Turkey: 1980 Hague Child Abduction Convention: The Return Procedure In Turkey


Due to the ease of international travel, the growing fashion in bi-cultural marriages and the boost in the divorce rates the international child abduction cases are increasing rapidly. The Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (the “Convention”) is designed to protect the interests of the child, the most sensitive issue of international family law.

The Convention aims to combat parental child abduction cases by providing a system of co-operation between the party states and offering a swift procedure for the return of the child to the country of the child’s habitual residence.

Signed by Turkey in 1998 and entered into force the following year, the Convention protects right to access and right to travel by secures the immediate return of the abducted children to the State of their habitual residence.

In this respect, the Convention pre-accept that the wrongful removal or retention across international boundaries contradicts the interests of the child. Thus, the return of the child to the State of the habitual residence will advocate his or her interests by defending the right to have contact with both parents of the child.

Central Authorities

The procedure of the returning of the child is carried out by cooperation of the Central Authorities of each Contracting State. According to the Convention, each party state has to designate a Central Authority, a specific government office that is carry out specialized obligations and duties that are set out by the Convention.

The Convention states that the Central Authority of the State is obliged to help the locating the child and take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child or an amicable resolution of the issues.

As per to the Article 7 of the Convention, either directly or through any intermediary action, Central Authorities obliged to take all appropriate measures to execute following responsibilities:

  1. Discover the whereabouts of a child who has been wrongfully removed or retained;
  2. Prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
  3. Secure the voluntary return of the child or to bring about an amicable resolution of the issues;
  4. Exchange, where desirable, information relating to the social background of the child;
  5. Provide information of a general character as to the law of their State in connection with the application of the Convention;
  6. Initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
  7. Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
  8. Provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
  9. Keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.

Central Authority for the Convention in Turkey is Ministry of Justice. As per to the Law No. 5717 which regulates the procedures and principles for the implementation of the Convention, obligations and the responsibilities set out by the Convention are fulfilled through the local Chief Public Prosecutors.

Returning of the Child

The Convention does not cover all children who might be subjected to the international wrongful takings or retentions.

Central Authorities has to inspect the detection of whether the child who has been abducted or retained falls within the scope of the Convention’s provisions. As per to the Convention the fundamental necessities may be summarized as follows;

  • The applicant must have the rights of custody of the abducted children,
  • The applicant must not have consented to the removal or retention,
  • There must not be a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,
  • The children must habitually resident in a Party State immediately before any breach of custody or access rights,
  • The country that is the children abducted must be a Contracting State,
  • The commencement of judicial or administrative proceedings must be made within one year from the time of wrongful removal or retention,
  • The abducted child must not attain the age of 16 years,

It must be noted, even where the proceedings have been commenced after the expiration of the period of one year, the judicial or administrative authority also have to order the return of the child, unless it is proven that the child is settled in its new environment.

In case it is determined that the necessary conditions are satisfied later of the return application, the Central Authority is bound to find the child and to secure the voluntary return of the child or to bring about an amicable resolution of the issues to facilitate the child’s return.

In this context, the Law no. 5717 specifies that all necessary precautions must be taken by the local Chief Public Prosecutor, including the identification of the place where the child is located, and the appointment of law enforcement agencies and other authorities for the protection of child interests.

If the returning of the child cannot be achieved by the consent of the parties, a court action must be filed. In this case, only the above-mentioned conditions are examined by the court. The Law no. 5717 prohibit the court from making a decision on the custody or guardianship.

f you have any questions or concerns regarding parental abduction to or from Turkey, feel free to contact us 24 / 7.  We are always available at  contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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USA/Brazil: Jury returns split verdict in international kidnapping case involving Houston boy


Carlos and Jemima Guimaraes walk into into the United States District Courthouse building on Wednesday, May 16, 2018, in Houston. The Guimaraes are on trial for conspiracy to abduct their grandson, Nico Brann. The 8-year-old boy has been living in Brazil since his mother took him there for a wedding in 2013, although she and his father had been granted split custody. Photo: Yi-Chin Lee, Houston Chronicle / © 2018 Houston Chronicle

The vacationing grandparents of a Houston boy were convicted Friday of aiding in an international kidnapping in a widely publicized dispute over an 8-year-old boy taken by his mother to Brazil in 2013.

