This article has been written by Jenia Begam , a 5th year BA.LLB of  LJD Law College, University of Calcutta”

Abstract

A serious problem, child abduction is the kidnapping of a child by family members or noncustodial parents. Since the child is taken from their family, separated from their parent, and forced to live on the run, this kind of kidnapping can have a seriously traumatic impact on the victim. The  child abductions are complicated and challenging, particularly when they involve foreign nations. There are several strategies and actions that may be used to guarantee the security of kids. To protect an abducted child, several actions need to be performed after the abduction. Preparation, prevention, search, and recovery are all important aspects of addressing suspected abductions properly.

Keyword :-  child abduction , kidnapping , parents , unlawful custody , Mental health, 

Introduction  

Whenever a child is unlawfully taken or kept abroad by one parent, it is a severe matter known as international child abduction. In general, child snatching, child theft, and foreign parental kidnapping are equivalent with the term “International Child Abduction”.  This happens commonly during a divorce or separation. This may result in a violation of the child’s and their family’s custody rights, jurisdictional legal problems, and possible psychological and emotional harm. In order to preserve parental rights and safeguard the child’s welfare, legal remedies and preventative actions are crucial. The phrase “child abduction” in private international law typically refers to the unlawful abduction of minors from their native country by a friend or relative who travels abroad. “Home” is defined as the child’s regular where he lives, and illegal is often understood to imply “in violation of custodial rights” in this context.  This can violate many children’s rights, result in the loss of their language, culture, name, and nationality, and traumatize the remaining child and family psychologically and emotionally.

According to U.S. government estimates, since 1994, approximately 30,000 American children have been taken overseas against their will; by contrast, the State Department believes that between 600 and 800 children are removed each year. Advocacy organizations credit the spike in rates despite a decline in the previous ten years to parental non-reporting, anomalies in federal counts, and alleged efforts to discourage reporting.

Family separation increases the likelihood of Adverse Childhood Experiences (ACES), which in abducted children can result in mental health problems such substance abuse, attachment disorders, and post-traumatic stress disorder. The trauma that children experience is regarded by child psychologists as one of the worst types of child abuse, and the US Supreme Court has highlighted the terrible effects of kidnappings. In addition to dealing with new governments, emotional and financial challenges, and frequent involvement in international disputes, parents who want their children back frequently confront these challenges.

• The Hague Convention on the Civil Aspects of International Child Abduction 

The Hague Convention on the Civil Aspects of International Child Abduction, also referred to as the Hague Abduction Convention, is a multilateral agreement that provides a prompt method for the return of a child who was unintentionally taken from one nation to another. Both the nation where the kid was abducted from and the country to which the child was transferred must be “contracting states,” which means that both must have joined the Convention for it to be relevant.

The Convention was drafted by the Hague Conference on Private International Law. Since the convention was finished on October 25, 1980, it went into effect among the signatories on December 1, 1983.

• The Hague Convention’s key features are  included :

1. A central authority is mandated to be the primary point of contact for parents and other governments engaged in abduction cases in countries that have joined or acceded to the convention. 
2. The documentation required for foreign papers to be admitted to courts in other countries can be canceled for documents that are presented to the Central Authority as part of the application and accepted by partner country courts.
3. To demonstrate that the child’s country of origin violated the parent’s custodial rights, the parent need not obtain a custody order; the Convention permits proof in accordance with the child’s habitual residence’s laws, which typically entails presenting documentation of parenthood or marriage.
4. The immigration status or nationality of a child or their parents has no bearing on whether or not they should be sent back to their usual residence, or on whether or not they have access or visiting rights.

• Legal Remedies 

In addition to serving other objectives,“International Child Abduction Remedies Act”  establishes processes to enforcing the October 25, 1980, Hague Convention on the Civil Aspects of International Child Abduction.

