This letter was issued to the Heads of State attending the G20 Summit in September 2023 in New Delhi, India. Signatories to the letter were the Hon’ble Justice (rtd.) Ruma Pal, formerly of the Supreme Court of India, the Hon’ble Justice (rtd.) Vikramajit Sen, formerly of the Supreme Court of India, the Hon’ble Justice (rtd.) AK Sikri, formerly of the Supreme Court of India, the Hon’ble Justice (rtd.) Deepak Gupta, formerly of the Supreme Court of India, the Hon’ble Justice (rtd.) Manju Goel, formerly of the High Court of Delhi, the Hon’ble Justice (rtd.) RS Sodhi, formerly of the High Court of Delhi, the Hon’ble Justice (rtd.) AP Shah, formerly Chief Justice of the Delhi High Court, the Hon’ble Justice (rtd.) RV Easwar, formerly of the High Court of Delhi, the Hon’ble Justice (rtd.) S Muralidhar formerly Chief Justice of the High Court of Odisha.
This issue was widely reported in the press and discussed in the press:
https://thewire.in/diplomacy/children-removed-families-migrants-g20
https://indianexpress.com/article/opinion/columns/bring-ariha-home-8865663/
TEXT OF THE LETTER
New Delhi
September 5, 2023
To,
The Honoured ‘Group of 20’ (G20) Members, Invitee States
And Invited Organisations:
His Excellency, the President of Argentina
His Excellency, the Prime Minister of Australia
His Excellency, the President of Brazil
His Excellency, the Prime Minister of Canada
His Excellency, the President of the People’s Republic of China
His Excellency, the President of the French Republic
His Excellency, the Chancellor of the Federal Republic of Germany
His Excellency, the Prime Minister of India
His Excellency, the President of the Republic of Indonesia
Her Excellency, the Prime Minister of the Italian Republic
His Excellency, the Prime Minister of Japan
His Excellency, the President of Mexico
His Excellency, the President of the Republic of Korea
His Excellency, the President of the Russian Federation
His Royal Highness, King Salman bin Abdulaziz Al Saud of Saudi Arabia
His Excellency, the President of South Africa
His Excellency, the President of the Republic of Turkey
His Excellency, the Prime Minister of the United Kingdom
His Excellency, the President of the United States of America
Her Excellency, the Prime Minister of Bangladesh
His Excellency, the President of the Arab Republic of Egypt
His Excellency, the Prime Minister of the Republic of Mauritius
His Excellency, the Prime Minister of the Netherlands
His Excellency, the President of Nigeria
His Royal Highness, Sultan Haitham bin Tarik of the Sultanate of Oman
His Excellency, the Prime Minister of the Republic of Singapore
His Excellency, the Prime Minister of Spain
His Excellency, the President of the United Arab Emirates
His Excellency, the President of the European Council
Her Excellency, the President of the European Commission
The United Nations
The International Monetary Fund
The World Bank
The World Health Organisation
The World Trade Organisation
The International Labour Organisation
The Financial Stability Board
The Organisation for Economic Co-operation and Development
The Hon’ble African Union
The African Union Development Agency AUDA-NEPAD
The Association of South East Asian Nations
The International Solar Alliance
The Coalition for Disaster Resilient Infrastructure
The Asian Development Bank
Re: Repatriation of Indian Children in Foreign State Custody
Excellencies, Royal Highnesses and Invited Organisations,
We, the undersigned retired judges of the Supreme Court and High Courts of India, welcome you to India and wish you a successful G20 Summit.
We are writing to appeal to you to initiate discussions regarding a pressing issue of concern to ex-patriate Indians on short- to medium- term work stay in Western Europe, the United Kingdom, North America, Australia and New Zealand.
We understand from news reports that this is an issue that affects other countries that send significant labour and work force to these countries and urge them to consider joining our appeal.
Recent years have seen vast numbers of Indians, especially software engineers, take up residence as ex-patriates in these countries on work placements. The families tend to be young, with small children. In most cases, the entire family, including the children, are passport-holding Indian citizens, and intend to return to India after a few years’ work experience.
