PLEA SEEKING GUIDELINES ON INTERNATIONAL PARENTAL CHILD ABDUCTION

inbatv Articles, Legal Reforms

On February 25, 2020 petition was heard concerning the framing of guidelines against International Parental Child Abduction (IPCA), by the Three-Judge Bench of Supreme Court comprising Justices R.F. Nariman, Ravindra Bhat, and V. Ramasubramanian. The matter was later adjourned as part-heard and ordered to be next listed after the Holi break.

What are International Parental Child Abduction laws in India?

 International Parental Child Abduction refers to when a parent out of their spousal relation takes away the child from that of another spouse, it can be either done out of overpowering adoration and friendship and not harm or by any ill-motive.

However, each State has its laws representing parental rights and duties, yet for the most part; guardians are the people that have legitimate care of a child. A child can’t have more than two legitimate guardians at any given moment. In re McGrath (Infants), Lindley LJ said: “The dominant matter for the consideration or the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”[1]

Why children are kidnapped by their Parents?

There might be various reasons, some of them like:

  1. The parent may not be agreed with the custody order so granted by the court;
  2. Out of safety concern of child;
  3. Or with the ulterior motive of taking revenge with the other parent.

Arguments by Advocates:

Petitioner side advocate Adv. Shadan Farasat on behalf of NGO “Bring Your Kids Home” a US-based NGO; advanced the arguments, citing various International obligations that corroborate the framing of guidelines against the abduction of children across borders.  According to her there exists an obligation on India to act International guidelines, specifically at the time when there is no legislative law over the issue. She said “India ratified the United Nations Convention on the Rights of the Child (“UNCRC”) in 1992 which imposes various international obligations on India in respect of illegal removal of child from one jurisdiction to another jurisdiction to deny the child and/or one or both of his parent’s access to each other”.

However, on behalf of Union ASG Pinky Anand asserted that the Ministry of external affairs is currently engaged in formulating a framework in the light of observations on the “Bindal Committee Report”. The committee was headed by Justice Rajesh Bindal, in which he submitted its report to WCD Minister on 23rd April 2018. In the report, he made recommendations on Inter-Country removal & retention of children in line with India’s international obligations in the UNRC. [2]

Thereby Justice Nariman observed:

“Surely in the absence of legislation, some guidelines need to be implemented. This Committee has done lots of work. Doing nothing about it makes no sense.”

Submitted by

Sakshi Raje

Student Reporter, INBA

[1]https://lawtimesjournal.in/plea-seeking-guidelines-on-international-parental-child-abduction-hearing-progressing-in-supreme-court/

[2] https://www.livelaw.in/top-stories/plea-seeking-guidelines-for-international-parental-child-abduction-sc-reprimands-government-for-lacunae-153190