This Interview has been published by Pragya Chandni and The SuperLawyer Team
Could you please share with us the story of how you chose to pursue a career in law, especially focusing on international family law and child custody matters between India and the U.S.?
Being a lawyer is tough.
Being a young lawyer is tougher.
But being a first-generation, young lawyer – well, that’s just pure chaos!
I received my law degree in India in 2012, and it has been quite the journey from a fresh law graduate to an international family law practitioner. From being a law clerk at the Punjab and Haryana High Court, to a litigation associate in New Delhi, to an LL.M. candidate in New Hampshire, to a duly licensed New York attorney, to a wife, and, most importantly, to a mother – I have had the good fortune to evolve at every step.
My initial connection to this area of law and my continued interest in this field is a sum total of several factors. I stumbled upon this particular practice area by chance when I started working for one of the most renowned international family law practitioners in the world, I am based in one of the most diverse cities in the world with a high number of internationally born population, I come from a country that has the world’s biggest diaspora, I am a dual-qualified attorney, and I am a young immigrant mother in an international marriage. In essence, I can relate to the challenges faced by international families, not just as their attorney but also on a much more personal level.
As someone deeply involved in international family law, could you shed light on what are some of the most significant challenges that your clients face after the breakdown of an international marriage/relationship, particularly concerning issues like International Parental Child Abduction (IPCA)?
I think the biggest challenge for a person stuck in the middle of an international divorce or custody dispute is to secure effective and timely legal advice. It is challenging enough to figure out the laws and the public policy of one jurisdiction but throw in a whole other continent, and it’s a different ball game altogether. From the financial aspects of a divorce to child custody laws, there are different advantages (or disadvantages) that come with a particular jurisdiction. This often ends up in parties initiating multiple parallel proceedings against each other and then ensuing a judicial tug-of-war, especially in child custody cases. Thus, one wrong step in an international family law dispute can have an everlasting impact on a person’s custodial rights over his or her children, financial rights upon a divorce, immigration status, professional goals, and overall life.
International Parental Child Abduction (IPCA) is an example of one of the many challenges which a parent might face when an international marriage/relationship breaks down. IPCA is the removal or retention of a child by one parent, outside the child’s country of habitual residence, in breach of the other parent’s custody rights (often done without the knowledge or consent of the other parent). It is a federal crime in the U.S.
Could you provide our listeners with an overview of the Hague Abduction Convention and its significance in resolving cases of international child abduction?
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Hague Convention” or the “Convention”) is an international treaty that aims to prevent IPCA and protect children from the harmful effects of such wrongful removal or retention. The Convention establishes a legal framework (a “shared civil remedy”) among partner countries for the prompt return of internationally abducted children to their country of habitual residence. A court functioning under the Convention does not settle a child custody dispute. It merely decides whether or not a child should be returned to the country of his habitual residence, so that the custody dispute can then be settled by the courts in that country.
Keep in mind that just because a country has signed the Convention does not mean that an internationally abducted child would have to be ordered to be returned under all circumstances. The Convention provides six defenses when a court may deny the return of an abducted child. These defenses concern a “grave risk of harm” to the child upon return, the child’s age and opinion, the one-year-and-settled rule, violation of fundamental principles of human rights, consent of the left-behind parent, and the fact that the left-behind parent was not actually exercising rights of custody at the time of wrongful removal.
More than one hundred countries have signed the Hague Convention. India is not one of those countries.
You’ve been actively advocating for India to sign the Hague Abduction Convention. Can you explain why you believe this is crucial and the potential impact it could have on resolving international parental child abduction cases involving India?
I will keep it as short as possible!
India’s need to accede to the Convention has been underscored by various concerned authorities in the past, including the Hon’ble Indian Law Commission. However, in April 2018, India refused to sign the Hague Convention. It was primarily because the Indian government felt that signing the Convention would deprive the Indian courts of the discretion to refuse the return of a child in a Hague case where such a return is not in the “best interest of the child” (BIOC). The BIOC is the basic principle that all Indian courts apply in all disputes concerning a child’s custody (or even return). The Hague Convention, on the contrary, implies that a court that is merely hearing a return petition should not apply the BIOC principle because it is for the courts in the country where the return is sought to make a rights-of-custody determination under that principle. The second reason for the Indian government to decide against the Convention was that it had concerns about gendered domestic violence against mothers of Indian origin in a foreign country.
At that time the Indian government also introduced a Bill titled the Protection of Children (Inter-Country Removal and Retention) Bill, 2018, to tackle the menace of IPCA. Additionally, a “Proposed Authority” was ordered to be set up to handle inter-country parental child removal disputes, and a “Mediation Cell” was established in 2018 to mediate international custody disputes. It has been almost six years since the Proposed Bill was introduced, but it has since been tabled. The Proposed Authority is yet to come into existence, and the Mediation Cell has not resolved any abduction cases. Not to mention that even if the Proposed Bill had become a law, it would have still lacked the required international backing or the proverbial teeth. However, even without factoring in the issues concerning the Proposed Bill or the Proposed Authority, there still are several independent reasons why the Indian government should consider signing the Convention.
Firstly, the concerns of the Indian government regarding the BIOC appear to be unfounded because the BIOC is almost a universally applicable standard in child custody disputes. Thus, no matter which court gets to decide the custody dispute, the applicable standard will always be BIOC.