As India does not permit dual citizenship, they are not citizens of the country of residence. Having newly arrived in the country of residence, they typically have no extended family, such as grandparents or siblings, living there.
Every year there are cases of children among these ex-patriate families being removed from parental care by the child protection authorities of the country of residence on grounds of abuse, neglect or risk of harm. Such children are placed in custody of the foreign child protection authority. While all children are entitled to kinship care when removed from parental custody, as these children have no extended family in the country of residence, they do not have that option.
Typically, these children are placed with foster carers who are native to the country of residence and without any ethnic or cultural links with the child’s country of origin. As a consequence, these children lose their identity and are unable to develop any bonds with their country of origin or their extended families. They age out of foster care in a state of double alienation – they are not citizens of the country of residence, and have no substantial ties with their country of origin.
It is not for India to question the assessment of parents by the country of residence, although there does appear to be a need for better understanding of cultural differences and provision of good quality translators in child protection proceedings.
However, Indian children removed from parental care are the responsibility of the Government of India under international law.
For the reasons described above, a return to a safe placement in the home country is a more humane and compassionate solution for such children, than leaving them in foreign state custody for the entirety of their childhoods.
India has a robust child protection system, with a nationwide-network of district-level Child Welfare Committees. For your information, India is divided into states, and states into districts, so these Child Welfare Committees are closely connected with the children in their jurisdiction. Our Child Welfare Committees are autonomous statutory bodies, with the same powers as child protection agencies of developed countries to remove children from parental custody when they have been, or are at risk of abuse or neglect, and to place such children in kinship or foster care.
Under international laws discussed in the enclosed note (please refer to Annexure 1), there is already an existing international legal framework for the repatriation of such children to a safe placement in the home country, based on their Right of Return as nationals to the home country, and their right to preservation of their culture, language, faith and identity.
In view of these legal, compassionate and practical considerations, we urge you to take steps for initiating a discussion in the Group of 20 (G20) for the repatriation of Indian children in foreign countries who have been removed from their parents by child protection agencies.
India has already intervened on an ad hoc basis to obtain such repatriation of Indian children from Norway and the United States of America. There is currently a tragic case ongoing concerning an Indian baby of Gujarati origin in foster care Germany. The parental rights have been terminated and the Government of India has requested the child’s repatriation in the care and protection of the Indian child welfare authorities. This is a solution that respects the German system’s assessment of the parents, while enabling the child to atleast preserve her nationality and heritage. We urge Germany to consider this request compassionately.
Already there has been a tragic case of an Indian mother committing suicide as Australian child protective services refused to repatriate her children. We must do all we can to avoid such tragedies repeating in the future.
Thanking you,
Yours sincerely,
Hon’ble Justice (rtd.) Ruma Pal, formerly of the Supreme Court of India
Hon’ble Justice (rtd.) Vikramajit Sen, formerly of the Supreme Court of India
Hon’ble Justice (rtd.) AK Sikri, formerly of the Supreme Court of India
Hon’ble Justice (rtd.) Deepak Gupta, formerly of the Supreme Court of India
Hon’ble Justice (rtd.) Manju Goel, formerly of the High Court of Delhi
Hon’ble Justice (rtd.) RS Sodhi, formerly of the High Court of Delhi
Hon’ble Justice (rtd.) AP Shah, formerly Chief Justice of the Delhi High Court
Hon’ble Justice (rtd.) RV Easwar, formerly of the High Court of Delhi
Hon’ble Justice (rtd.) S Muralidhar formerly Chief Justice of the High Court of Odisha
Annexure – 1
International Law regarding the Right to Repatriation of Children in Foreign State Custody
Under Article 3 of the United Nations Convention on the Rights of the Child (UNCRC), the primary principle in all actions concerning children by any court or state agency is the “best interests of the child”.
This means that any child services authority or family court in any country, and at all times, has the power to consider repatriation of a foster child to its home country, if this would serve its best interests.
Such children have a Right of Return to India under Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) which states that that no one shall be arbitrarily deprived of the right to enter their own country.
General Comment No. 27 (GC/27) to the ICCPR says in paragraph 19 that the right to enter one’s own country “includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person’s State of nationality).”
The UNCRC recognises the need of a child to be raised in a family environment.
