Introduction
International Parental Child Abduction (IPCA) is a pressing global issue that disrupts families, leaving left-behind parents in legal limbo and children in precarious situations. It refers to the unlawful removal or retention of a child by one parent across international borders without the consent of the other, often in defiance of an existing custody order. The increase in globalization, cross-border marriages, and multicultural families has led to a rise in such abduction cases, creating a serious legal and humanitarian issue. These acts infringe upon the custodial rights of the left-behind parent while jeopardizing the child's stability, education, and psychological welfare. It often leads to prolonged legal battles as well as cause diplomatic disputes between countries.
To address this issue, the Hague Convention on Civil Aspects on International Child Abduction, 19801 ("Hague Convention") was introduced to coordinate responses among participating nations and to ensure the swift return of abducted children to their country of habitual residence. The Hague Convention, adopted under the Hague Conference on Private International Law, establishes a cooperative legal framework to facilitate the prompt return of children abducted across borders by a parent from one member country to another and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. As of 2025, 1032 countries have signed the Hague Convention, but its effectiveness remains limited due to the existence of non-signatory nations, leading to inconsistent legal procedures for handling international parental child abduction cases.
Global Impact and Statistics
While statistics from Non-Contracting States remain scarce—likely indicating a much higher number—the data from Contracting States help illustrate the magnitude of the problem and its impact globally.
A Report issued in October 2023 by the Hague Conference on Private International Law (HCCH), titled "Global Report – Statistical Study of applications made in 2021 under the 1980 Child Abduction Convention"3 provides insight into the scale of international parental child abduction cases, particularly, numbers of return and access applications made by the left-behind parents, the rate of success and rejections of such applications along with time taken. According to the data collected from 71 Contracting States in the year 2021, a staggering 2,180 applications seeking return of abducted children were filed under the Hague Convention. Comparatively, 2,598 return applications were filed in 2019, with numbers dipping to 2,118 and 2,180 in 2020 and 2021 due to the COVID-19 pandemic but surging to 2,349 applications in 2022. For context, the number of return applications received by Contracting States has risen significantly over the years:
- 2,270 return applications in 2015 (72 states)
- 1,961 return applications in 2008 (54 states)
- 1,259 return applications in 2003 (45 states)
- 954 return applications in 1999 (30 states)
It is also recorded that most return applications were received by the USA, followed by England and Wales receiving the second highest number of applications.
Alarmingly, 75% of abductions were carried out by mothers, marking an upward trend from previous years. The average time for resolution has now increased to 207 days, intensifying the distress faced by left-behind parents.
Furthermore, 399 applications seeking access to children were made in 2021, 78% of which were made by fathers. At least 484 children were involved in the 399 access applications received in 2021, making an average of 1.2 children per application. Pertinently, access applications took an average of 301 days to reach a final outcome, which is significantly longer than return applications.
While the mechanisms under the Hague Convention have been relatively effective in responding to problems associated with international child abductions in the USA, UK, some nations in Europe and other Contracting States, in non-signatory countries such as India, repatriation of abducted children is sometimes fraught with legal and procedural hurdles. For foreign parents and Non-Resident Indians (NRIs), the challenge is particularly acute. Many NRIs who marry and settle abroad find themselves embroiled in protracted legal battles when their spouse unilaterally takes their child to India. At the same time, some abducting parents may have fled abusive relationships or hostile environments to protect themselves and their children. Thus, the Indian Courts have been trying to strike a balanced approach that weighs both parental rights and child welfare.
India's Position in the Global Context
India's approach to international parental child abduction presents unique legal challenges, drawing both scrutiny and debate. While some critics argue that India's legal framework allows parental child abduction4, others emphasize the complexities involved in such cases, particularly where genuine concerns of the abducting parent exist. India has not acceded to the Hague Convention on the Civil Aspects of International Child Abduction, nor does it have dedicated legislation addressing inter-country parental child abduction. Consequently, such disputes are adjudicated primarily as custody disputes under the Guardians and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 19565. However, a foreign national or an NRI can only avail a remedy under the Hindu Minority and Guardianship Act, 1956, which has extra-territorial jurisdiction6, and the constitutional remedy of the writ of habeas corpus under Article 32 and 226 of the Indian Constitution.7 The remedy under the Hindu Minority and Guardianship Act, 1956 can be availed only by Hindus in India and Hindus domiciled in the territories to which the said Act extends who are outside the said territories8. Due to this, the personal jurisdiction of the said Act is not extended to several individuals and therefore, in practice, the Constitutional Courts in India frequently exercise their extraordinary writ jurisdiction to address such disputes when approached by left-behind parents.