The same federal court jury, however, acquitted the couple — Carlos Guimaraes, 67, and his wife Jemima Guimaraes, 66 — of related conspiracy charges.

The mixed verdict followed eight days of testimony in a three-week trial before U.S. District Judge Alfred H. Bennett in Houston. At issue was whether the couple conspired with their 40-year-old daughter, Marcelle Guimaraes, to help her secure a job abroad and enroll her son Nico in a Brazilian school in an elaborate plan to relocate permanently, in violation of a custody order in Harris County family court. The boy’s mother, who took the boy to her native country for a wedding and never returned, is wanted in the case, but remains in Brazil.

If you have any questions or concerns regarding parental abduction to or from The United States or Brazil feel free to contact us 24 / 7.  We are always available at  contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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Canada: Supreme Court of Canada Bulletin: Appeal Decided


Image result for canada flag

Office of the Children’s Lawyer v. Balev, 2018 SCC 16 — Family law — Custody — Wrongful removal or retention of child

On appeal from a judgment of the Ontario Court of Appeal (2016 ONCA 680) setting aside a decision of the Ontario Divisional Court (2016 ONSC 55).

The respondents were married in Ontario and moved to Germany in 2001 where their two children were born in 2002 and 2005. The children struggled with school in Germany so the father gave his time‑limited consent for the children to move to Canada with the mother for the 2013‑14 school year. The children attended school in Ontario where they resided with the mother and their grandparents. Because he suspected that the mother would not return the children to Germany at the end of the school year, the father purported to revoke his consent, resumed custody proceedings in Germany, and brought an action under the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) for an order that the children be returned to Germany. After the consent agreement lapsed, and his applications in Germany were unsuccessful, the father requested that his Hague Convention application be set down for a hearing before the Ontario court.

The application judge requested that the Office of the Children’s Lawyer (“OCL”) be appointed to represent the interests of the children. She found the children to be habitually resident in Germany and ordered the return of the children. The Divisional Court allowed the mother’s appeal. The Court of Appeal allowed the father’s appeal, concluding that the children were habitually resident in Germany at the relevant time, and that there had been a wrongful retention pursuant to Article 3 of the Hague Convention. The OCL applied for leave to appeal to this Court. An application for a stay pending this appeal was dismissed. The children were ultimately returned to Germany on October 15, 2016, where the mother was awarded sole custody by the German courts. The children returned to Canada on April 5, 2017. Although the appeal is now moot, the issues raised are important, and the law on how cases such as this fall to be decided requires clarification.

Held (6-3): The Court should adopt the hybrid approach to determining habitual residence under Article 3 of the Hague Convention, and a non technical approach to considering a child’s objection to removal under Article 13(2).

Per McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon and Brown JJ.:

The Hague Convention is aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence. A return order is not a custody determination; it is simply an order designed to restore the status quo which existed before the wrongful removal or retention. The heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was “habitually resident” immediately before the removal or retention and (b) those rights were actually being exercised or would have been exercised but for the wrongful removal or retention. If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply.

Only one requirement of Article 3 is challenged in this case — whether the children were habitually resident in Germany at the time of the wrongful retention. And the only relevant exception is the children’s alleged objection to being returned to Germany. The central question here is how an application judge should determine the question of a child’s habitual residence. There are three possible approaches: the parental intention approach, the child‑centred approach, and the hybrid approach. Currently, the parental intention approach dominates Canadian jurisprudence and determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives. Under this approach, time‑limited travel to which the parents agree does not change the child’s habitual residence. The hybrid approach, however, holds that instead of focusing primarily on either parental intention or the child’s acclimatization, the judge determining habitual residence must look to all relevant considerations arising from the facts of the case. The judge considers all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B. Considerations include the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis. The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children. But, there is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child. Imposing such a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely to evaluate all of the relevant circumstances. The hybrid approach is fact‑bound, practical, and unencumbered with rigid rules, formulas, or presumptions.

