'Child Welfare Prevails Over Foreign Orders': AP High Court Rejects Father's Plea Seeking Enforcement Of UK Court Custody Order

While dismissing a writ of of habeas corpus filed by a father before the Andhra Pradesh High Court seeking custody of his minor-child (a UK citizen) in order to enforce an order passed by the Family Court of England, the High Court has observed that such a writ cannot be employed to enforce foreign court orders, and reaffirmed that the minor's welfare is paramount and prevails over her nationality or citizenship and any orders passed by the Foreign Courts.The father (petitioner)— a British citizen was married to Respondent 8, and the couple subsequently resided in the UK. A daughter was born out of the wedlock, and the child possessed permanent British citizenship. When matrimonial discord arose between the parties, the petitioner initiated divorce proceedings in the UK, whereafter Respondent 8 returned to India.Upon request made by the petitioner that her daughter needs love and affection of her grandparents, the UK Family Court permitted him to bring the child to India during her school holidays, and during such a visit, the child— who was handed over to her grandparents (Respondent 6 and 7) for two days, was retained by them. The petitioner initiated multiple proceedings before the UK Courts— where the UK Family Court and High Court directed return of the child; and the present writ petition before the Andhra Pradesh High Court where the petitioner sought production of the minor before the Court, enforcement of the foreign court orders, and direction to hand over her custody to the petitioner.Accordingly, the Court was to determine— (i) whether a writ seeking enforcement of foreign court orders is maintainable; and (ii) whether the Court should determine custody based on welfare of the child, irrespective of the foreign orders.A Division Bench comprising Justice Cheekati Manavendranath Roy and Justice Tuhin Kumar Gedela, while acknowledging that the alacrity of the desirous father for the custody of the child by filing the petitions before the Family Court and High Court in England demonstrates his love and affection, held that the letter and spirit of law is that “the Court should be ad litem (guardian) to the child and its welfare.” In this regard, the Bench held,“At this juncture of life, the girl child needs special care and attention of the mother. There are certain biological changes, which a girl child undergoes, which cannot be taken care of by the father, who acceding to his admission that he stays alone in United Kingdom. Children will be reticent in the tender age and may demonstrate a greater degree of emotional intelligence, awareness, and responsiveness to her surroundings. This developmental characteristic assumes significance while considering issues relating to the welfare, care, and emotional security of a minor girl child”Further noting that when the child was left with her grandparents, the custody cannot be termed as illegal and unlawful, the Bench stated,“… the petitioner himself pleaded before the Family Court of England sitting at Kingston-upon-Hull that the child needs family environment especially with the grandparents and pursuant to the orders of that Court, the petitioner himself placed the custody of the minor child with the grandparents. Therefore, in view of the peculiar facts and circumstances of this case, we hold that the Habeas Corpus petition, filed under Article 226 of the Constitution of India, cannot be entertained and hence, is liable to be rejected.”Notably, the Court also referred to the peculiar language used in the UK Family Court's order— which was passed after noticing the present petition filed in the Andhra Pradesh High Court, where it was observed that “the Courts of India do decline to exercise any jurisdiction in relation to matters of parental responsibility in respect of the child”. As against this, the Bench observed,“This imprints a fostered culture of subordination and speaks of colonial mindset. As subsidium sine qua non, this colonial legacy cannot be permitted to be revived or superimposed upon the independence of the Indian Judicial.”In his challenge, the petitioner had contended that the minor was a British citizen who habitually resided in the UK and failure to direct her return from an alien environment where the child would “uproot” from her native country and adversely affect her education, cultural continuity and overall welfare. He further submitted that the respondents (6 to 8) had illegally retained custody of the minor, and that orders of the UK Courts directing return of the child must be respected under the principle of first strike and the doctrine of comity of courts.The Respondents argued that the child was in lawful custody of her biological mother, and hence such custody cannot be termed illegal. The petitioner had voluntarily handed over the child to her grandparents, and therefore cannot allege unlawful detention, and further that a writ is not maintainable especially where custody is not prima facie illegal.On the issue of...

'Child Welfare Prevails Over Foreign Orders': AP High Court Rejects Father's Plea Seeking Enforcement Of UK Court Custody Order

Saahas Arora

Tags