Despite the absence of a formal treaty-based mechanism, Indian courts have demonstrated a case-sensitive and proactive approach in handling international parental child abduction matters. In several instances, courts have directed the repatriation of children to their country of habitual residence, carefully considering the concerns of the left-behind parent while prioritizing the child's best interests. The welfare of the child principle remains the cornerstone of such judicial determinations in India. In these matters, Courts have consistently held that the child's best interests must be the paramount consideration in international custody issues. However, the absence of uniform statutory parameters for determining child welfare has sometimes resulted in jurisprudential inconsistencies, with different courts applying varying standards.9 While Indian courts assume jurisdiction on the grounds of child welfare, critics argue that courts in the child's country of habitual residence are equally bound by the same principle, and jurisdictional conflicts can lead to prolonged legal battles.10
Legislative Developments
India has witnessed significant legislative discussions on the regulation of international child abduction. The Indian Government introduced the Indian Civil Aspects of International Child Abduction Bill in 2007, though it was never publicly circulated. In 2009, the Law Commission of India, in its 218th Report11 titled "Need to Accede to the Hague Convention on the Child Aspects of International Child Abduction 1980"12, strongly recommended India's accession to the Hague Convention, citing inconsistencies in custody-related applications involving inter-country child abduction which caused considerable uncertainty to litigants.
To address these concerns, the Civil Aspects of International Child Abduction Bill, 2016 ("2016 Bill"), was drafted in alignment with the Hague Convention. The main objectives of the 2016 Bill were to secure the prompt return of children wrongfully removed or retained in any contracting state, and to ensure that rights of custody and of access under the law of one contracting state are respected in other contracting states. The 2016 Bill proposed establishing a Central Authority to facilitate the return of wrongfully removed children through judicial proceedings in the High Court.13 The High Court, before ordering a child's return, could seek input from the relevant authorities of the child's habitual residence to determine whether the removal or retention was wrongful.14
The Law Commission revisited the issue in its 263rd Report, analyzing the provisions of the 2016 Bill and reinforcing the need for India to accede to the Hague Convention. However, despite multiple reports and legislative proposals, in April 2018, a committee led by Justice Rajesh Bindal recommended that India should not sign the Hague Convention. Instead, the Committee proposed creating an "Inter-Country Parental Child Removal Disputes Resolution Authority" to serve as a "one-window solution" for such disputes. The Committee also introduced a draft legislation, the Protection of Children (Inter-Country Removal and Retention) Bill, 2018, emphasizing mediation as a preferred mode of dispute resolution in these cases.
India's concerns regarding accession
Many Indian authorities, particularly, the Ministry of Women and Child Development, fear that acceding to the Hague Convention may disproportionately affect such vulnerable mothers who return to India seeking safety and may not always align with the child's best interests, particularly in cases involving domestic violence or children having stayed in India for extended periods posing cultural reintegration challenges.
It has been also argued that if the parent returning to the foreign jurisdiction faces risks of abuse, their return may not be feasible unless protective measures are in place. When young children are involved, separating them from the returning parent may not always be in their best interest.15
Another reason for India's reluctance to accede to the Hague Convention is the perceived gaps in its framework – whether domestic violence allegations could be considered within the exceptions to return, whether criminal charges could be applied to the abducting parent upon return, and the absence of a safe harbor order for such parents once the child is repatriated to the jurisdiction of habitual residence.16
Challenges faced by Left-Behind Parents in India
The left-behind parent is often constrained to initiate legal proceedings seeking repatriation in India in the country of origin as foreign custody orders are not enforceable in India. This necessitates the left-behind parent to subject himself/herself to Indian jurisdiction and navigate through multiple legal proceedings. In such scenarios, left-behind parents are faced with legal ambiguity, prolonged litigation, exorbitant legal costs and psychological trauma.
During such prolonged legal battles, the abducting parent may alienate the child from the left-behind parent through psychological conditioning. Since in most of these cases, parties are across borders, it may become exceedingly difficult for the left-behind parents to maintain a bond with their child.