The clear trend of Hague Convention jurisprudence is to rejection of the parental intention approach and to adoption of the multi‑factored hybrid approach. The hybrid approach should be adopted in Canada because (1) the principle of harmonization supports this approach; and (2) it best conforms to the text, structure and purpose of the Hague Convention. A clear purpose of multilateral treaties is to harmonize parties’ domestic laws around agreed‑upon rules, practices, and principles. The Hague Convention was intended to establish procedures common to all the contracting states that would ensure the prompt return of children. To avoid frustrating the harmonizing purpose behind the Hague Convention, domestic courts should give serious consideration to decisions by the courts of other contracting states on its meaning and application. In the end, the best assurance of certainty lies in following the developing international jurisprudence that supports a multi‑factored hybrid approach. Furthermore, the hybrid approach best fulfills the goals of prompt return: (1) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, (2) encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence, and (3) protecting the child from the harmful effects of wrongful removal or retention.

Under the hybrid approach, a child’s habitual residence can change while he or she is staying with one parent under the time‑limited consent of the other. The application judge considers the intention of the parents that the move would be temporary, and the reasons for that agreement but also considers all other evidence relevant to the child’s habitual residence.

Article 13(2) is an exception to the general rule that a wrongfully removed or retained child must be returned to his or her country of habitual residence, but it should not be read so broadly that it erodes the general rule. The application judge’s discretion to refuse to return the child to the country of habitual residence arises only if the party opposing return establishes that: (1) the child has reached an appropriate age and degree of maturity at which his or her views can be taken into account, and (2) the child objects to return. Determining sufficient age and maturity in most cases is simply a matter of inference from the child’s demeanor, testimony and circumstances. The child’s objection should also be assessed in a straightforward fashion — without the imposition of formal conditions or requirements not set out in the text of the Hague Convention. In most cases, the object of Article 13(2) can be achieved by a single process in which the judge decides if the child possesses sufficient age and maturity to make his or her evidence useful, decides if the child objects to return, and, if so, exercises judicial discretion as to whether to return the child.

Finally, the time it took to bring this Hague Convention application to hearing and resolve the ensuing appeals was unacceptably long. The hardship and anxiety that such delays impose on children are exactly what the Hague Convention’s contracting parties sought to prevent by insisting on prompt return and expeditious procedures. It was up to the judicial authorities and court administrators in this case to ensure Canada lived up to its obligation under Article 11 to “act expeditiously in proceedings for the return of children”. Hague Convention proceedings should be judge‑led, not party‑driven, to ensure that they are determined expeditiously.

Per Moldaver, Côté and Rowe (dissenting):

The clear purpose of the Hague Convention is the enforcement of custody rights across international borders, which supports an approach to habitual residence based on parental intention. In this case, the children were habitually resident in Germany at the time of the alleged wrongful retention in Canada because there was no shared parental intent for Canada to become the children’s habitual residence.

Under the provisions of the Hague Convention, courts presented with return applications under Article 12 must perform a two‑step analysis. First, the court must determine whether the child was removed from his or her habitual residence or retained in another country by one parent in breach of the other parent’s custody rights. Second, the court must determine whether an exception to the return order applies. The central dispute in this appeal is at the first step of the analysis: deciding where the children are habitually resident under Article 3. In most cases, the focus should be on the intentions of the parents as the key element in the analysis, not the strength of the relevant contacts between the child and the competing jurisdictions. In contrast, the hybrid approach dilutes the importance of parental intent as the primary variable in favor of a multi‑factor test. The result is an unprincipled and open‑ended approach — untethered from the text, structure, and purpose of the Hague Convention — that creates a recipe for litigation.

