A new source of hope for left behind parents Smith Introduces the Philips-Davenport International Child Abduction Return Act
Washington, Jul 28, 2017
Rep. Chris Smith (R-NJ), author of the Sean and David Goldman International Child Abduction Prevention and Return Act (P.L 113-150), introduced an innovative new bill that will automatically remove tariff benefits for countries that are found to be out of compliance in returning children home—the “Bindu Philips and Devon Davenport International Child Abduction Return Act of 2017.”
“Bindu Philips fought valiantly in India for over eight years for the return of her abducted twin sons, only to be given the incessant delays in India’s courts and little support from the Obama Administration,” said Smith, Chair of the House panel on global human rights. “Just recently, she was finally granted a short visit with her children in India, but the children’s father marred the time with harassment and monitoring, refusing to let the children and mother leave a hotel for 7 days.
“Devon Davenport has had a return order for his daughter, Nadia, from Brazil since 2009. He has won every single one of the 24 appeals against the order—but Brazil still will not enforce its own return order.
“Shockingly, 11 of the 13 countries found to be non-compliant in the annual Goldman Report by the U.S. State Department in the return of abducted American children are still receiving billions of dollars in tariff exemptions under the Generalized System of Preferences. We must cease rewarding countries that aid abductors. When is enough finally enough?”
In 2016, 629 American children were taken from the United States by one parent without the consent of the other, often in direct violation of valid United States court orders, United States criminal law and the Hague Convention on the Civil Aspects of International Child Abduction. The Obama Administration’s refusal to apply sanctions against countries that fail to return abducted children has led to a rate of return of only 16%.
“For years, the U.S. government response to abductions has been an engraved invitation to abductors,” said Smith. “Abductors have an 84% chance of no penalty for ripping their child from home and family in the United States. It is my hope and expectation that this year, the State Department will begin to act more decisively on behalf of American families so that more children come home.”
The new bill amends the Generalized System of Preferences, a trade program designed to promote economic growth in the developing world through duty free entry for some products, so that any country named as non-compliant in the prompted resolutions of abductions would lose trade benefits granted by the United States. The new legislation ensures that the loss of trade preference would be automatic and not dependent on the Executive Branch applying sanctions.
Abducted children in a foreign country are often blocked from any contact with the American parent, losing half of their family and heritage. Such children are also at grave risk of serious emotional and psychological problems. Many such children experience anxiety, eating problems, nightmares, mood swings, aggressive behavior, resentment and fear. Every day the abduction continues only compounds these harms.
The union women and child development ministry had earlier decided against becoming a signatory to the Hague convention on Child Abduction. (Shutterstock Image)
India has agreed to reconsider its refusal to join an international agreement that makes parental child abduction an offence punishable with a jail term.
The women and child development (WCD) ministry has called a meeting of all stakeholders, including officials from home and external affairs ministry, on February 3 to discuss the Hague convention on civil aspects of international child abduction.
“We are considering what view to take on this (the convention) in light of the observations of the law commission, national and international stakeholders and a large number of women who have been affected,” WCD minister Maneka Gandhi told HT.
The ministry, after consulting the external affairs ministry, had last year decided against joining the treaty, which has 90 countries as its members. The Hague convention protects children under the age of 16 from “wrongful removal or retention” by a parent and ensures “their prompt return to the state of their habitual residence”.
There has been a steady rise in parental abductions as more and more Indians go abroad to work or study. Children often bear the brunt of their parents’ marital disputes and are often forced to return to India by one of the quarreling parents. In most cases, it is the mother who returns with the child.
“We went to the law commission to get their view. The commission wants India to ratify the treaty with some conditions,” a ministry official said.
Signing the treaty will ensure that the child is sent back to his/her country of residence with the parent, who would be tried for abduction in the country he or she fled from.
Besides the law commission, there was also pressure from the US, which reported maximum cases of child abduction, mostly by mothers, for India to join the treaty.
But, the government had refused, saying it would amount to victimising women escaping a bad marriage.