The family has also been recognised in Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in Article 23(1) of the ICCPR as the “the natural and fundamental group unit of society”.
The importance of the involvement of family in a child’s life is also recognised in Article 10(1) of the ICESCR which enjoins State parties to give the “widest possible protection and assistance to the family”.
“Family”, includes “extended family” under Article 5 of the UNCRC. The concept of “extended family” is also recognised in paragraph 2 of General Comment No. 19 (GC-19) to the ICCPR.
If foster care in a foreign country effectively erases the child’s identity, then this is a very serious violation of its rights under international law.
Under Article 8(1), the UNCRC says that States Parties are obligated “to respect the right of the child to preserve his or her identity, including nationality, name and family relations”. The Preamble of the UNCRC says that due account has to be taken “of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.” Article 30 of the UNCRC states that children belonging to ethnic, religious or linguistic minorities “shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.”
It is also the responsibility of the State to respect a child’s faith. Article 14(1) of the UNCRC states that States Parties “shall respect the right of the child to freedom of thought, conscience and religion.”
Under Article 15 of the ICESCR State Parties are under a duty to recognise and preserve the rights of children to take part in cultural life. General Comment No. 21 (GC-21) to Article 15 of the ICESCR states that the right to take part in cultural life includes the rights of children “to learn and understand cultural values and practices of the communities to which they belong” and that children “play a fundamental role as the bearers and transmitters of cultural values from generation to generation.”
This principle is echoed in Article 29 (1) (c) of the UNCRC which states that “the education of the child shall be directed to……(c ) The development of respect for the child’s …..cultural identity, language and values, for the … the country from which he or she may originate.”
Paragraph 54 of GC-21 states that under Article 15 of the ICESCR States are obliged to provide “all that is necessary for the fulfilment of the right to take part in cultural life when individuals are unable, for reasons outside their control, to realise this right for themselves with the means at their disposal.”
This inability to participate in cultural life exactly describes the predicament of children confiscated in foreign countries from their Indian families. Moreover, denying a child any possibility of growing in its country of origin and changing their nationality or forcing them to assimilate in the fostering country amounts to removing the children of any one group to another group, which is one of the five forms of genocide recognized under the United Nations Convention on the Prevention and Punishment of Genocide (Article II (e)). So a solution for children in foreign foster care is urgently needed.
Under Article 5(h) of the Vienna Convention on Consular Relations, 1963, the sending State is under an obligation to safeguard the interests of minors in the receiving State, particularly when matters of guardianship are involved. So the child’s right to the protection and involvement of the Embassy of her country is well-established in international law. The Vienna Convention provides for the consulate of the country of origin to be notified on the removal of minors from parental guardianship, however this is never followed in practice. Consular access is also denied to these Indian children.
Addressees:
President Alberto Fernandez
Embassy of Argentina
F-3/3 Vasant Vihar,
New Delhi – 110057
Prime Minister Anthony Albanese
High Commission of Australia
1/50G, Shantipath, Chanakyapuri, New Delhi – 110021
President Luiz Inacio Lula da Silva
Embassy of Brazil
8, Dr APJ Abdul Kalam Rd, Aurangzeb Road, New Delhi – 110011
Prime Minister Justin Pierre James Trudeau
High Commission of Canada
7/8 Shantipath, Chanakyapuri, New Delhi – 110021
President Xi Jinping
Embassy of the People’s Republic of China, 50-D, Shantipath, Chanakyapuri, New Delhi – 110021
President Emmanuel Macron
Embassy of the French Republic
2/50-E Shantipath, Chanakyapuri, New Delhi – 110021
Chancellor Olaf Scholz
Embassy of the Federal Republic of Germany
6/50 G, Shanti Path, Chanakyapuri
New Delhi – 110021
Prime Minister Narendra Modi
Office of the Prime Minister
South Block, Raisina Hill
New Delhi – 110011
President Joko Widodo
Embassy of the Republic of Indonesia, 50-A Kautilya Marg, Chanakyapuri, New Delhi 110021
Prime Minister Giorgia Meloni
Embassy of the Italian Republic
50 E Chandragupta Marg, Chanakyapuri, New Delhi – 110021
Prime Minister Fumio Kishida
Embassy of Japan
Plot No.4&5, 50-G Shantipath,
Chanakyapuri, New Delhi – 110021
President Andres Manuel Lopez Obrador
Embassy of Mexico
C-8, Benito Juarez Marg, Block C, Anand Niketan, New Delhi – 110021
President Yoon Suk Yeol
Embassy of the Republic of Korea
9 Chandragupta Marg, Chanakyapuri Extension, New Delhi – 110021
President Vladimir Putin
Embassy of the Russian Federation, Shantipath, Chanakyapuri, New Delhi – 110021
His Royal Highness, King Salman bin Abdulaziz Al Saud
Royal Embassy of Saudi Arabia
30 Chandragupta Marg, Chanakyapuri, New Delhi – 110021
President Cyril Ramaphosa
High Commission of South Africa, B -18, Vasant Marg, Vasant Vihar, New Delhi – 110057
President Recep Tayyip Erdogan
Embassy of the Republic of Turkey, 50-N, Nyaya Marg, Chanakyapuri, New Delhi- 110021
Prime Minister Rishi Sunak
British High Commission
Shantipath, Chanakyapuri
New Delhi – 110021
President Joseph R. Biden, Jr.