Where the parents have agreed in writing that a move to a new jurisdiction is meant to be temporary, then that agreement should be given decisive weight. Where shared parental intent is otherwise clear from the evidence before the application judge, it should be determinative of habitual residence, absent exceptional circumstances. Some courts have recognized a narrow exception for cases where the evidence unequivocally points to the conclusion that the child has acclimatized to the new location but this requires evidence of more than simply settling in to a new location in order for shared parental intent to be disregarded

There are three strong indications that parental intent should be the decisive factor, as dictated by the text and structure of the Hague Convention. First, Article 12 contains two distinct provisions depending on when a Hague Convention proceeding is initiated. When proceedings have been commenced one year or more after the alleged wrongful removal or retention, a court need not order the child’s return if “it is demonstrated that the child is now settled in its new environment”. Alternatively, when proceedings are commenced within one year, the court is required to “order the return of the child forthwith”. Given this structure, it would not be proper to consider evidence of settling in when a proceeding is initiated within one year. Second, the two‑step analysis required by Article 12 differentiates the concept of habitual residence (at stage one) from evidence regarding the child’s circumstances (at stage two). Article 13(2) provides for an exception to the return order that specifically focuses on whether a child objects to a return. Incorporating considerations of this nature into the preliminary determination of habitual residence would inappropriately collapse the steps of the analysis. Third, Article 5 provides that custody rights include “the right to determine the child’s place of residence”, which suggests that parents, by virtue of their custody rights, must have some influence over where their child is deemed to be habitually resident.

The clear purpose of the Hague Convention also supports an approach based on parental intention. If respect for custody rights is the guiding purpose, it follows that parental intent should be a central focus in assessing habitual residence. Finally, policy reasons support the parental intention approach because it creates comparatively clear and certain law: absent shared parental intent, neither parent has anything to gain by abducting or retaining a child because the child’s habitual residence will remain the original country, absent exceptional circumstances. Therefore, the parental intent approach best aligns with the Hague Convention’s purposes by protecting custody rights and deterring abductions that may result from any approach that permits unilateral changes to habitual residence.

On the other hand, the hybrid approach, by incorporating other factors that could supplant parental intent into the determination of habitual residence — which effectively permits one parent to unilaterally change a child’s habitual residence without the other parent’s consent even in the face of an express agreement — blurs the distinction between custody adjudications and Hague Convention applications and undermines the Convention’s goals. Where there is unambiguous evidence of what the parents intended, the parental intent model offers a clear and predictable answer to the question of habitual residence.

Here, the relevant point in time for determining the children’s habitual residence is August 15, 2014 — the date on which the father’s period of consent expired. There is no question that the children were habitually resident in Germany prior to their trip to Canada by virtue of an express agreement indicating that the father only consented to a temporary stay in Canada. Article 13(2) should not be lightly invoked so as to systematically undermine custody rights of left‑behind parents. The application judge’s decision that the children had not expressed objections with the requisite strength of feeling is entitled to deference. As a result, there is no basis to refuse a return order after concluding that Germany was the children’s habitual residence. The appeal should be dismissed.

Reasons for judgment: McLachlin C.J. (Abella, Karakatsanis, Wagner, Gascon and Brown JJ. concurring)

Joint Dissenting Reasons: Côté and Rowe JJ. (Moldaver J. concurring)

Neutral Citation: 2018 SCC 16

Docket Number: 37250

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17064/index.do

If you have any questions or concerns regarding parental abduction to or Canada feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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Scotland: Preventing child abduction on Scottish government’s legislative agenda following solicitor’s campaign


Yousif Ahmed

The issue of international parental child abduction is now on the Scottish government’s legislative agenda following the efforts of a Glasgow solicitor.

As part of a consultation on family law reform launched last week, the government is seeking views on “how civil and criminal child abduction by parents can be further prevented”.

Scottish government figures show that the number of reported and recordable “outgoing” abductions has increased since 2007, when there were only two recorded incidents. In 2016, there were 20 recorded.