Secondly, while India’s concerns about gendered domestic violence are not unfounded, it is not an issue specific to women of Indian origin. It is a sensitive and grave issue worldwide, irrespective of the gender or nationality of the victim. Most Hague countries have effective mechanisms in place against domestic violence. This help is available irrespective of the victim’s race, gender, nationality, or immigration status. For instance, all the U.S. States have such programs and helplines in place which offer assistance to domestic violence victims. Such services are usually free of cost, and attempts are even made to provide such assistance in the language that the victim speaks. A victim of domestic violence can initiate a police complaint against the preparator, secure a restraining order, file for a divorce, and initiate a custody case before the concerned foreign court.
Thirdly, instead of causing an unauthorized removal of the child from another country to India and facing criminal charges, the taking parent has the option to seek the permission of the foreign court to relocate internationally with her children by initiating an international child relocation petition.
Fourthly, authoritative statistics confirm that India has the world’s biggest diaspora, and all the top countries to which Indians move are Hague signatories, barring the UAE.
Fifthly, India’s current system of handling a return petition through the writ of habeas corpus and the governing factors in such a writ are strikingly similar to the defenses in a Hague case (as in the situations where the Hague court may not order the return of the child to the country of his habitual residence). Some of these factors/defenses include the age and opinion of the child, the time spent by the child in India since the time of the abduction, the grave risk of harm to the child (or the taking-parent), and the association of the left-behind parent with the child.
Fifthly, if the taking parent is a mother who decides (in an impulsive moment) to return to India with the child, she may then be prevented, forever, from claiming what is rightfully hers upon divorce in a foreign country because her husband has not only initiated a criminal complaint against her but there is an international arrest warrant out against her. Under such circumstances, the Indian wife’s right to be maintained upon divorce will be hard to enforce through an Indian order, given that the husband is living in a foreign country. On the other hand, the wife would likely not get what she deserves from the foreign court because she willingly flouted a serious law against IPCA and possibly defied a foreign court’s return-of-the-child order.
Not to mention the burden it puts on an already overburdened Indian judiciary. Once the taking-parent is in India, there is no way to predict what they might do/assert in order to be able to retain the child in India. From filing made-up domestic violence charges to initiating false cases under the infamous Section 498-A of the Indian Penal Code in some cases to filing for restitution of conjugal rights, both sides take whatever steps they feel are necessary to exert pressure on the other side.
Furthermore, in today’s rapidly changing economic climate and given India’s bid to be seen as a key player in the current global settings, it does not bode well for India’s international image when the Indian legal system is referred to as “less developed” or as a “safe haven” for child abductors.
In your experience, what are the usual legal avenues available for a left-behind parent seeking the return of their child from India, considering India’s current stance as a non-signatory to the Hague Convention?
As I mentioned in my previous answer, the usual way to secure an internationally abducted child’s return from India is to file a writ of habeas corpus before the concerned Indian High Court. However, it is an extraordinary writ and is usually available only under exceptional circumstances. Moreover, from the voluminous (and highly divergent) Indian case law, it is hard to deduce a set of favorable factors that might cause the Indian High Courts to order the return of a child in such cases. The uncertainty of the left-behind parent is not as to the outcome alone; this uncertainty also remains with respect to the correct procedure to follow. Whether to approach the foreign court for an interim custody/return order or whether to approach the Indian writ court directly – there is no clear answer. On the one hand, the existence of a foreign custody order is considered as one of the several factors that Indian courts consider while ordering the return of the child, on the other hand, it seems necessary for the left-behind parent to secure an emergency custody order from the child’s country of habitual residence in the hope to prevent the taking parent from initiating a regular custody case in India based on the concept of ‘ordinary residence’ of the child (and this is just one such example).
Understandably, a left-behind parent (especially one of Indian origin) might feel cheated by the system because of the lack of proper recourse.
Given your extensive experience and expertise, what advice would you offer to fresh graduates aspiring to specialize in international family law or pursue a career in law with a focus on cross-border issues?
Dear fresh graduates, I’d like to start with a bit of general advice. Don’t be afraid to make mistakes (as long as you learn from them). And please don’t be afraid to share. Whether it is your special knowledge or skills, your initial insecurities regarding this profession, or even your occasional failures- whatever it is- learn to share.
When one is doing relatively better in their career, it is easy to set a certain “effortless” narrative for their story. However, it is neither fair nor honest if they don’t acknowledge the years of struggle they endured to be wherever they are today. I had my share of struggles during my initial years, and sharing those struggles with people close to me only made things better. By sharing your struggles with others, you are telling the other people (who are also struggling) that they are not alone and that it gets better. This is generally true for any profession, but it is spot on for fresh-out-of-law-school lawyers. There is a learning curve to this profession, and there is no one defined way to master it. So truly, what matters is your journey (and detours), not the destination. Don’t be afraid to network and reach out to other people if you have doubts (in fact, my US journey started by reaching out to a wonderful attorney who was featured by Superlawyers back then).
For any kind of international law practice, you should be prepared to learn (from scratch) the legal system of another country (sometimes you may even be required to unlearn the things you did in your home country); you will be required to take the Bar exam once again (easier said than done); you must learn to network, and lastly, as with everything in life, luck is a huge factor (especially with immigration-related issues).
It is possible when you shift gears in your profession, that you will find that your carefully honed skills from your previous position do not necessarily translate into your next position. However, they are never rendered useless. It is entirely up to you to collate your bundle of skills and offer something unique to the world.
Finally, considering your advocacy work and professional journey, what message or advice would you like to share with our listeners, especially those who might be facing international legal challenges or navigating the complexities of international family law?
Get the right attorney ASAP!
The first step in many international family law cases is the most important one, and one must not mess it up by receiving incorrect (or impractical) advice.
Get in touch with Stutee Nag-
