ABSTRACT
International child abductions may result if parents cannot agree on custody arrangements. The Hague Convention on International Child Abduction may be invoked to restore the status quo for abducted children. The relevance of this subject stems from the growing migration of South Asians from the region to other nations. There is an urgent need for more comparative study of the main common law nations and a few significant European Union countries in international parental child abduction cases. The paper discusses the conflicting case laws between some of these countries applying contrapuntal reading of the legal text.
Afghanistan is starting over with a new government, courts, higher education and administrative system. The lack of specialised family law courts makes it harder to enforce codified family law in Afghanistan. Jurisprudence in this respect is lax when it comes to the recognition and enforcement of foreign custody orders. India and Pakistan have no specific law concerning the recognition of foreign custody orders. The courts rely upon the ‘comity of courts’ and ‘welfare of child’ principles to adjudicate upon a foreign judgment.Pakistan has acceded to the Child Abduction Convention (CAC) which came into effect on 1st March 2017 under the success of the Malta Process of the Hague Convention on Private International Law.
Sri Lanka has signed the Hague Child Abduction Convention. However, the efficiency and working of the Sri Lankan legal system about this issue has remained a mystery as no progress report or data has been released by the Sri Lankan government in this regard.
Two law commission reports have recommended that India become a party to the Hague Convention.
Keywords: International Child Abduction, Hague Child Abduction Convention, Child Custody, Private International Law, International Family Law
INTRODUCTION
The emergence of globalisation has resulted in a world that has become more interconnected as a result of this. The growth in international travel has transpired over the years, resulting in people from various nations, unique cultures, and differing religious beliefs creating connections and relationships with one another, some of which eventually lead to marriage. Unfortunately, some of these marriages do not endure and children are the worst sufferer when families are torn apart.[1] The divorce rate continues to climb in the United States, and the concept of shared custody is gaining popularity.[2] A similar trend may be seen in South Asia, where the divorce rate amongst married couples has been steadily growing. In India, for example, divorce rates among young couples have risen dramatically. [3] In such instances, a custody struggle for the child under the provisions of family law is unavoidable. Shared custody may be complicated when parents live in separate provinces, but it becomes much more complicated when parents live in different countries. This already challenging scenario may become much more problematic if the parents cannot agree on where to raise the child and who will raise the child[4]. If a middle ground cannot be established, international child abductions may result if no agreement is reached.[5]
South Asia is increasingly witnessing a trend where one parent, who might violate a foreign custody order, comes back to their country of origin. India has become second only to Mexico in cases of international parental child abduction cases in recent years.[6]This puts the other parent in an unpleasant situation, as he or she will now be required to pursue a fresh legal battle in the nation of origin of his or her spouse.
When relationships fail, there is always the possibility that one parent may remove the child from their country of origin/domicile without the approval of the other.[7] In such cases, the victim may use the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (hereinafter “1980 Hague Convention”) to have
the child returned to the place of habitual residence. The Convention may be invoked to restore the status quo, at which the parties may proceed.
THE HAGUE CHILD ABDUCTION CONVENTION AND SOUTH ASIA
While all the constituent nations of South Asia are parties to the UN Convention on the Rights of the Child, 1990, only Pakistan and Sri Lanka have acceded to the Hague Convention.[8] Domestic courts must then use private international law (which would include the application of the “best interest of child” principle) to enforce foreign court judgments. This is the primary focus of the study—a comparative examination of such recognition and enforcement throughout South Asia, with an emphasis on Bangladesh, India, Pakistan, and Sri Lanka. Due to a scarcity of jurisprudence in this area and in order to conduct an informed analysis, there is an urgent need for more comparative study of the main common law nations and a few significant European Union countries in international parental child abduction cases. The theoretical construct for this paper is based on the work of Douglas Gillian to examine the relative tension that exists in the operation and enforcement of family law obligations.[9] Second, the paper discusses the conflicting case laws between some of these countries applying Said’s contrapuntal reading of the legal text and judgements from major jurisdictions.[10] The relevance and limitation of private international law and its relationship with public international law are analysed to understand the scope and limits of the discussion on custody jurisprudence[11].
The relevance of this subject stems from the growing migration of South Asians from the region to other nations.[12] They may also marry people who are not of their indigenous descent.[13] If such a marriage fails or if the couples dispute, children might get embroiled in the ensuing parental fight.[14]Many times the courts may decide such matters on the theory of “parens patriae“, which requires them to act as the parent of any child or individual in need of protection.[15] Here, it would be prudent to quickly discuss the legal systems of certain South Asian states.