Campaigners have pointed out that the actual number of these cases is much higher as these figures only reflect reported and recordable cases of abductions specifically to Hague Convention countries, and the Scottish Government has confirmed that it does not record reported abductions to non-Hague Convention countries, of which there are around 97 across the world.

Yousif Ahmed, director of legal services at Cannons Law Practice, began a campaign last October calling for an end to a loophole in the law that allows one parent to remove their child from Scotland without the consent of the other.

Supported by Reunite International, a charity dealing with international parental child abduction, he urged the government to act on the issue.

Mr Ahmed said: “I am very pleased to have been able to lead and coordinate a successful national campaign calling on the Scottish government to implement positive legislative change in Scotland to help protect children and parents from the abuse and devastation of international parental child abduction.”

He added: “The Scottish government has heard the voice of the campaign and has taken our message on board. We are very pleased that as a result of our campaign work, it has now issued a consultation on proposals to reform the law. This is a fantastic achievement within a short space of time.

“We are very grateful and thankful to all of the organisations and people who have supported this campaign and helped us to get to this stage. A very special thanks to Alison Shalaby, CEO of Reunite International, for flying up from England to make representations to the Scottish government in support of the campaign and also to Mary Fee MSP for all of her help and support.

“I would ask everyone to get behind this extremely positive development by encouraging the Scottish government to implement the proposals set out in the consultation and effect the positive legislative change that is needed in Scotland. Together, we can make a difference and achieve a positive and lasting change that will help to protect children and parents all across the country from this abuse.”

If you have any questions or concerns regarding parental abduction to or from Scotland feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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UK: What every separated or divorced parent needs to know about taking kids on holiday


Complicated childcare arrangements, financial pressures and trying to keep bored children occupied are issues faced by all parents.

But for lone parents it’s even more difficult.

Here’s information on when you can take a child on holiday, whose permission is required and how you can prevent a parent from taking a child outside of England and Wales.

Clare Pilsworth, from Cambridge solicitors Woodfines, explains what you need to do, reports The Cambridge News.

What rights do you have?

Parental responsibility is defined in the Children’s Act 1989. In practice it means that anyone with parental responsibility has a right to take part in the major decisions in their child’s life. The child’s mother always has parental responsibility.

The child’s father has responsibility if:

  • He is married to the mother at the time of the birth (and under English law if he marries the mother later on)
  • He is on the birth certificate (for births registered in England and Wales after December 1 2003)
  • He and the mother have signed a parental responsibility agreement
  • The court has made a parental responsibility order in the father’s favour.

What legal issues could you face?

A parent can take their child (aged under 16) anywhere in England and Wales without the permission of the other person with parental responsibility – as long as there is not order in place prohibiting this. But everyone who has parental responsibility must agree to a child being taken abroad.

A parent may also need permission from anyone else who has parental responsibility e.g. a guardian.

So could you be breaking the law?

It is a criminal offence to remove a child even for a short holiday abroad, without the consent of the other parent, consent from the court or having a formal ‘lives with child arrangements order’ in place. If consent is not given you could be prosecuted for child abduction.

What is a Child Arrangement Order ?

A parent can take a child abroad for up to 28 days without getting permission if they have this order in place. It must state that the child is to live with that parent, and there must be no other court orders that prohibit the child being taken abroad.

Do you have to go through the courts?

Ideally, providing the other parent with information such as the destination, date of departure and return, travel details, accommodation address and contact telephone number should be sufficient. Even so it makes sense to get an acknowledgment signed by the other parent, and to take a copy of this on the trip.

What if you don’t gain consent?

If the other parent doesn’t give their consent, it is possible to seek permission from the court to take a child outside England and Wales for a temporary period under a Specific Issue Order. If the other parent objects, they can apply to the court for a Prohibited Steps Order.

