The Removed Child and his Trauma

By Insha Rahman

The protection of children, and their ‘best interests’ has come to acquire immense significance in the recent past.^[1] Propounded by the Convention on the Rights of the Child, 1989[2] along with the Hague Convention, 1980,[3] the ‘best interest’ principle places the child’s needs at the center of any and all possible disputes and forces legal systems to adjudicate matters bearing this object in mind. A part of this approach includes prioritizing the psychological adjustment and well being of the child.^[4] Given the highly sensitive nature of inter parental disputes and the far-reaching consequences they have on a child’s life, there exists a need for a strong legal framework to prevent an exacerbation of an already traumatic experience for a child.

International parental child abduction or removal can be defined as the removal of a child by one parent from one country to another without the approval of the other parent. Child removal, in this context, encompasses an interference with the parental rights or right to contact with the removed child.^[5] ‘Abduction’ under Section 362 of the Indian Penal Code refers to an act compelling or taking away a person by ‘deceitful means’.^[6] Abduction is thus an auxiliary act not punishable in itself, but only punishable per se when accompanied by an intent listed under Section 364 of the IPC.[7]  The provisions of Section 364 of the IPC, do not provide for instances wherein the abductor is one of the parents of the children. This exclusion largely occurs owing to the fact that the intent behind the act of abduction is the fear of losing custody, or overwhelming affection.

In this article, we aim to examine the issue of international parental child removal, discuss the rules and regulations, or lack thereof, governing the matter in India, and provide insight into its psychological repercussions on children who are rendered most vulnerable in such situations.

Acknowledging the gravity of the matter, in 1980 the International Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’) was adopted, with as many as 81 countries being signatory to it. The Convention aims to protect children from wrongful removal and lays down guidelines for their return. Article 3 of the Convention lays down that the removal of a child from his or her place of residence is one that is wrongful and that a child must be returned to their place of residence,^[8] unless their removal is in consonance with the provisions of Article 12, 13 or 20. India is not a signatory to the aforementioned legislation. Additionally, there exists no domestic legislation governing the matter.

Several committees had been constituted to determine the viability of including the Hague Convention framework within the domestic set up, the latest being the Justice Rajesh Bindal Committee. In 2016, the Committee recommended that the Convention should not be ratified, a view which had earlier been held by the Ministry of Women and Child Development. Both believed that acceding to the Convention would disadvantage and harshly penalize women who were generally primary caregivers of the children.^[9] The Bindal panel suggested the setting up of an ‘Inter-Country Parental Child Removal Disputes Resolution Authority’ which would specifically deal with matters of this nature. It also drafted the Protection of Children (Inter-Country Removal and Retention) Bill, 2018, in furtherance of its object of protecting children who have been wrongfully removed.

The Bill put forward by the Committee is yet to find acceptance in Parliament, making the Court the only avenue of recourse for aggrieved parents. The reliance on Courts to solve the dispute has only exacerbated the existing vacuum in the law, owing to several inconsistent and conflicting judgments. While in cases such as Dhanwati Joshi^[10] and Sarita Sharma^[11] the Court took a more progressive approach, passing orders for the return of the child as well as increased visitation rights, in instances such as Kala Aggarwal^[12] on grounds of ‘best interests’ of the child, the Court denied the return of the child to the aggrieved parent. 

While the Court justifies its decision to refuse the return to the parent from whom the child has been removed using the ‘best interest’ principle, ironically, this move does more harm than good. The long term consequences of this move on children are far reaching, causing significant trauma and at times even resulting in social disorders. A study conducted by Agopian in 1984 showed that victims of long term removal displayed increased amounts of resentment both toward the abductor parent as well as the left behind parent.^[13] These children, in most instances blamed the former for ‘taking them away’ from their homes and the rest of their families, and blamed the latter for not ‘caring enough’, ‘abandoning’ them and not ‘rescuing them soon enough’. Additionally, these children were found to have been ‘indoctrinated’ with negative opinions of the left behind parent by the abductor parent, resulting in instances of Parental Alienation Syndrome wherein a child resorts to excessive vilification of the left behind parent to rationalize the separation.

Removed children have also been found to display tendencies of Reactive Attachment Disorder. The deep attachment formed between a child and his caregivers in the first few years of his life has a profound impact on his life, in terms of his emotions, relationships, ideals and outlook. Children that have been deprived of this secure attachment with caregivers are often found to be resentful, oppositional and may subsequently be incapable of establishing the same very foundation with their own children.^[14] Additionally, children may also develop an enhanced form of separation anxiety and fear of abandonment. While even children who have not been removed may suffer from this anxiety, the trauma is heightened for removed children, scarring them for the remainder of their lives. Removed children occasionally also suffer from identity crises which refers to a sense of confusion and insecurity of one’s own identity, owing to prolonged denial of contact with family members who mould and shape the child’s personality.^[15]

Needless to say, the consequences of removing a child from their familiar environment can result in severe psychological trauma. Courts which lack the required understanding of child psychology have, for long neglected the long term impact of their decision to grant or deny custody to a sole parent. A dissonance exists between the Court’s perceived well being of a child and the real well being. An imminent need exists to cure the existing lacuna in the law and ensure that a well equipped machinery is instituted, with the relevant experience and expertise, to address matters of such a nature. It is time that the Legislature took this matter up, and devised a permanent solution to the problem. Until such is done, the case of the removed child, and his trauma is one that will remain bleak.

Insha Rahman is a 2nd Year B.A. LLB. (Hons.) student at The WB National University of Juridical Sciences (NUJS), Kolkata.

^[1]  Andrea Charlow, Awarding Custody: The Best Interests of the Child and Other Fictions, Yale Law & Policy Review Vol. 5, No. 2 (Spring – Summer, 1987).

[2] United Nations Convention on the Rights of the Child, 1989, Article 3.

[3] The Hague Convention, Preamble.

^[4] Paul R. Amato and Juliana M. Sobolewski, The Effects of Divorce and Marital Discord on Adult Children’s Psychological Well-Being, American Sociological Review Vol. 66, No. 6 (Dec., 2001),

^[5]Dr. Justice AR. Lakshmanan, International Child Abduction – Parental Removal (2008) 48 IJIL 427.

^[6] The Indian Penal Code, 1860, Section 362.

[7] Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint 2004 Edition) 2008, p. 658

^[8] The Hague Convention, Article 3.

^[9] ‘Inter-country child abduction: Govt panel against Hague treaty’, The Indian Express, found at https://indianexpress.com/article/india/inter-country-child-abduction-govt-panel-against-hague-treaty-5169074/ .

^[10] Dhanwanti Joshi v Madhav Unde (JT 1997(8) SC 720).

^[11] Sarita Sharma v Sushil Sharma (JT 2000 (2) SC 258).

^[12] Kala Aggarwal Vs. Suraj Prakash Aggarwal, 1993(1) Hindu Law Reporter Delhi 145.

^[13] M.W. Agopian, The impact on children of abduction by parents. Child Welfare, 63 (1984), pp. 511-519.

^[14] Levy, T. M., & Orlans, M. (1998). Attachment, trauma, and healing. Washington, DC: CWLA Press.

^[15] Greif GL: The Impact of Parental Abduction on Children. Personal communication and public speaking notes provided by GL Greif, May 27, 1999.