A large number of women married to Indians residing abroad are compelled to return to India with their children when the spousal relationship turns sour. The moral minefield embedded in the shifting landscape of marital discord moves to the much complicated terrain of a custody battle. When children are abducted by their own parent, it results in their being traumatised and their parents being destroyed.
The complicated pitfalls of crosscultural relationships, and the inadequacies of international law to serve justice in the interests of the most vulnerable, even makes it tricky for the judiciary to decide such cases. There is a rise in such cases of cross-country battles which often take an ugly shape. Though “abduction” is a strong word for an act by loving parents, but legally speaking that is what it is. Confusingly for children innocently loving both parents, it’s also often the case of parents putting their own needs above those of their children.
Worldwide, about 70 per cent of children are taken by their mothers. Australia witnesses between 250 and 300 children being abducted by a parent. At present, there are about 80 cases where Indian parents have removed a child from the US and brought him or her to India and in some cases where parents have taken the children to the US from India.
In the absence of a domestic law on “inter-parental child abduction” in India, very often children of such NRIs’ who have grown up abroad become silent victims of their parents’ marital dispute when they are forcibly brought back by one of them. Currently, there is no specific Indian legislation addressing issues related to abduction of children from and into India. However, the Law Commission of India had submitted its 218th report titled ‘Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction 1980’ on 30 March 2009, though there has not been much development on this front.
Recently, the Commission has also suggested some modifications in “The Protection of Children (Inter-country Removal and Retention) Bill, 2016”. It recognizes the issue of interspousal child removal on breakdown of diverse family units, in a situation where children are abducted by their own parents to India or to other foreign jurisdictions, in violation of interim/final orders of competent Courts.
In the US and Europe, interparental child abduction is a serious offence where the accused parent can go to jail on charges of abduction. Closer home, Sri Lanka, which is a signatory to the Hague Convention, has framed its own rules that allow the court to decide if a child should be sent back to the country from where he or she was removed.
Hague Convention is a multilateral treaty which came into existence on 1 December 1983. It seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for the rights of access.” It seeks to return children abducted or retained overseas by a parent to their country of habitual residence and for the courts of that country to decide on matters of residence and contact.
The convention applies to any child up to the age of 16 years, who is a habitual resident of any of the contacting states. If the country of destination is a signatory to the Hague convention on the civil aspects of international child abduction, the “left-behind parent”, as they come to be known, can seek legal recourse.
Ninety-four countries are party to this convention and there are procedural rules that apply to the cases including a timeline and how they should be handled. India is not a signatory to the Hague Convention. A country has to have a domestic law in place before it can become a signatory and soon India is going to have a domestic law on it.
According to the Ministry of Women and Child Welfare, the matter of ratifying the Hague Convention was taken up following lobbying by groups in the United States and certain European nations. The pressure from the developed countries to get India to be a signatory to the treaty was based on gender equality and the idea that the father should have equal rights to the child as the mother.
Unfortunately, that doesn’t apply here given the reality of Indian marriages. In some of the cases, husbands have procured orders from US courts which could translate into the woman being arrested the minute she goes back to the foreign country. If the convention is ratified, India has to send the woman and the child back immediately as the act of escaping with the child is treated as abduction. This strips them of the protective cover they have in their own country.
Since India is not a signatory, presently the father has to come to India to take legal recourse in Indian courts if he wants to claim custody of the child.
Judicial Response in India
The Supreme Court had several occasions to deal with such complex emotional issues and it has repeatedly held that repatriation of the child to the foreign land should not (a) cause any moral, physical, social, cultural or psychological harm to the child; (b) cause any legal harm to the parent with whom the child is in India; (c) violate the fundamental principles of human rights and freedoms of the receiving country, i.e., where the child is being held and; (d) considering the child welfare principle, due importance must be given to the primary care-giver of the child.
In the latest case of Surya Vandanan v. State of Tamil Nadu (2015), it has held that primary importance is to decide whether the foreign court has jurisdiction over the child in question if the child is ‘ordinarily resident’ in the foreign court’s territorial jurisdiction and, then the order of the foreign court must be given due weight and respect.
Most children who are abducted by a family member suffer tremendous emotional consequences. The parents should prioritise the welfare of the children and the impact on the children due to such action. After Mexico we have more abductions from India than from any other country. The Mexican cases get resolved, the Indian cases don’t.
Unfortunately, women involved in cross-jurisdictional divorces, ‘holiday marriages’ or ‘limping marriages’ have to face additional challenges in the custody battle, which also relate to the problem of jurisdiction, access to judicial recourse and resources. This may be viewed as a bias against the interests of women.
The woman must not be put in a situation where she has to make the impossible choice between her children and putting up with an abusive relationship in a foreign country.
Parental child abduction is a calculated, malicious act committed by a disgruntled spouse/ex-spouse, who may be forum shopping to avoid a fair and timely child custody determination, and who may be in violation of already existing custody orders. This is a violation of a child’s rights as per the law in many jurisdictions. The abducting parent inflicts emotional, psychological pain on the parent left behind without regard to the child’s well being, often with the backing and support of the abductor’s family and legal advisers. Such act deprives the children of parental love and affection, robs them of their family, friends, their home, their identity, and systematically alienates them from a familial atmosphere.