If you have any questions or concerns regarding parental abduction to or from The UK  feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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USA / India: India Working With U.S. to Find Solution to Child Abduction, Says State Department Official


child abduction

In a new report, the State Department stated that India is insufficiently acting against parents who have kidnapped Indian American children. India is the number three country in the world for parental child abductions. Above, a drawing on the website of Bring Our Kids Home, which advocates for Indian American children who have been kidnapped by their parents. (Bring Our Kids Home photo)

India is beginning to work with the U.S. to find a solution to child abduction cases, a State Department official told lawmakers May 17.

“India is beginning to work with us to find practical solutions for children who are being abducted between our two countries,” Suzanne I. Lawrence, Special Advisor, Children’s Issues Bureau of Consular Affairs at the Department of State, told members of the House Foreign Affairs Committee’s Sub-committee on Africa, Global Health, Global Human Rights and International Organizations, as reported by PTI.

In 2017, the State Department reported 104 cases of abduction of U.S. children in India. This includes 20 new cases and 84 from the previous years.

Lawrence added that she also pressed upon the Indian government to join the Hague Convention. India is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. No bilateral agreements exist between the two countries. Without the Hague Abduction Convention or any other protocols intended to resolve abduction cases, parents generally must pursue custody of abducted children in Indian courts, where they are mostly unsuccessful.

India is the number 1 non-Hague Abduction Convention signatory destination of child abduction from the U.S., and number 3 overall, according to a 2015 State Department report.

“The United States nor India have engaged seriously to remedy the human tragedy, the proof of which lies in the ever increasing volume of unresolved abductions cases to India, over 50 percent of them pending for five years or more,” noted the organization Bring Our Kids Home, which advocates for Indian American children who have been kidnapped by their parents (see earlier India-West story here).

India is widely referred to as a “safe haven” for abducting parents who take advantage of a favorable Indian judicial system, and face no consequences for their wrongdoing, noted BOKH.

“Parental child abduction is not recognized as a crime in India, judges decide abduction cases on arbitrary basis, wrongfully asserting jurisdiction on foreign nationals and non-resident Indians,” stated the organization.

Lawrence’s remarks came on the same day that the State Department released a new report on child abduction, in which it accused India of not doing enough to protect abducted Indian American children.

The report noted that 90 percent of child abduction cases from the U.S. to India have languished in Indian courts for over a year.

“India does not adhere to any protocols with respect to international parental child abduction. In 2017, India demonstrated a pattern of non-compliance. Specifically, the competent authorities in India persistently failed to work with the Department of State to resolve abduction cases,” the report said.

“Judicial action in custody cases in India has been slow, and Indian courts tend to default to granting custody to the taking parent. The lack of clear legal procedures for addressing international parental child abduction cases under Indian law makes it difficult for India to resolve these cases,” it said.

“I am personally committed to pressing these countries to take more effective measures to resolve cases of IPCA on behalf of children and families around the world,” Secretary of State Mike Pompeo said in a forward to the report.

In June 2016, when former President Barack Obama met with Prime Minister Narendra Modi, the U.S. and India in a joint statement committed to renew efforts to address a range of issues affecting their citizens, including issues related to child custody. The issue was also raised by the then Secretary of State John Kerry, as reported by PTI.

If you have any questions or concerns regarding parental abduction to or from The United States or India feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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USA / India: India must not give in to the US’ ‘global bullying’ tactics


The United States has been exerting diplomatic pressure on India to accede to the outdated and flawed Hague Convention. But there are plenty of good reasons why India should resist this unfair demand.

 

The US pressure on India to sign the Hague Convention shows yet again how self-serving Western countries are when they make demands of developing nations in the name of child welfare or other “soft” issues. The Hague Convention stymies the Indian woman just as she comes into her own. For the first time, perhaps in history, middle-class Indian women are able to be independent and take care of their children. This leads to an inevitable and we hope temporary phase of strain in all marriages, but especially NRI marriages, as Indian society reorients itself to new values. You would think that the USA would be rooting for Indian mothers at this sensitive moment in their journey towards economic and social emancipation. But this is not the case.