India will need a law in place at home to sign the Hague convention. Last year, the ministry was nudged into drafting the civil aspects of international child abduction bill by the Punjab and Haryana high court and law commission. But the bill is yet to get the cabinet nod. Punjab has a sizable population of people living abroad and marital disputes involving NRIs are common.
The law commission has recommended one year in jail for the offending parent. Once approved, the law will allow the “abducted” child to be sent back to the country or city where the child had been living and forcibly taken away from.
In the US and Europe, inter-parental child abduction is a serious offence, punishable with jail. Closer home, Sri Lanka, also a member of 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 she was removed.
Posted at: Nov 6, 2016, 9:51 AM; last updated: Nov 6, 2016, 4:54 PM (IST)
Govt likely to junk inter-parental child abduction Bill
New Delhi, November 6
Despite international pressure, the Centre is likely to junk the Bill on inter-parental child abduction, which deals with child custody issues for NRI couples, and would have paved the way for India’s accession to the Hague Convention.
The Law Commission, though, recently submitted its report to the Law Ministry sticking to its 2007 stand advising the government to accede to the Hague Convention on the Civil Aspect of International Child Abduction (1980).
“We are very clear that we are not signing the Hague Convention. This is a decision collectively arrived at by the Women and Child Development (WCD) Ministry, Ministry of External Affairs (MEA) and the Ministry of Home Affairs (MHA),” said a senior WCD Ministry official.
On June 22, 2016, the WCD Ministry had uploaded on its website a proposal to enact a draft of the Civil Aspects of International Child Abduction Bill, 2016. Subsequently, the draft Bill was placed on the website seeking comments.
The draft Bill was prepared following a reference made by the Punjab and Haryana High Court to the Law Commission of India and the WCD Ministry to examine the issue and consider whether recommendations should be made to enact a suitable law and for signing the Hague Convention.
However, the Bill has since been removed from the Ministry website.
The draft envisaged “prompt return of children wrongfully removed or retained in a 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.”
It also proposed a central authority to discover the whereabouts of a child, to prevent further harm to any such child and to secure the voluntary return of the child to the signatory nation.
WCD Minister Maneka Gandhi has expressed apprehension over acceding to the Convention at several forums, primarily on two grounds — that taking such a decision will not be in the interest of aggrieved women and because the government maintains that there are fewer instances of Indian children being abducted and taken abroad.
At an event last month she had said, “Personally, in the beginning, when I was new, I thought we should join the Convention because we get protection. But with time and after interacting with women who have been abandoned by their husbands abroad, had their passports snatched from them, been beaten up, and have somehow scraped the money and are in terrible fear, I wonder whether we should join or not.”
The draft Bill also made it clear that a decision under the Hague Convention to return a child would not be final and courts will have the power to deny custody on certain grounds.
These grounds are two-fold — firstly, if the person having the care of the child was not actually exercising the custody rights and secondly, if he/she put the child at a grave risk of physical/psychological harm.
The Law Commission report had an additional exception to Hague Convention: “The person who is allegedly involved in wrongful removal or retention, was fleeing from any incidence of domestic violence.”
It also recommended a jail term of one year for any parent or family member found guilty of wrongfully retaining or removing a child from the custody of the other parent.
Legal experts say that while the Hague Convention does have safeguards for women, India can also have a domestic law with stronger protection and then accede to the Convention.
“The Convention is to protect the interest of children. It is not for protecting the interest of the women. However, Article 13 of the Hague Convention states circumstances under which the child can’t be ordered to be returned. Additionally, according to the draft prepared by the WCD Ministry, the central authority can decide whether to accept or not an application demanding that a child be returned.”
However, the draft bill also then specifies exceptions under which a child can’t be returned. So, there is a three-tier protection available to women,” according to Anil Malhotra, who was the amicus curiae when the Punjab and Haryana High Court gave its recommendations on the matter.