- Afghanistan
The takeover of the Taliban and dubious silence over the recognition/non-recognition of the Taliban government by the US and EU has further complexed the already suffering Afghanistan from the decades of war. Before the Taliban seized control of Afghanistan, Wali Mohammad Naseh contested that under Afghani Private International Law, a dispute is characterised as involving a foreign element if the party involved is not Afghan in nationality or personality. Therefore, in circumstances when a party is from outside the nation, foreign laws and judgements should be applicable.[16]Afghanistan is starting over completely; the government, courts, administrative system, and higher education are all being completely reconstructed, making it further disadvantageous for women.[17] As a result, there is growing legal ambiguity, which breeds broad public mistrust of government agencies.[18]The lack of specialised family law courts outside of Kabul makes it further harder to enforce the codified family law although the Afghan Civil Procedure Code mentions the existence of the such institution.
In Afghanistan therefore, we will need to see the traditional Islamic law understanding of custody of the children.[19] It rests with the mother for a certain time and then it falls to the father.[20] Jurisprudence in this respect is lax when it comes to the recognition and enforcement of foreign custody orders. Foreign orders would be executed if they are properly made but no specific legislation deals with such enforcement.[21] In Islamic law, custody of children is manifested under two spheres referred to as “Hadanah” and “Wilayah.”[22] ‘Hadanah concerns the right to physical custody of the child whereas wilayah is guardianship of the person and property of the child.’[23]
- Pakistan
India and Pakistan both apply colonial legislation known as the Guardians and Wards Act, 1890 when it comes to the appointment of a guardian for the child and the Code of Civil Procedure, 1908 (CPC) when enforcement of foreign judgments is inthe issue. The countries also have personal laws for their respective constituent communities.[24] Both of these countries have no specific law concerningthe recognition of foreign custody orders except the CPC. The courts rely upon the ‘comity of courts’ and ‘welfare of child’ principles to adjudicate upon a foreign judgment.[25] However, the foreign custody orders are taken as evidence, as the courts do not automatically apply foreign judgments and have shown great inconsistency in enforcing foreign court orders.[26] Most recently, in the case of Amyra Dwivedi v. Abhinav Dwivedi[27]the Supreme Court of India has stated that Indian Courts must regard the welfare of the child as an issue of paramount consideration as the child has the human right to love and affection from both parents.
With reference to establishing the jurisdictional question, the division court of the Supreme Court in Surya Vadanan v. State of Tamil Nadu[28]held that the courts cannot jettison the principle of ‘comity of courts except for any special and compelling reasons.’ The court also held that if the jurisdiction of the foreign court is not
in question, then the principle of ‘first strike’ would apply, i.e., whichever court passes judgment first will have the primacy over the subsequent court. Two law commission reports have recommended that India become a party to the Hague Convention. The country has also come out with a bill which has been draftedalong the same lines as the Child Abduction Convention. Although the initial success of the tabling of the bill was undermined by the subsequent withdrawal of the bill and taking off bill from the official portal of the Ministry of Women and Child Development. The reason and condition for this will be discussed in the subsequent chapter.
