Cross-border child abduction: An analysis of the jurisprudence of best interests of children in India
Intercountry child abduction cases present a colossal challenge for the courts in determining courses of action. The Hague Convention on Civil Aspects of Child Abduction, 1980, provides for the mechanism of prompt “return of the child” to the “habitual residence”. The assumption is that the courts of habitual residence of the child are the best forum to promote the child’s best interests. “Welfare of the child” or “best interest of the child” are the guiding principles recognized by international law as the basis for child jurisprudence. However, India is not a signatory to the Hague Convention, which poses a significant challenge to applying orders of foreign courts relating to the custody and return of a child abducted to India. Considering the large diaspora and increasing cross border marriages, the issue of child abduction and the legal response in India assumes significance. Indian courts have devised their own term, “intimate contact”, as the connecting factor in lieu of “habitual residence” to address legal battles in intercountry child abduction cases. This article explores the Indian stance on intercountry child abduction. The article provides a critical analysis of the application of the principle of welfare of the child by the Indian judiciary in child abduction cases. Jurisprudence reveals that Indian courts have assessed the contours of the best interest of the child not just from the point of the habitual residence of the child, but considering the overall interest of the child. However, in the absence of a legislative framework, uncertainty prevails. The paper argues that there is a need for comprehensive legislation to address issues and challenges of intercountry child abduction cases, taking into account factors like “domestic violence”, child psychology, and other social factors pertinent for the determination of the best interest of the child.