Another significant procedural challenge is the absence of stringent entry and exit controls at international airports and border checkpoints in India. While many countries have implemented systems requiring dual-parental consent for a minor's international travel, India's existing framework does not have an equally robust mechanism for verifying and enforcing such requirements.
Such challenges stem from absence of a formal international framework that has also led to increasing criticism from global stakeholders.
Criticism from Foreign Nations and Courts
India has faced mounting criticism from foreign nations over the years, particularly the U.S. Department of State, for its lack of cooperation and failure to comply with international protocols addressing parental child abduction. The most recent report of the U.S. Department of State titled 'Annual Report on International Child Abduction, April 2024'17 highlighted India's ongoing pattern of non-compliance, noting that as of the end of 2023, there were 95 unresolved cases of international parental child abduction from U.S. to India affecting 107 children, with 70 cases remaining unresolved for over four years.
Diplomatic efforts including bilateral dialogues and expert consultations have been made to address these concerns. Bilateral meetings between India and the U.S. in August 2023 emphasized the urgency of establishing a structured framework for addressing the need for regular coordination on international parental child abduction outside the annual U.S.-India Consular Dialogue. In February 2024, U.S. legal experts engaged with Indian judicial authorities to advocate for the adoption of the Hague Convention and procedural reforms. Around the same time, the Assistant Secretary for Consular Affairs raised international parental child abduction as a leading issue during the U.S.-India Consular Dialogue with the Indian Joint Secretary of External Affairs and Joint Secretary of Women and Child Development. Additionally, an interagency roundtable was convened in April 2024 to explore legal and policy solutions, community resources and outreach strategies for assisting families and preventing cases of international parental child abduction.
Balancing Domestic Laws and Hague Convention Principles
Recognizing the multifaceted nature of international parental child abduction and challenges faced by all concerned parties, Indian courts have, till date, sought to balance international legal obligations with the need to protect vulnerable parents and children, particularly in cases involving allegations of domestic violence, abuse, or genuine safety concerns. Indian courts assess each IPCA case on its merits, balancing principles of comity of courts with the paramount consideration of child welfare. Factually, decisions in international parental child abduction cases indicate that there have been occasions both where a child was not returned to a foreign jurisdiction and also where a child was returned. Therefore, the judicial approach remains case-specific, requiring courts to carefully assess individual circumstances to ensure a just outcome—one that neither unfairly punishes the left-behind parent nor disregards the rights and safety of the abducting parent and child.
While India's protective approach towards vulnerable parents is right and reasonable, the absence of clear legislative mechanisms often results in legal uncertainty for both left-behind and abducting parents. Therefore, it is important to consider accession to the Hague Convention with conditions, to balance protecting vulnerable parents with ensuring the rights of left-behind parents and the best interests of the child.
Conclusion
International parental child abduction is not merely a legal dispute but a serious humanitarian crisis with far-reaching consequences. To address this issue, India could consider a balanced approach:
Conditional Accession to the Hague Convention
In India, the safety and wellbeing of the wife who has been a victim of domestic violence is a significant concern. In a scenario when the wife has taken the decision to flee from the foreign country in the wake of severe physical, emotional, financial hardships and violence, a mechanical order to return the child based on the literal interpretation of the law without accounting for the social parameters and completely ignoring the plight of the wife cannot be justified. Therefore, India should make a meaningful accession to the Convention, safeguarding the personal dignity and liberty of women (generally, the abducting parent) must be incorporated.
The case of Japan is in point. At the time of ratifying the Hague Convention, Japan18 specified several conditions intending to protect its women who were victims of domestic violence.19 Following the example of Japan, India could ratify the Hague Convention while incorporating safeguards to protect vulnerable parents, particularly in cases involving domestic violence or financial hardships.
Legislative reforms to strengthen mechanisms
A comprehensive law, factoring in the varied scenarios related to parental child withdrawal, could help address and alleviate concerns about the protection of women and the interests of children. In the absence of such law reforms, the result is uncertainty for the left-behind parents, even for those holding a foreign court custody order made in the place of the child's habitual residence.
Legislative and policy measures to protect women in abusive marital relationships involving NRIs also need to be strengthened. Furthermore, legal provisions for addressing concerns regarding the welfare of the abducting parent, upon the return of the child, of criminal prosecution of the parent in the returned-to country.
State Governments with a high NRI population should attempt to liaison with foreign missions in India and assist the courts to ensure prompt return of children to the country of their habitual residence, even suggested by Law Commission of India in its 218th Report20. The administrative and police authorities in such states should aim to formulate uniform guidelines to assist parents in distress.