India is under relentless pressure from the United States of America to accede to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). As the pressure on India mounts to accept this outdated and flawed Convention, it becomes prudent to take a closer look at whether it achieves what it claims to do, viz., protect the welfare of children.

It is pertinent to note at the outset that the Hague Convention does not address the cause of the so-called “abduction” of a child by a parent, typically the mother. It only provides a one-size-fits-all solution of forcing the child back to the country they left with the leaving parent. For instance, the Hague Convention does not recognise “domestic violence” as a factor in the alleged abduction; the phrase is nowhere to be found in its text. The alleged perpetrators of the abduction, generally mothers, are often faced with the unenviable option of staying in an abusive environment, leaving without their children, or leaving with their children.Each of these choices comes with great costs and hardships that are overlooked when mothers leaving bad marriages are accused in courts of “child abduction”.

The flaws of the Hague Convention in this respect have been acknowledged even in the US, albeit belatedly. In 2014, 34 years after the Convention came into force (in 1980), the United States Supreme Court in the Hague Convention case of Lozano v. Montoya Alvarez, recognised the impact of domestic violence on the child for the first time. The Hague Domestic Violence Project at the University of California, Berkley conducted a path breaking study on “Hague domestic violence cases” in the United States. The study found that nearly half of the women and/or children, who returned to the country of so-called “habitual residence”, were victims of renewed violence or threats by the same abusers from whom they had originally fled. Mothers reported that none of the court orders or voluntary undertakings from their spouses aimed at protecting them or their children upon their return to the country which they had fled were implemented or followed through.

Some Non-Resident Indian (NRI) marriages can be a nightmare for the woman.This is especially true where the women are dependent on their spouses for visas or Green Cards, medical insurance or even day-to-day living expenses. Despite all the talk about equality, many Indians abroad continue to follow the traditional family lifestyle. Men expect their wives to toe the line, and the burden of running the household and caring for the children falls entirely on the women, irrespective of their employment status.

When such a relationship turns out to be physically or emotionally abusive, the life for the victimised mother and child can be hellish. The prescribed remedy of seeking help from the authorities, thought of in the USA as a safeguard mechanism, is fraught with danger for the children involved. When abuse in a household with children is reported to the authorities, Child Protective Services (CPS) inevitably get involved. The strategy that is generally deployed is to remove the children from the abusive household first and ask questions later. Thus, the mother is not only faced with an abusive marriage, but she also faces losing her children to CPS and ultimately, to
foster care.

Even in situations without domestic violence, if the marriage breaks down and the mother, as the primary care giver, feels that she needs to be in India with her family and with other support, she should not be penalised or treated as an abductor. An immigrant woman faces many economic, legal and social hurdles in an alien land. Without the support of her spouse, she may feel the need to return “home” to her country of origin where she can feel safe and her children may be taken care of. This is a human situation that the Hague Convention fails to recognise.

Article 13(b) of the Hague Convention makes an exception where the return to the country of habitual residence poses a“grave danger”, but it has never been successfully defended. The Article does not clearly prescribe what constitutes “grave danger”, and puts a high burden of proof on the victim. Research on the International Child Abduction database (HCCH INCADAT) of the “grave risk” defence under the Hague Convention demonstrates that the threshold for establishing this defence is very high and does not allow for the real life considerations that may compel a parent to leave the country of habitual residence in the best interests of the child. For example, in the case of Medhurt and Markle, the mother was unable to establish the “grave risk” defence when she argued that financial dependence on her ex-husband was harmful to her. The court ordered her 5-month-old infant back and refused to respect the mother’s work rights. In another case, Mahler v. Mahler, the court held that alcoholism, lack of financial support and confrontational and abusive behaviour, even when proven, would not necessarily qualify as “grave risk” under the Hague Convention. Both daughters, six and 1.5 years old, were ordered back to the country of habitual residence.There are many other such examples.

