Moving Abroad with a Child: What are the Gaps in the Law on Relocation?
This Blog is written by Anusuya Ghosh from KIIT School of Law, Odisha. Edited by Oshin Suryawanshi.
It can allow us to learn about foreign cultures while also exposing us to a variety of fresh experiences and challenges.
Families considering relocating overseas, whether returning home or migrating to another country, should be informed of the legal implications of their decision, both in terms of planning and potential consequences after they arrive at their destination. Child relocation encompasses much more than basic movement. For many families and their children, moving overseas has become a common experience. There are a variety of reasons why families might want to relocate abroad: new employment opportunities, accessibility to other family members, or simply a more relaxed way of life. For both parents and children, relocating may be an exciting moment.
When a parent wishes to transfer to a foreign nation with his or her child, both the parent and the youngster should be aware of the legal situation and formalities. Divorce or separation are the most common reasons for relocating overseas with a child. A parent may relocate with their children for a variety of reasons, including pursuing a career opportunity overseas, returning home with the child from a nation where they had been living with the other parent, starting a new relationship, and so on. As a result, it’s important to understand the legal situation at the planned new destination.
SIGNIFICANCE OF THIS DEVELOPMENT
The concept of relocation can be seen as the right of one parent to take the child from the jurisdiction of the other parent. In India, the law governing relocation does not fall under the category of family law. In India, there is no legislation governing the foreign or domestic movement of a child. The right of one parent to remove their child from the jurisdiction of the other parent is known as relocation. The law governing relocation in India does not fall under the umbrella of family law. There is no legislation in India that governs a child’s international or domestic travel.
According to Section 26 of the Guardian and Wards Act, a guardian appointed by the court cannot take the child outside the jurisdiction’s bounds without the court’s permission, except for certain purposes such as:
The court-appointed guardian is known as a “collector” (the person looking after the property of the child or minor). The term “collector” refers to the chief officer in charge of a district’s tax management, as well as any individual designated by the state government to serve as a collector in any local area or for any class of people. The guardian is named in a will or other legal document.
The following are the fundamental principles that are adhered to:
• When the children are under the age of five, it is common for a mother to be granted custody.
• The minor’s age, religion, and sex are also essential factors to consider.
• The mother’s unfounded accusation is dismissed, and the proposed guardian’s character and capacity are assessed.
• When there are multiple children, courts want to keep them together.
• The intellectual, material, physical, moral, comfort, and spiritual well-being of the kid are all taken into account.
• Older male children are usually given to fathers, whereas older female children are frequently given to moms.
• However, this is not a hard and fast rule, and the decision must be made with the child’s best interests in mind.
• When a child is over the age of nine, his or her opinion on the parent’s choice should be taken into account, since the youngster is assumed to have attained reason in decision-making and sufficient comprehension.
• Alternative Dispute Resolution (ADR) procedures, including mediation and counselling, are the best ways to address these types of problems. They are particularly efficient in resolving family conflicts since they are not time-consuming or laborious, but rather cost-effective.
Elizabeth Dinshaw v. Arvand M Dinshaw & Anr. (1987):
The Supreme Court of India ruled in this case that when the issue of custody of a minor child arises, it should be decided exclusively and largely on the criterion of the child’s best interest and welfare, rather than on the legal rights of the parties.
Jitender Arora v. Sukriti Arora (2017):
This case stems from a custody battle between a fifteen-year-old girl who was taken to India by her father and her mother, who filed a writ of habeas corpus in the Supreme Court. The Supreme Court evaluated the welfare of the kid and questioned the youngster about her desires before dismissing the mother’s plea for custody of the daughter. It was decided that the girl was mature enough to make her own decision, and she voiced her desire to be with her father firmly and without reservation.
In India, there are no rules or guidelines that must be followed in cases of child relocation, child removal from one parent’s jurisdiction by another parent, or difficulties relating to international child abduction.
The laws governing precedent-based, and the sole criterion used to make decisions is the child’s best interests and security. India, as a non-signatory to any convention, is free to make any decision it wants, and it is unlikely to sign these conventions because doing so may harm the interests of women who have escaped abusive marriages.
The Ministry of Women and Child Development, on the other hand, has chosen to establish a domestic law to deal with the civil aspects of international kidnapping.
The Ministry of Justice produced a bill in 2016 titled Civil Aspects of International Child Abduction in response to the Law Commission’s 218th Report on the necessity to ratify the HCCH Convention. The 2016 Bill complied with the HCCH conventions in general and mirrored their provisions.
In India, there is still no comprehensive legislation, but the ministry has established a mediation unit to address these types of conflicts.
Section 13(1)(b) mandates that a parent seeking to remove a child from the jurisdiction permanently do so with the permission of the court.
Previously, § 1 of the Guardian of Minors Act 1971 stated that the minor’s protection was the most important concern.
Parents’ rights and obligations, as well as interactions between parents and children, are governed by general (secular) and party-specific laws in India. One of these deeds is: 1890 Guardian and Ward Act. The Guardian and Wards Act of 1890 (GWA) is a general statute that governs the legal status of a child’s upbringing. It is a secular Act applicable to all persons irrespective of their cultural faith.
A “guardian” is responsible for the raising of a minor child/ward under this Act.
A minor is a person under 18 years of age. Under the GWA, “minor” is defined as a person who, under the provisions of the Indian Majority Act 1875 has not attained majority, that is, 18 years of age. In the event of a disagreement between the parents, one parent may file an application under Section 7 for declaration as “guardian.” The courts use this power to assess the child’s welfare and in compliance with the terms of Section 17 of the GWA. In India, the GWA and other family-related personal laws provide a redressal mechanism.