International parental child abduction in the eyes of Bangladeshi law

Illustration: TBS

Usually, after a divorce, courts get crowded with child custody matters. Each parent fights to win custody of their child/children and they can go to any extent to keep their child, either out of ego or extreme emotional attachment. One such extremity is international parental child abduction, which involves one parent leaving the country with their child without the consent of the other parent, notwithstanding their custody or visitation rights. 

With the crime of international parental child abduction gaining much limelight all over the world, family courts in Bangladesh are gradually getting introduced to it, as more and more of these unique complaints have been piling up on their case lists.

The reality 

Not all divorced couples conflict over the custody of their child. Former partners can come to a mutual understanding regarding who the child will stay with. If the child is an infant or a toddler, most couples agree on keeping the child with the mother. In such cases, the father often gets to visit the child at an agreed-upon time and provide for the child's expenses till they reach the age of maturity. 

In this situation, if the parent with the natural custody of the child, i.e. the mother, leaves the country with the child without the consent of the other parent, i.e. the father, he will technically have nothing to do since there was no court order establishing any right to begin with. 

In such circumstances, a father is told to just "let it go" as it's best for the child to be with their mother, especially when they are divorced. Many parents settle for video calls just to see their child at a time decided upon by the other parent, while hopelessly waiting for them to return back, which in most cases, never happens. In most cases, the parent who has the child marries another person and settles abroad, thus diminishing the last strand of hope for the other parent. 

Are there any Bangladeshi laws making it illegal and if yes, what are they?

In Bangladesh, a typical reaction to parental child abduction by a mother would be indifference since the child is expected to be safe with their mother. The rights of the father as a child's natural guardian are hardly recognised apart from his financial responsibility in the child's life. The concept of abduction of a child by a parent (especially a mother) is not considered to be a crime, to begin with. An unlawful act cannot be justified just because it relates to a mother and her child.

According to Muslim personal laws, after a divorce, regardless of who has the physical custody of the child, a father continues to be the natural guardian of the body and property of his child. This is such a right that does not need to be established by any courts. 

From this perspective, a Muslim father can seek the assistance of the court to help get back his child, especially if he can prove that the child was removed from its jurisdiction without his consent. But it is far from easy in reality due to jurisdictional limitations and the absence of a specific law.

At present, there are no such laws in Bangladesh which specifically talks about this concept or provides any clear remedy. Traditionally where there is a conflict regarding the custody of a child, a suit is brought to family court by either parent. The legal battle lasts for years until finally, the court reaches a decision based on the age and best interests of the child. 

If one parent has a reasonable belief that the other parent can leave the country with the child while the court case is pending, he/she can apply for an interim order to restrain them from leaving the jurisdiction of the court. The court will then pass a restraining order which the parent obliges by.

Moreover, the country that the parent had left for with the child might have established immigration rules specifically regarding travelling with the child. For example, countries like Australia and Canada have mandatory rules for obtaining the consent of the non-accompanying parent before granting a visa. The parent travelling with the child has to produce a NOC and evidence that the other parent has given consent to the parent taking the child.

These requirements are mostly due to these countries recognising international parental child abduction as a crime. But if one has ulterior motives, i.e., to leave without informing the other parent, they may find other ways to bypass regulations.

Bangladesh is unfortunately not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, even though 100 other countries have adopted it in their own family laws. It is a part of customary international law due to its massive application all around the signatory states. 

The 1980 Convention provides that the removal or retention of a child is to be considered wrongful "a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." 

According to the 1980 Hague Convention, an abducted child should normally be returned expeditiously to their habitual residence. Since Bangladesh is yet to sign the 1980 Convention, consequentially it also becomes an ideal place for international child abductors to take shelter and take advantage of the lack of such rules.

But it may be said that since the 1980 Convention is being strictly enforced by more than 100 countries, it has become a part of customary international law which may be binding for all countries of the world regardless of whether a country has not ratified it. But that's an argument of law that would need the intervention of the apex court of the country. Nevertheless, with such a concept yet to be recognised in the country, the crime committed by international child abductors goes unpunished.

Barrister Aiman R Khan is a Family Lawyer and an Associate at Rahman Law Associates and Company.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.