Under Pakistani and Sharia law, the mother has the preferential right of custody till a certain age i.e. Hizanat.[29] Afterwards, the father controls virtually all aspects of his family’s life. He decides where his wife and children will live, how the children are to be educated and whether or where they may travel[30]. Courts rarely, if ever, give custody of children to a woman who is not a Muslim, who will not raise the children as Muslim, does not plan to raise them in Pakistan, or has remarried. In all probability, even if the mother wins custody, the children would still need the father’s permission to leave the country[31]. In a recent case of Mst. Beena v. Raj Mohammad[32] by the Supreme Court of Pakistan, it was held that although the hizanat period vested in the child’s mother was over, the father had not abided by the judgement of the Family Court and the concerned High Court while continuing to retain the custody. The court lashed out at the High Court of Peshawar for giving too much emphasis on the alleged child’s aversion to the mother as that goes to show that the father indoctrinated the ‘innocent mind of the child’ with hatred for his mother. This, the court said, is neither good for the child or the mother and granted the child custody to the mother.[33] In the matter involving foreign elements, any matter of custody in Pakistan can only be resolved through the appropriate local judicial system. While the courts of Pakistan may take into account the laws of other countries, custody orders from other countries are viewed simply as evidence in a Pakistani proceeding. Possession of a custody order, even in the absence of such an order by the Pakistani spouse, will not automatically result in the return of an abducted child. That parent would have to appeal to the family court in order to try to obtain an order for custody.[34]
At the time of writing, Pakistan has already acceded to the Child Abduction Convention[35] on 22 December 2016. The convention came into effect on 1st March 2017.[36] It is interesting to note that to resolve the conflict between the Islamic Law and Private International Law related to the custody order, a series of gatherings known as the Malta Process was supported by the Hague Conference. These meetings, which the government of Malta has hosted, have given signatories and non-signatories (mostly nations with Muslim-majority) the chance to discuss how their legal systems differ from one another, how the Abduction Convention conflicts with them, and what second-best options there are to help distressed families (e.g., mediation).[37]
- Sri Lanka
The Democratic Socialist Republic of Sri Lanka is a party to the Child Abduction Convention and has passed legislation, namely the Civil Aspects of International Child Abduction Act of 2001. While the country also has personal laws, the Act provides relief in cases involving foreign elements. Sri Lanka is the only country with a working act based upon the Hague convention.[38] Despite having ratified many important Hague Conventions on some vital subjects, Sri Lanka is dubious of the application of private international law. The situation is clearly marked by legal ambiguity brought about by a variety of factors, ranging from political to religious.[39] The positivism and modernity that influence different facets of human existence cause judicial decisions to swing back and forth between tradition and innovation.[40]
- India
In India, family law is governed by a combination of secular and religious legislation. No Indian family legislation, both secular or religious, has defined the term “custody” of a child. The Guardians and Wards Act of 1890 (GWA) defines a “ward” as a “minor” for the care of whose “person and property” there is a guardian.
The guardianship and custody of children were not addressed in classical Hindu law. The Guardians and Wards Act, passed by the colonial state of India in 1890, stated that the father is the natural guardian of a minor boy or unmarried minor girl, followed by the mother. The Hindu Minority and Guardianship Act of 1956 states that the well-being of minors takes precedence above all other considerations. International human rights law, specifically the United Nations Convention on the Rights of the Child, has a similar legal criterion. The child’s views, identity, preservation of the family environment, and any situation of vulnerability (disability, minority status, homelessness, victim of abuse, etc.) may all be relevant, according to the United Nations Committee on the Rights of the Child. However, the “best interest of the child” standard is not always an adequate legal tool for resolving child custody decisions. In certain cases, further statutory standards for post-divorce custody arrangements may be required, particularly in circumstances of domestic abuse and child welfare concerns. Interim orders affecting the custody, support, and education of young children are available under Section 18 of the Guardian and Wards Act (GWA). The GWA gives courts the authority to cancel, postpone, or modify interim orders made in compliance with a child’s preferences. The mother’s right to custody over her children is also recognised in Muslim law as applicable in India. The Hindu Marriage Act of 1955 has a section that is comparable to Section 49 of the Parsi Marriage and Divorce Act of 1936. Both the GWA and the Indian Divorce Acts provide courts with the authority to make interim orders for the custody, support, and education of young children in custody disputes.
It becomes more complex when child custody involves a case of international parental child abduction (IPCA). In India, parental child abduction is not a crime. Children are seldom returned to their countries of habitual residency because Indian courts mostly choose to re-litigate custody judgments previously reached in the best interest of the child by foreign courts. Furthermore, analysis of IPCA cases demonstrates that the Indian judiciary is not immune to cultural and gender prejudice. The abducting mothers often file false charges of domestic abuse and dowry (IPC 498A) against their spouses and in-laws, resulting in tremendous difficulties, including the imprisonment of the left-behind parent.
With this backdrop in mind, it is ironic that the Indian government has decided not to be a signatory of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention. The official position of the government of India has been that it will not accede to the 1980 Hague Convention. The advocates for not being a signatory to the 1980 Hague Convention point to a 2010 study on Hague Convention cases.[41] According to the report, 68 per cent of the parents were mothers, 85 per cent of these mothers were primary caregivers for their children, and 54 per cent returned to a country where they had citizenship, with the majority of these women fleeing abusive and violent homes. Opponents of the Hague Convention claim that half of all cases are genuine “flights to safety.” WCD Minister Maneka Gandhi has voiced reservations about joining the Convention in a number of places, citing two reasons: that doing so would not be in the best interests of aggrieved women as the Convention does not provide a safeguard against cases of domestic violence; and that the government claims there have been fewer cases of Indian children being abducted and taken abroad.[42] This is despite the fact that the Law Commission of India has twice submitted its position suggesting that the government of India should accede to the 1980 Hague Convention.