According to the “International Child Abduction Remedies Act” , The Hague Convention seeks to protect children’s rights to custody and access in other Contracting States as well as to guarantee the prompt return of children who have been wrongly taken to their usual residence. Instead of resolving international custody disputes, its processes seek to restore the status quo prior to improper removal or retention and discourage parents from participating in international forum shopping in custody disputes. 

The Hague Convention on the Civil Aspects of International Child Abduction, which was signed by the United States in 1988, attempts to guarantee the “prompt return” of children abducted across international borders to their country of habitual residence. The Convention takes precedence over any conflicting laws and is equivalent to the US Constitution. Although it does not result in custody procedures, it does allow children to return to their usual location, where custody proceedings may take place. When a kid is abducted somewhere else and transferred to this country, Hague lawsuits are filed in the location where the child has been taken. 

• Child Abduction – India

The Indian government has not passed any legislation addressing the problem of kidnapping children. But in 2009, the Law Commission of India released the 218th Report about the requirement to accede to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. In order to guarantee the return of children who have been unlawfully taken to or detained in any Contracting State, guarantee that rights to care and access are upheld in other Contracting States, and create a central authority for connected matters, the Common Aspects of International Child Abduction Bill, 2016 was passed.  The Guardian and Wards Act of 1890 is the best way to start guardianship procedures, although filing a Writ of Habeas Corpus in the High Court or Supreme Court to reclaim parental authority is a quicker remedy.

• Case law 

1. 1. In the cases of Elizabeth Dinshaw v. Arvind M. Dinshaw in 1987 and Surinder Kaur v. Harbax Singh Sandhu in 1987, the Supreme Court used its summary jurisdiction to reinstate minors who had been abducted and returned to their home country on the basis of distant court care orders.
   2. The Supreme Court governed the outline return of a child to the USA and UK separately in the cases of V. Ravichandran v. UOI , in response to Habeas Corpus petitions. All other aspects of child welfare were left to be investigated by courts outside of their purview.

• The Supreme Court ruled in Ruchi Majoo v. Sanjeev Majoo, a Guardian and Wards appeal, in May 2011 that the mother should continue to provide between-time care while the procedures for selecting authority rights proceed under the watchful eye of the Guardian Judge in Delhi. Appearance rights have been granted to the father.

• Development from the Indian government :

In order to give India a legal framework prior to The Hague Convention’s expansion, the Ministry of Women and Child Development (MWCD) has presented a draft of the Civil Aspects of International Child Abduction Bill, 2016. Before becoming a secret legislation, the measure is anticipated to be approved by Parliament. Comments on it are welcome until July 13, 2016. The urgent problem of child abduction in India is intended to be addressed by this action.

According to a proposed bill in India, it is unlawful to maintain or remove a child from a place where they were routinely residing before to the evacuation or maintenance if doing so would violate the authority privileges granted to a person, group, or other entity. It further declares that during the period of maintenance or expulsion, the individual, body, or organization in question really exercised their rights. The Punjab and Haryana High Court ordered the Law Commission of India to review suggestions for a reasonable law and the Hague Convention, and this request led to the preparation of the draft Bill.

Conclusion 

The major problem of abduction a child by noncustodial parents or family members, usually after a divorce or separation, is known as child abduction. In addition to infringing on the victim’s custody rights and creating legal problems, this may have a devastating effect on them and can cause psychological and emotional distress. Legal recourse and proactive measures are essential to protect parental rights and ensure the well being of the child. The term “child abduction” in private international law often refers to the illegal taking of youngsters from their home country by a friend or relative who is travelling elsewhere. The child and family can suffer psychological and emotional pain as a result, and they may lose their name, ethnicity, culture, and language.

Reference 

https://en.wikipedia.org/wiki/International_child_abduction

https://en.wikipedia.org/wiki/Hague_Convention_on_the_Civil_Aspects_of_International_Child_Abduction

https://www.hcch.net/en/instruments/conventions/status-table/?cid=24

CAR Act –  https://travel.state.gov/content/dam/childabduction/International_Child_Abduction_Remedies_Act.pdf 

LCI 218th Report https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081042.pdf