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
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.
Causes of Child Abduction
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.
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
# 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
# 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.
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
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
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.
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
# to ensure that rights of custody and of access under the law of one
contracting state are effectively respected in other contracting states.
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.
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.
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
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.
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
The Supreme Court laid down the following principles in its judgment on the case
# The expression Ordinarily resides in Guardian & Wards Act to be
determined also by ‘intention’ of parties and not merely on residence abroad or
# 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,
# 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
# 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 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.
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 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 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.
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.
Neeraj Lohia (Student), KR Mangalam University
Email: [email protected]