“Not signing the Convention is not a good idea. This is like going backwards. If you make safeguards, checks and balances, you should sign the Convention and become a part of a civilised order whereby free movement of children is allowed,” Malhotra said.
There is immense international pressure on India, especially from the US and the UK, to accede to the Convention.
Susan S Jacobs, special adviser on children’s issues, the US State Department, had met WCD Minister Gandhi on September 15. There are at least 80 cases where an Indian parent has removed the child from the US and brought them to India.
The Hague Convention, signed by 94 countries, provides for a mechanism to return a child internationally abducted by a parent from one member country to another. —PTI
By Divya Talwar and Catrin NyeBBC Asian Network & Victoria Derbyshire programme
22 April 2015
The number of British children abducted by their parents and taken abroad has risen dramatically. There’s a huge emotional cost for all involved.
One day, Ami asked her parents to buy flights to India for her and her son, Anish. With that she became an international child abductor.
Ami doesn’t accept this title but says she was aware she was breaking the law. “I knew there would be consequences,” she says, hesitantly. “But what the consequences would be, I did not know.”
Ami is one of a growing number of parents who have abducted their own child by taking them overseas.
UK cases of international child abduction and custody battles have increased dramatically. According to figures obtained under the Freedom of Information Act, there were 477 recorded cases in 2014 – more than double the 2005 figure of 226.
The charity Reunite International thinks the actual figure is even higher – its helpline took 17,000 calls in 2014.
More problematic is the increase in abduction to countries not signed up to the Hague convention – an international agreement on the quick return of children. It means there is little UK authorities can do. Pakistan and India were the most common non-Hague destinations, followed by Somalia, Nigeria and Egypt.
More relationship break-ups, ease of travel and an increase in cross-border relationships are the main reasons cited for the rise. Trying to get them back isn’t easy.
It’s been a long wait to meet Ami, 32, and three-year-old Anish (their names have been changed because she doesn’t want her ex-husband to know she’s speaking to us).
Before we get to her house in the suburbs of Bangalore we’ve been speaking over email and the phone for more than a year, building trust so that Ami was willing to tell us why she abducted her own son two years ago.
We meet at the small house Ami and Anish now share with Ami’s parents. Her mother gets emotional as Ami recounts what happened to her. She had married a British Indian man, who she met on an online Asian matrimonial site. Ami says initially he seemed like a perfect match, she moved to the UK to live with him and got pregnant quicker than expected.
But Ami says her husband became controlling and would isolate her. He wouldn’t talk to her and wouldn’t let her talk to her family.
“I would call my parents and my mum would be crying. She would be asking me, ‘How are you? We haven’t heard from you. And we call your husband – he says you’re not available.'”
Their relationship fell apart. Ami’s husband said he wanted a divorce and she says she feared he would try and take her child away. In the end Ami left the house leaving in a note saying she was going to stay with friends. But after a few weeks, far from home, she says she ran out of people who could help.
“I had nowhere else to go,” says Ami. She says all she could think about was finding a place for her and her son to live together.
“I thought, I cannot go back to my property with my husband. I would end up losing my child. The only place I could see was my parents’ home. I had nowhere else to go. I exhausted all my energy, all my willpower, my confidence. I was completely broken.”
Now Ami is stuck. She doesn’t want to come back to the UK and so is trying to get custody of Anish through the Indian courts. Her ex-husband knows where she is – she has to report to court in Bangalore every two weeks and there is an order telling her to return to the UK.
In cases like this it’s not always obvious who is to blame – many details are only known by the two people involved in the relationship – but in the end, it’s the children who suffer the most.
Safraz Khan knows this only too well. His daughter Aamina was kidnapped by her mother four years ago. He has travelled to Pakistan five times to look for his daughter because there are records of her and her mother entering the country. But he still has no idea where she is.
He says he feels totally helpless. All he has is a court order demanding Aamina’s mother and her family members bring her back or provide information. He says the courts and the police expect him as the parent to go to Pakistan, find his child and then let them know.”