CONCLUSION
Under the scenario given above, an analysis of the laws and jurisprudence of South Asia, such as underlying theoretical concerns, the contrapuntal and epistemological reading of the Hague Child Abduction Convention and relevant norms as well as institutional mechanisms related to the custody jurisprudence involving foreign element requires serious study. A parallel comparison can also be made with some common law countries, the European Union mechanism of Private International Law, and some experiences from Africa, Asia and Latin America with respect to Hague Child Abduction Convention to get a holistic picture of the challenges and nuances in which intercountry custody jurisprudence operates.
[1]Zadorsaa M. Hightower, “Caught in the Middle: The Need for Uniformity in International Child Custody Dispute Cases,” 22 Michigan State International Law Review 638 (2013).
[2]Lexi Maxwell, “The Disparity in Treatment of International Custody Disputes in American Courts: A Post-September 11th Analysis,” 17 Pace International Law Review, 105 (2005).
[3]Apoorva Dutt, “How and why number of young Indian couples getting divorced has risen sharply”available at: http://www.hindustantimes.com/sex-and-relationships/how-and-why-number-of-young-indian-couples-getting-divorced-has-risen-sharply/story-mEuaEoviW40d6slLZbGu6J.html (last visited June 22, 2022).
[4]Eve M. Brank and Lorey Scott, “The historical, jurisprudential, and empirical wisdom of parental responsibility laws,” 6 Social Issues and Policy Review 26–53 (2012).
[5]Lexi Maxwell, “The Disparity in Treatment of International Custody Disputes in American Courts: A Post-September 11th Analysis,” 17 Pace International Law Review, 106 (2005).
[6] “MayuraJanwarkar, “In US, 80 abduction cases in which parent took child to India, says Susan S Jacobs Special adviser on children’s issues”, Indian Express, available at <https://indianexpress.com/article/india/india-news-india/surrogacy-us-abduction-cases-parents-took-child-to-india-ban-commercial-susan-s-jacobs-3033434/> (last visited on Apr 30, 2022).
[7]Stephanie Chen, “The Untold Tale of Family Abductions: 3 Girls Missing, an International Hunt” The Untold Tale of Family Abductions: 3 Girls Missing, an International Hunt, 2009 available at: https://edition.cnn.com/2009/CRIME/11/30/delaware.family.abductions/index.html.
[8] “Status Table: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”, <https://www.hcch.net/en/instruments/conventions/status-table/?cid=24> last accessed on 21 June 2018.
[9]Gillian Douglas, Obligation and Commitment in Family Law (Hart Publishing, London, 2018).
[10]Edward W. Said, Orientalism, Reprint with a new Preface (Penguin Books Ltd., London, 2003).
[11]Jonathan Herring, Relational Autonomy and Family Law (Springer International Publishing, London, 2014).
[12]Sachin P Mampatta, “Statsguru: 160,000 Indians gave up citizenship in 2021 for greener pastures” Business Standard, 2022available at: https://www.business-standard.com/article/economy-policy/statsguru-160-000-indians-gave-up-citizenship-in-2021-for-greener-pastures-122072400754_1.html (last visited August 3, 2022).
[13]P K Balachandran, “New Law to Restrict Marriage in Sri Lanka,” 2021available at: https://www.thecitizen.in/index.php/en/NewsDetail/index/6/21268/New-Law-to-Restrict-Marriage-in-Sri-Lanka.
[14]Jessie Yeung, “In China, 80,000 children were ‘snatched’ in 2019 by parents fighting for custody, report says” CNN, 2022available at: https://edition.cnn.com/2021/05/22/china/china-divorce-child-custody-abduction-intl-hnk-dst/index.html (last visited August 3, 2022).
[15]Alisha Pradhan, “Evolution of Child Custody Laws from ‘Parens Patriae’ to the ’Welfare of the Child.,” 11 Indian Journal of Law and Justice 158 (2020).
[16]Wali Mohammad Naseh, “Conflict of Laws- State Practice in Afghanistan” Private International Law: South Asian States’ Practice 65 (Springer, Singapore, 2017).