Strengthening Entry/Exit Controls
Implementing more robust regulations, including dual-parental consent and judicial oversight for minor's international travel, could also aid in preventing wrongful removals.
Judicial Cooperation and Specialized Tribunals
Establishing fast-track courts or specialized tribunals dedicated to international child custody disputes would ensure timely and effective legal recourse, by providing due consideration of all concerned parties.
Striking a balance between child welfare, parental rights, and international cooperation is key to resolving this complex issue. A nuanced approach, combining accession to the Hague Convention with India-specific safeguards, robust legal frameworks, and diplomatic engagement would be a step toward a more effective and just resolution of international parental child abduction cases.
Footnotes
1 Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 1343 U.N.T.S. 89, https://assets.hcch.net/docs/e86d9f72-dc8d-46f3-b3bf-e102911c8532.pdf
2 Hague Conference on Private International Law, Status Table: Convention on the Civil Aspects of International Child Abduction (1980), https://www.hcch.net/en/instruments/conventions/status-table/?cid=24 (last visited Mar. 10, 2025).
3 Hague Conference on Private International Law, Global Report – Statistical Study of Applications Made in 2021 Under the 1980 Child Abduction Convention (Oct. 2023), https://assets.hcch.net/docs/bf685eaa-91f2-412a-bb19-e39f80df262a.pdf.
4 Sujit Fulari, International Parental Child Abduction: A Reflective Look at Approach Taken by Indian Supreme Court (May 20, 2023).
5 Stellina Jolly, and Sai Ramani Garimella, International Parental Child Abduction and India – Attempting Engagement with the Hague Convention, Vol 19 No 1, Article 3, Australian Journal of Asian Law (August 30, 2018).
6 The Hindu Minority and Guardianship Act, 1956 is a personal law and is not applicable in certain situations. Therefore, generally a writ of habeas corpus under Articles 32 and 226 of the Indian Constitution remains as the only remedy available to left-behind parents.
7 Sai Ramani Garimella, International Parental Child Abduction and the Fragmented Law in India — Time to Accede to the Hague Convention? 17 Macquarie Law Journal 38 (August 2017).
8 Section 1(2), Hindu Minority and Guardianship Act, 1956.
9 A Parashar, Welfare of Child in Family Laws—India and Australia, 1(1) Nalsar Law Review 49, (2003).
10 Stellina Jolly, and Sai Ramani Garimella, International Parental Child Abduction and India – Attempting Engagement with the Hague Convention, Vol 19 No 1, Article 3, Australian Journal of Asian Law (August 30, 2018).
11 Law Commission of India 'Need to Accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980)', Report No 218, March 2009.
12 Ibid.
13 Section 4(1) of the Civil Aspects of International Child Abduction Bill, 2016.
14 Section 7(1) and (2) of the Civil Aspects of International Child Abduction Bill, 2016.
15 Stellina Jolly, and Sai Ramani Garimella, International Parental Child Abduction and India – Attempting Engagement with the Hague Convention, Vol 19 No 1, Article 3, Australian Journal of Asian Law (August 30, 2018).
16 Ibid.
17 U.S. Department of State, 2024 Annual Report on International Child Abduction, April 2024, Pg. 19-20, https://travel.state.gov/content/dam/NEWIPCAAssets/pdfs/2024%20Annual%20Report%20International%20Child%20Abduction.pdf.; U.S. Department of State, Report to Congress on Specific Actions Taken Against Countries Determined to have been Engaged in a Pattern of Noncompliance in Cases of International Child Abductions, 2024, Pg.19-20,https://travel.state.gov/content/dam/NEWIPCAAssets/Report-Non%20complience%20in%20cases%20of%20International%20Child%20Abductions%20(006150).pdf
18 S Yamaguchi and T Lindhorst, Domestic Violence and the Implementation of the Hague Convention on the Civil Aspects of International Child Abduction: Japan and US Policy, 17(4) Journal of International Women's Studies 16 (2016).
19 Stellina Jolly, and Sai Ramani Garimella, International Parental Child Abduction and India – Attempting Engagement with the Hague Convention, Vol 19 No 1, Article 3, Australian Journal of Asian Law (August 30, 2018).
20 Para 5.3E, Law Commission of India 'Need to Accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980)', Report No 218, March 2009.
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