Sharanjit Kaur

The author is Partner, Withers Khattarwong. She is a Family Law Specialist assisting clients in all areas of matrimonial law including property settlement, spousal maintenance, parenting matters, child support and financial agreements. She regularly represents clients both within Singapore and overseas in countries such as Australia, Hong Kong, India, United Kingdom, UAE and USA.

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A Parent’s Nightmare: Cross-Border Child Abduction

The Indian Constitution addresses cross-border child abduction cases as custody cases, implementing certain procedures to help parents whose children have been abducted to India.

While it may lead to worry or panic when a parent loses sight of their child, the shock and distress upon finding out that their child has been whisked away to another country could be far greater. With divorce proceedings ongoing or completed, there have been cases where a desperate party took matters into their own hands through the forceful relocation of their child, leaving the other parent fretting and hoping for the safe return of the child.

The act of wrongfully removing or retaining a child to a different jurisdiction by one parent, without the consent of the other, is also known as cross-border child abduction.

Increased interconnectivity and ease of travel have contributed to a steady rise in the number of international families. The increase in migration has, however, brought with it a new set of family disputes and problems that may arise when marriages break down.

Should tensions run high, one may feel alone and trapped in the new country, and desperate to return home where their support network is located. In extreme cases, fuelled by the fear of losing the child forever, he or she may thus decide to pack up and leave with children in tow, without consent from his or her other half.

In 1980, the United Nations introduced the Hague Convention on the Civil Aspects of International Child Abduction, otherwise known simply as the Hague Convention. The Convention serves as a multilateral treaty to ensure children abducted to another country are returned to their rightful parent or guardian.

When a country is a signatory to the Convention, domestic laws will be implemented, in line with the country’s obligations under the Hague Convention. In the case of Singapore, this would be the International Child Abduction Act (ICAA). In the event of cross-border child abduction, a parent would hope that they can rely on the Hague Convention to recover their child. However, as of July 2019, only 101 nations have ratified the Convention.

Should the country the child is brought to not be a signatory to the Hague Convention, recovering the child could prove more challenging. Parents who abduct their children thus take refuge in these countries, enticed by the possibility of cutting off any recourse the other parent may have. 

Although seeking the child's return from a country that is not a signatory to the Hague Convention might seem like a rather tedious and tumultuous process, all hope not is lost. Despite not being a signatory to the Convention due to their reservations to the provisions laid out, many countries like India still prioritise the welfare and rights of children and have included measures to tackle cross-border child abduction in their own laws.

A closer look at India as a non-signatory

India is not a signatory to the Hague Convention, citing reservations that it may lead to further harassment of women escaping marital discord or domestic violence. Nevertheless, the Indian Constitution addresses cross-border child abduction cases as custody cases, implementing certain procedures to help parents whose children have been abducted to India.

Under Article 226 of the Indian Constitution, parties can petition to the State High Court to issue a writ of Habeas Corpus (a court ordering summoning both the abducting parent and child) against the abducting parent. The definition of abduction used in the Indian Constitution is also similar to that defined under the Hague Convention. Furthermore, changes in the interpretation of the Hindu Minority and Guardianship Act hint that India is slowly progressing towards implementing measures to ensure the swift return of abducted children across borders – reflecting the overarching aim of the Hague Convention.

Courts in India have also repeatedly stressed that the welfare of the child should be of paramount concern when dealing with child abduction cases. This has been expounded in prior judgements, such as in a case judged by the High Court of Delhi. The wife had brought her children from the US to India and informed her husband that she had no intention of returning. Despite a judgment obtained by the husband from the US courts for the sole, physical and legal custody of the children, and the filing of a writ of Habeas Corpus in the High Court of Delhi for the wife to return the children, the High Court of Delhi held that the paramount welfare of the children would lie in shared parenting in the US, and ordered the return of the children. Such a case demonstrates that, despite not being a signatory, there are provisions available to parents hoping for the safe return of their children.

A closer look at Singapore as a signatory 
If residing in a signatory state, Singapore’s ICAA allows for a parent to apply to the Singapore Court for a child, who has been wrongly removed or retained in Singapore, to be returned to them. Similar laws would have been put in place in other signatory states to ensure the safe return of a child between two signatories.

However, if the child was removed from a non-signatory state to Singapore, the ICAA cannot be applied for the return of the child. In such an instance, the Guardianship of Infants Act ensures the return of the child to the left-behind parent, with the Singapore Court having determined that it is in the child’s best interest to do so. Following which, the courts in non-Hague countries may give effect to the order for the child's return to Singapore, having held the child’s welfare as paramount, as illustrated in the aforementioned Court of Delhi case.

As with any international treaty, certain provisions within the Hague Convention have been met with reservations by UN member states. However, perhaps more importantly, courts of some non-signatory states, like the Court of Delhi, have introduced measures to tackle cross-border child abduction with the child’s best interest made a key consideration in judgement. Parents caught in such a predicament can be slightly more assured that there are solutions available in ensuring the safe and swift return of their child.

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house

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