01 October 2019

Vanished without a trace – Managing non-Hague cases


Sharanjit Kaur
Partner | Singapore

It would be a parent’s worst nightmare to find out that their child has been whisked away to another country. In many instances, this is not the act of a stranger, but by a spouse or ex-spouse during or after divorce proceedings. While the thought of a parent abducting his or her own child to another country may not seem terrifying to some, the forceful and unexpected relocation of one’s child, and the constant fretting of the parent left behind are unnecessary causes of stress.

Cross-border child abduction is when a child has been wrongfully removed or retained by one parent, without the consent of the other parent, to a different jurisdiction.

The Hague Convention

In 1980, the United Nations introduced the Hague Convention on the Civil Aspects of International Child Abduction, otherwise known simply as the Hague Convention. The Convention serves as a multilateral treaty to ensure children abducted to another country are returned to their rightful parent or guardian.

When a country is a signatory to the Convention, domestic laws will be implemented, in line with the country’s obligations under the Hague Convention. In the case of Singapore, this would be the International Child Abduction Act (ICAA).

Cross-border child abductions

In the event of cross-border child abduction, a parent would hope that they can rely on the Hague Convention to recover their child. However, as of July 2019, only 101 nations have ratified the Convention.

Increased interconnectivity and ease of travel have contributed to a steady rise in the number of international families. The increase in migration has, however, brought with it a new set of family disputes and problems that may arise when marriages break down.

Should tensions run high, one may feel alone and trapped in the new country, and desperate to return home where their support network is located. In extreme cases, fuelled by the fear of losing the child forever, he or she may thus decide to pack up and leave with children in tow, without consent from his or her other half.

Return of the child from non-signatory countries

Should the country the child is brought to not be a signatory to the Hague Convention, recovering the child could prove more challenging. Parents who abduct their children thus take refuge in these countries, enticed by the possibility of cutting off any recourse the other parent may have.

Although seeking the child’s return from a country that is not a signatory to the Hague Convention might seem like a rather tedious and tumultuous process, not all hope is lost. Despite not being a signatory to the Convention due to their reservations to the provisions laid out, many countries like India still prioritise the welfare and rights of children and have included measures to tackle cross-border child abduction in their own laws.

A closer look at India as a non signatory

India is not a signatory to the Hague Convention, citing reservations that it may lead to further harassment of women escaping marital discord or domestic violence. Nevertheless, the Indian Constitution addresses cross-border child abduction cases as custody cases, implementing certain procedures to help parents whose children have been abducted to India.

Under Article 226 of the Indian Constitution, parties can petition to the State High Court to issue a writ of Habeas Corpus (a court ordering summoning both the abducting parent and child) against the abducting parent. The definition of abduction used in the Indian Constitution is also similar to that defined under the Hague Convention. Furthermore, changes in the interpretation of the Hindu Minority and Guardianship Act hint that India is slowly progressing towards implementing measures to ensure the swift return of abducted children across borders – reflecting the overarching aim of the Hague Convention.

Courts in India have also repeatedly stressed that the welfare of the child should be of paramount concern when dealing with child abduction cases. This has been expounded in prior judgements, such as in a case judged by the High Court of Delhi. The wife had brought her children from the US to India and informed her husband that she had no intention of returning. Despite a judgment obtained by the husband from the US courts for the sole, physical and legal custody of the children, and the filing of a writ of Habeas Corpus in the High Court of Delhi for the wife to return the children, the High Court of Delhi held that the paramount welfare of the children would lie in shared parenting in the US, and ordered the return of the children. Such a case demonstrates that, despite not being a signatory, there are provisions available to parents hoping for the safe return of their children.

A closer look at Singapore as a signatory

If residing in a signatory state, Singapore’s ICAA allows for a parent to apply to the Singapore Court for a child, who has been wrongly removed or retained in Singapore, to be returned to them. Similar laws would have been put in place in other signatory states to ensure the safe return of a child between two signatories.

However, if the child was removed from a non-signatory state to Singapore, the ICAA cannot be applied for the return of the child. In such an instance, the Guardianship of Infants Act ensures the return of the child to the left behind parent, with the Singapore Court having determined that it is in the child’s best interest to do so. Following which, the courts in non-Hague countries may give effect to the order for the child’s return to Singapore, having held the child’s welfare as paramount, as illustrated in the aforementioned Court of Delhi case.

Ensuring the safe return of the child

The ideal scenario would see all countries signing the Hague Convention and adhering to the provisions laid out within to ensure the safe return of abducted children, but any multilateral treaty is sure to be met with reservations from member states.

However, a parent need not immediately despair when their child has been forcefully relocated to a non-signatory state. As demonstrated by the Court of Delhi, even if a state has not signed the Hague Convention, countries have taken steps to not only tackle the issue of cross-border child abduction but have done so with the child’s welfare held as paramount.

Sharanjit Kaur Partner, Withers KhattarWong* | Singapore

Category: Article