[17]Paulina Smolinski and Eleanor Watson, “New report on Afghanistan reconstruction shows bleak outlook for women” CBS News, 2022available at: https://www.cbsnews.com/news/afghanistan-reconstruction-bleak-outlook-women-report/ (last visited August 3, 2022).
[18]Haroun Rahimi, “Remaking of Afghanistan: How the Taliban are Changing Afghanistan’s Laws and Legal Institutions” Institute of South Asian Studies, National University of Singapore, 2022available at: https://www.isas.nus.edu.sg/papers/remaking-of-afghanistan-how-the-taliban-are-changing-afghanistans-laws-and-legal-institutions/ (last visited August 3, 2022).
[19]Ibid.
[20]Anver M. Emon and urfan Khaliq, Jurisdictional Exceptionalisms: Islamic Law, International Law and Parental Child Abduction (Cambridge University Press, Cambridge, 2021).
[21]Ibid.
[22]ShabnamIshaque and Muhammad Mustafa Khan, “The Best Interests of the Child: A Prevailing Consideration within Islamic Principles and a Governing Principle in Child Custody Cases in Pakistan”, International Journal of Law, Policy and The Family, vol. 29, no. 1 (2015), at 78.
[23]Ibid.
[24]Mudasra Sabreen, “Law on the Custody of Children in Pakistan: Past, Present and Future,” 4 Lums Law Journal 72–95 (2017). Also see, Asha Bajpai, “Custody and Guardianship of Children in India,” 39 Family Law Quarterly 441–57 (2005).
[25] Ibid
[26]Shruti Sahni and Samanvi Narang, “Custody of Children in India- An Inter-country Dispute” JGU Research Publications (2021).
[27] 2020 SCC Online SC 1103. This same approach was upheld in YashitaBasu v. State of Rajasthan, (2020) 3 SCC 67, partly reversing the early order in the same case, i.e., AmyraDwivedi v. Abhinav Dwivedi, 2019 SCC Online All 6903.
[28](2015) 5 SCC 450,
[29]Zaheer Iqbal Cheema, Jawwad Riaz and Ali Nawaz Khan, “Determining the Custody of a Child in Pakistan,” 5 Global Regional Review 158–64 (2020).
[30]Mudasra Sabreen, “Law on the Custody of Children in Pakistan: Past, Present and Future,” 4 Lums Law Journal 72–95 (2017).
[31]Zaheer Iqbal Cheema, Jawwad Riaz and Ali Nawaz Khan, “Determining the Custody of a Child in Pakistan,” 5 Global Regional Review 158–64 (2020).
[32]Mst. Beena v Raj Muhammad, Etc., C.P. No., 2020, 4129/2019.
[33]Ibid.
[34]“International Parental Child Abduction: Pakistan, <http://www.passportsusa.com /family/abduction/country/country_513.html> last accessed on 15 June 2018.
[35] “Pakistan joins the 1980 Hague Child Abduction Convention”, <<https://www.hcch.net/en/news-archive /details/?varevent=532> last accessed on 15 June 2018.
[36] Ibid.
[37]Anver M. Emon, “Islamic Law and Private International Law: The Case of International Child Abduction” Institute for Advanced Study, 2015available at: https://www.ias.edu/ideas/2015/emon-law (last visited August 4, 2022).
[38]Namelay, the Civil Aspects of International Child Abduction Act, 2001.
[39]Rose Wijeyeskera, “Inter-country Child Abduction—Sri Lankan Legal Response” Private International Law South Asian States’ Practice 243–61 (Springer, Singapore, 2017).
[40]Ibid.
[41]Jeffrey L. Edleson et. al., Multiple Perspectives on Battered Mothers and Their Children Fleeing to the United States for Safety: A Study of Hague Convention Cases (Berkeley Project Report), Final Report, NIJ #2006-WG-BX-0006, Goldman School of Public Policy, Univ. of Cal.-Berkeley website (Nov. 2010).), available at: https://gspp.berkeley.edu/assets/uploads/page/HagueDV_final_report.pdf (last visited on May 1, 2022).
[42]Shalini Nair, “India will not ink Hague treaty on civil aspects of child abduction”, The Indian Express (Nov 27, 2016), available at: https://indianexpress.com/article/india/india-news-india/india-will-not-ink-hague-treaty-on-civil-aspects-of-child-abduction-4397236/ (last visited on May 1, 2022).