Another flaw in the Hague Convention is that it does not take into account the fact that claimants may be making false allegations of “abduction”. The possibility that an abduction complaint is filed as an afterthought to intimidate the mother into submission, is not even considered in the Hague Convention.There are cases where abduction claims were filed as an afterthought to pressurise the other party, when in fact the entire family came to India voluntarily. An example is the case of Maya Singh, whose husband abandoned her in India with an infant of eight months. When she approached the courts to file for divorce, her husband, by then in the US, invoked the infamous US “International Parental Kidnapping Crime Act” (IPKCA), to terrorise her internationally, and avoid his alimony and child support responsibilities.In some cases, the mothers even have in their possession notarised consent for relocation from the spouse who later claimed abduction.

The Justice Bindal Committee has earlier this month given its report to the Ministry of Women and Child Development on whether India should accede to the Hague Convention. The Bindal Committee Report rightly questions the Hague Convention’s approach of holding “habitual residence” as being the paramount issue in determining the welfare of a child. The Report points to failed marriages and domestic violence as an important factor causing women to return to India with their children. It correctly rejects the Hague Convention’s one-size-fits-all formula of forcing the child back to the country of habitual residence. Instead, the Committee recommends an approach where the best interests of the child and merits of a case are analysed case-by-case, while placing due emphasis on Indian family arrangements, such as the presence of grandparents and extended family to help in raising children. The Committee correctly points out that the US solution of foster care is not optimal for a child in the Indian context, where the extended family is available to step-in for care of the child when needed.

However, certain of the Bindal Committee’s recommendations need reconsideration. The Committee proposes a Nodal Authority as a one-window solution in international custody disputes. However, lack of judicial procedure and appeal process violates the right to due process under law. We are also concerned that it would be dangerous to give such unfettered power to a non-judicial authority. The proposed new laws should not be included in the Juvenile Justice Act which carries penal provisions. Jailing a mother trying to protect herself and her child is inhumane. The proposed measures of the Bindal Committee overlook the fact that false abduction cases are rampant and that vindictive spouses are abusing the loopholes in the system to register false cases even after having given consent to relocate from the so-called country of habitual residence.A full court hearing rather than an extra-judicial procedure is the correct forum to decide these matters. One important factor that is not addressed in the Bindal Committee Report is that the US government is clamping down on visas. Under the circumstances, if the child in an international custody dispute is ordered back to the US or other visa-unfriendly country, who shoulders the responsibility of giving a visa to the Indian resident parent?

It should also be made clear that any new law will not be retrospective. Parents who have been back for 4-5 years and have been litigating with temporary or permanent custody orders awarded to them by Indian courts, cannot be asked to re-litigate under a new law that may come into effect.

The United States in continuing to demand that India accede to the Hague Convention, is engaging in nothing more than global bullying. Just because a child has one parent in the US, the family, even mothers and babes-in-arms are being used as fodder by the US to assert its power and authority. The United States itself refuses to accede to the United Nations Convention for the Rights of the Child, stating that it violates US sovereignty. The Indian Government, were it to accede to US demands, would be irrevocably compromising India’s sovereignty, while disregarding the plight of its own women and children. It is the Constitutional right of every woman and child of Indian origin to return to their homeland to enjoy a peaceful, safe and dignified life.  How can the Government bar people of Indian origin from returning home?

Very few developing countries have signed the Hague Convention, as its provisions fall heavier on the party from the developing world. The USA is pushing India to accede to the Hague Convention so as to use India’s accession to persuade other developing countries to do the same. We hope that India will refuse to accede to the Hague Convention, or any law permitting the summary extradition of Indian origin children to foreign lands.

Niharika Dass is a member of India is Home for Our Kids, which is an India-based volunteer organisation of parents, primarily mothers, victimised by false child abduction allegations in international custody disputes

The Global Child Rights and Wrongs series is published in collaboration with  http://www.saveyourchildren.in, lawyer Suranya Aiyar’s website critiquing the role of governments and NGOs in child-related policy

If you have any questions or concerns regarding parental abduction to or from The United States or India feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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