(The author is an Advocate, Supreme Court of India)
The family of Marie Eleni Grimsrud – the young girl who was snatched by her estranged father and who is still missing – have succeeded in getting a court in Norway to recognise her case as an abduction.
The ruling in the Scandinavian country is seen by legal experts as a blow to the efforts of her father – 49-year-old Leif Torkel Grimsrud – to take her legally back to Norway. Legal representatives of the mother had made the motion at the Oslo District Court.
Four-year-old Marie was abducted on April 27 as her mother, 43-year-old Greek Cypriot Lena Ioannou, was dropping her off at nursery in Nicosia. Police say the father had orchestrated the abduction and an international arrest warrant is out against him.
Several people had been arrested at the time but have since been released due to lack of evidence.
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Corresponde suspender la orden de restitución de dos hermanos menores de edad dictada a favor de su progenitor para volver a España a vivir con él, en tanto que a partir de los planteos y voluntades expresadas por los jóvenes con posterioridad a ella, el efectivo cumplimiento de la restitución, que no podría ser sino coactivo y por ende por la fuerza pública, supondría contravenir incluso los propios términos de la Convención de la Haya de 1980 al consagrarse, por un lado, un retorno “brutal” y no “seguro” para los jóvenes, y por el otro, una violación de lo dispuesto por los arts. 4 y 13, penúltimo párrafo “in fine” de la propia Convención mencionada; máxime cuando resolver lo contrario no sólo conculcaría los deseos y convicciones de los jóvenes, sino también el “interés familiar” y específicamente el de su progenitor, al manifestar éstos que de no respetarse su voluntad romperían el vínculo con el mismo.
Sin desconocer el valor y la inalterabilidad de la cosa juzgada como principio, por un lado el interés superior del niño constituye un derecho con jerarquía constitucional (conf. art. 3 de la Convención sobre los Derechos del Niño, art. 75, inc. 22 de la Constitución Nacional), además de todo preferente y que reviste carácter de orden público e irrenunciable (art. 2 de la Ley Nº 26.061), y por el otro, que actualmente existen previsiones legales expresas (art. 440, segundo párrafo, del Cód. Civ. y Comercial de la Nación) que permiten la revisión de convenios homologados o resoluciones judiciales “si la situación se ha modificado sustancialmente”, en lo atinente a todos los aspectos vinculados con la parentalidad y efectos del divorcio, como ser el cuidado personal, régimen de comunicación, y el resto de derechos y deberes de los progenitores y de sus hijos en materia familiar, con un criterio que desde ya es restrictivo y debe encontrarse justificado en las particularidades del caso en concreto.
No todo convenio homologado ni toda decisión judicial puede ser revisada; sólo podrá efectivizarse tal revisión en los casos donde existe real modificación de la situación que se tuvo en miras al resolver o acordar de tal o cual forma, que amerite una nueva tutela, es decir cuando afecte seriamente la situación familiar o la de los hijos menores, o, en materia alimentaria, si varían sustancialmente la situación del alimentante o la del alimentado.
La Convención sobre los Derechos del Niño, que posee jerarquía constitucional (art. 75, inc. 22 de la CN), en su art. 12 establece que “1.Los Estados Partes garantizarán al niño que esté en condiciones de formarse un juicio propio el derecho de expresar su opinión libremente en todos los asuntos que afectan al niño, teniéndose debidamente en cuenta las opiniones del niño, en función de la edad y madurez del niño; 2. con tal fin, se dará en particular al niño oportunidad de ser escuchado, en todo procedimiento judicial o administrativo que afecte al niño, ya sea directamente o por medio de un representante o de un órgano apropiado, en consonancia con las normas de procedimiento de la ley nacional”.
En los procesos de familia, la solución del conflicto se debe proyectar para el futuro, en función del porvenir, lo que supone que no se agota la solución en el conflicto puntual y actual, sino que las decisiones que adopten los jueces deben contemplar conflictos latentes que puedan desencadenarse en el futuro.
Los jóvenes deben dejar de ser objeto en la controversia entre los padres, para constituirse en auténticos sujetos cuya opinión sea debidamente valorada de acuerdo a su edad y madurez y, a la par, quede habilitada su participación activa en el proceso.
El interés superior de los menores (art. 3, ap. 1, Convención sobre los Derechos del Niño) “constituye una pauta que orienta y condiciona la decisión de los tribunales en el juzgamiento de las causas en las que se ven involucrados intereses de aquellos” y ponderando que “cuando se trata de resguardar el interés superior del niño, atañe a los jueces buscar soluciones que se avengan con la urgencia y la naturaleza de las pretensiones, encauzar los trámites por vías expeditivas y evitar que el rigor de las formas pueda conducir a la frustración de derechos que cuentan con particular tutela constitucional”.
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Heartbroken Irish dad says family's lives have been 'shattered' since son was abducted three years ago.