When we meet him at his house in South London he takes us up to her bedroom where her school uniform is still laid out on the bed, alongside teddies and schoolwork – just as they were the day she went missing.
It’s something of a shrine to his daughter, awaiting the day she comes home that Safraz so desperately hopes will come. “When she does I want her to know I’ve never stopped thinking about her.”
The strain this is putting on Safraz is plain. “The loss that I’m facing is like a bereavement. I don’t have a grave – God forbid – but I don’t have anything. In four years I’ve heard nothing, nothing.”
Safraz is left waiting, worried his daughter will forget who is. He has re-married and had two more children but says it’s harder to bond with them because of the loss of Aamina.
But he feels as a father he’s not got the sympathy a mum may have got in the same situation. There is a perception that it’s largely fathers who abduct their own children, but according to Reunite 70% of parents who carry out abductions are mothers.
In some cases these children do come home – but the experience leaves a mark. We noticed the CCTV as soon as we arrived at the home of Mohammed Sheikh in Leicester, mostly because the same cameras were at Safraz’s house. Mohammed is another father whose child had been abducted.
Inside, his 11-year-old son Rameez plays on his computer and his dad delivers him a milkshake and breakfast as he competes with a friend on Call of Duty. Mohammad dotes on his son. He lives in constant fear of him being taken away again.
“The moment his mum arrives to pick him up or drop him off I’m watching on the cameras. Every time he’s with her I worry and I always will.”
Rameez was kidnapped by his mother, Mohammed’s ex-wife, and taken to the United Arab Emirates when he was five.
Because the country has not signed up to the Hague convention there was no system in place to locate Rameez and get him back. Sitting at the kitchen table, piles of court documents in front of him, Mohammad explains to how he started his own search.
“I used any means possible. I sent an email to his mum and there’s a way of tracing an email, it’s not illegal, so that’s what I did. I got an IP address for somewhere in Sharjah in the UAE so I contacted my cousin in Dubai. He went over, located them and followed them home.”
Mohammed now has full custody of his son, but the boy still sees his mother. Mohammed says he doesn’t want Rameez to ever resent him for keeping him away from her so they have limited contact. But Rameez is scared of going on trips with her in case she takes him away again – he takes a friend if they do “because she can’t take us both”.
And Ami knows she’ll have to explain where Anish’s father is one day. “Right now he doesn’t ask me anything about this,” she explains just before we leave. ‘But eventually he will and I have to be prepared to face it.”
It has been reported today that a young boy, who shares my son’s age, has been returned from Japan to Germany. The report about it in the Japan Times can be read here.
It is being heralded as the first return of an abducted child from Japan thanks to the Hague Convention, which came into force in Japan on 1 April this year. To so say however is not quite right as the return came about, in the end, by agreement. The abductor, a Japanese mother, when faced with Hague proceedings brought for the German father, agreed that the child had to go back. She caved in and took the boy back herself. That, in itself, is perhaps unsurprising as the child’s country of habitual residence was clearly Germany. What is surprising is how, given this, and given that the abduction was a post-Hague case, the mother thought that she could get away with it at all. Perhaps she was counting on the father not doing anything about it or, if he did, the Japanese courts not doing anything about it. In this case, the outcome was certainly one that the Hague Convention exists to deliver. For the father and child involved, it is gratifying that the process appears to have been fairly swift as well.
That said, what is not known for sure is what the attitude of the Japanese courts, notoriously hostile to foreign spouses, would have been to this had these proceedings not settled and had a Japanese judge had to adjudicate on the dispute. That will be the real test of the system and it remains to be seen whether Japan will properly discharge its international obligations when a contested case comes before the courts as it is bound to before long.
The boy was removed from Germany in June 2014 and returned there in mid-October: news of these matters tends only to seep out some weeks later. The requested return occurred in August. Apart from the Japan Times report referred to at the beginning, there are at the time of writing further reports, along similar lines, in the Mainichi Daily News (Japan), Z News (India), the Daily Times (Pakistan) and The Western Australian.