless 406 case against him. He has lost his property and his mom needed to pitch her home to battle this case.

Ramesh Krishnan’s case

Ramesh Krishnan – a US occupant, came to India. Ramesh purchases return tickets for his wife and child. His wife within 2 weeks of her stays in India filed for child’s guardianship in India. Ramesh moves the court in the US (where the child Commonly dwelled) for child-custody. Summons were sent to his wife. wife sends her complaint letter to the US Court; the court considers the letter and passes an order for Ramesh showing that it had the Jurisdiction to choose as the child had and would have kept on dwelling in the US however for the child abduction. Ramesh needed to contest before 4 judges because of Judicial exchanges. Ramesh challenges the case in India and gets a court order for him that required his wife to guarantee that the child has consistent contact with the father. She likewise filed a false dowry case against Ramesh. Ramesh has not been able to talk to his son for over a year now.

Vilas’s case

Vilas is a surgeon by profession. In September 2006 Vilas and her baby daughter (Amole) were abducted from Mumbai Airport (in transit from NZ to the UK) by his ex-wife and her helpers and taken to a small taluka in interior Maharashtra. Ever since his daughter was taken away from the airport he has not been able to meet or speak to her (more than a year). Vilas plea to produce children before the Honorable Mumbai court has still not being honoured by Indian legal system.

In addition, his ex-wife has filed all sorts of criminal cases against him in UK, New Zealand and Indian courts to stop the children from seeing him. This has also put an end to his professional career. local Maharashtra police refused to register complaints against his ex-wife and her family and threatened to get him killed in a fake encounter.

Conclusion
When it is suspected that a child may be abducted, or has already been so, there is a proper way to handle the situation which was discussed here through preparation and prevention, and also the search and recovery. The benefit to parental child abduction is being aware of the abductor’s character and having the opportunity to prepare in advance, and possibly prevent, the incident. Preparation of an information list for both the child and abductor will also be used in the application for the return of the child. With this prepared, the parent can concentrate on the return of the child and the appropriate goals that one might make for oneself. Following through with the simple series of steps, including contact with the local police, media and search agencies, the parent will receive all of the proper advice needed.

Through the help of organizations such as the Hague Convention, all of the legal proceedings seem to fall into place. Changes will continually occur in the legal system, like suggested with the recommendations made by the Sub-Committee report that was welcomed here.

They will always reflect society’s changes and needs, and will only improve the system. If society does not continue to provide the help that it does now, including the steps that can be taken through all of the different levels, the whole process will become even more complex and strenuous on the parent. Each child abduction is unique, however, and so the steps needed in each case may differ slightly. As long as the resolution is in the best interest of the child, the legal system has done it’s task.

Written By: Neeraj Lohia (Student), KR Mangalam University
Email: [email protected]

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