Jeremy O'Connor hasn't seen his ex wife or his son since 2014
A heartbroken dad who hasn’t hugged his son since he was abducted three years ago says the lives of his family have been “shattered”.
Jeremy O’Connor drove his ex-wife Yolandie Botha and their then four-year-old boy Joshua to the airport for a month-long holiday to South Africa in 2014 – and hasn’t seen either of them since.
The 48-year-old, from Navan, Co Meath, contacted the authorities to report the parental child abduction and said he was told a court case would be held within a year under the Hague Convention.
However, three years on Jeremy, who has three other children, still awaits a court case to get his son back.
Although he Skypes Joshua, now seven, regularly, he hasn’t held him in three years and is worried his son is beginning to forget his relatives.
Jeremy said: “Under the Hague Convention, a parental child abduction case is expedited in under a year to avoid a child becoming settled in another country.”
But South African authorities have deferred court hearings three times, with no new date given.
Jeremy, who works in sales, added: “Yolandie and I split amicably after being together a number of years.
“I had absolutely no problem with her taking Joshua to South Africa for a month-long holiday to see her family.
“I signed the necessary consent forms and even drove them to the airport. That was the last time I saw my son.
“She contacted me before she was due to return to tell me they weren’t coming back.”
Jeremy says that under access rights, he is allowed to contact Joshua through online video chats.
He said: “I Skype him regularly but haven’t seen him in over three years. I also have other children who miss him dreadfully and he has missed out on a lot of family occasions.
“I was really close to Joshua when he was here and now I only see him on a screen. I can’t even hug him.
“My mother – his grandmother – Skyped him the other day and he didn’t know who she was.
“She was devastated and cried no end. I feel failed by the South African authorities.
“They haven’t appointed me a solicitor and every court date has been deferred.”
Jeremy now fears, due to the length of time elapsed, a court might rule Joshua is settled in South Africa and it would be an upheaval to move him.
He said: “He has Irish citizenship, he was taken wrongfully out of this country and I should have had him back at least two years ago, if the justice system worked properly.”
Jeremy has now decided to talk about his plight publicly as he feels all other routes failed.
He added: “I’m stuck in this limbo for ever and it gets worse and worse everyday.
“A lot of lives have been shattered by this and I’m desperate to try and get some kind of help.”
An Irish Department of Justice spokesperson said: “The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) is a treaty between states that was set up to protect
children subjected to situations of international child abduction.
It aims to return children to the state where they usually lived prior to their wrongful removal, so the courts can make decisions in relation to matters of custody and/or access.
“The Convention also allows left behind parents to seek to establish access rights to their children. The Convention has been agreed to by over 90 countries, including Ireland, and it has been given the full force of the law in Ireland.”
When contacted by the Irish Mirror yesterday, Yolandie said she was not allowed to talk about th
UK: Mum's daring mission to rescue her children after their refugee father took them to war-torn Iraq.
A courageous British mum risked her life to rescue her children after they were abducted and held in Iraq for over two years.
Kerrie Shaw, 30, went through “absolute hell” on a string of treacherous trips to the war-ravaged country.
She was kidnapped herself and held for a month but bravely returned one more time – finally snatching her kids back as their Iraqi father and his family slept.
Kerrie, who ran up a £10,000 debt to pay for the five nerve-jangling trips, had to act alone after UK authorities told her they were powerless to help.
Kerrie met the childrens' father Akor Arf when he was a refugee (Image: Stan Kujawa)
She says: “It’s a miracle I managed to get my children home. I count my blessings every day.
“I lived every parent’s worst nightmare. I’d wake in the night kicking and screaming because my children weren’t there and I felt like I had nowhere to turn.
“I went through absolute hell but I’d do it again in a heartbeat for my babies. Any mum would.”
Kerrie tells her story for the first time as we reveal her children Daniella, now 13, and Makor, 12, are among 1,000 British child victims of parental abduction abroad every year.
Campaigners are fighting for new laws to protect kids in love-tug disputes.
Kerrie’s agony started in 2010 when the children’s dad Akor Arf, 37, whisked them to his native country as she worked a shift in a chicken factory.
She was only 12 when she had met refugee Arf on the streets of Chatham, Kent, in 2000.
He was in his late teens and Kerrie, vulnerable and from a broken home, fell for him.
Dad fears boy, 14, was snatched by paedophile gang - now all he has are pictures and memories of beloved boy
Akor snatched Makor and Daniella and whisked them away
She agreed to marry him days after she turned 17, they moved to Hampshire and she became a mum soon after.
Kerrie says she had to work 12-hour days in the chicken factory to support the family while Arf lived off her wages.
But her world imploded in July 2010 when she got home to find the door on the latch and the children, then five and six, gone.
She recalls: “I knew something was horribly wrong and before long I was hysterical.
“It wasn’t until they arrived in Iraq the next day that he called me to tell me what he’d done.
“I was crying so hard I couldn’t breathe. I felt like part of me had been snatched away. It didn’t seem real.”
Desperate Kerrie says she called police, social services and the British Embassy in Iraq, but no one could help find her children.
Then Arf made contact by phone and told her she could only speak to the children if she sent money – “so I sent him every spare penny I had”.
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