Embassy of the United States of America
Shantipath, Chanakyapuri
New Delhi – 110021
Mr Charles Michel, President of the European Council
Delegation of the European Union to India and Bhutan
5/5 Shantiniketan, New Delhi – 110021
Ms Ursula von der Leyen, President of the European Commission
Delegation of the European Union to India and Bhutan
5/5 Shantiniketan, New Delhi – 110021
Prime Minister Sheikh Hasina
High Commission of Bangladesh
EP 39, Dr S Radhakrishnan Marg,
Chankayapuri, New Delhi – 110021
President Abdel Fattah Saeed Hussein Khalil El-Sisi
Embassy of the Arab Republic of Egypt
1/50 M, Niti Marg, Chanakyapuri,
New Delhi – 110021
Prime Minister Pravind Kumar Jugnauth
Embassy of the Republic of Mauritius
EP-41, Jesus and Mary Marg,
Chanakyapuri, New Delhi – 110021
Prime Minister Mark Rutte
Embassy of the Kingdom of the Netherlands
6/50F, Shantipath, Chankayapuri,
New Delhi – 110021
President Bola Ahmed Tinubu
High Commission of Nigeria
EP 4, Chandragupta Marg, Chanakyapuri
New Delhi – 110021
His Royal Highness, Sultan Haitham bin Tarik
Embassy of the Sultanate of Oman
EP 10 and 11, Chandragupta Marg, Chanakyapuri
New Delhi – 110021
Prime Minister Lee Hsein Loong
High Commission of the Republic of Singapore
E6, Chandragupta Marg, Chanakyapuri
New Delhi – 110021
Prime Minister Pedro Sanchez
Embassy of Spain
12 Prithviraj Road, New Delhi – 110011
President Sheikh Mohamed bin Zayed Al Nahyan
Embassy of the United Arab Emirates in India
12 Chandragupta Marg, Chanakyapuri,
New Delhi – 110021
United Nations
UN House, 55 Joseph Stein Lane, New Delhi – 110003
Mr Luis Breuer, Senior Resident Representative
International Monetary Fund
Room 102, First Floor,
Lodhi Hotel, Lodhi Road
New Delhi – 110003
World Bank
Mr Sudip Mazumder
70 Lodhi Estate, New Delhi
World Health Organisation
World Health House
Indraprastha Estate, Mahatma Gandhi Marg,
New Delhi – 110002
World Trade Organisation
Rue de Lausanne, 154
Case Postale,
1211 Generve 2, Switzerland
ILO DWT for South Asia & Country Office for India
International Labour Organisation
India Habitat Centre
Core 4B, 3rd Floor
Lodhi Road – 110003
Secretariat to the Financial Stability Board
Centralbahnplatz 2,
CH-4002, Basel,
Switzerland
Organisation for Economic Co-operation and Development
2, rue Andre Pascal,
75016 Paris, France
African Union Headquarters
PO Box 3243, Roosevelt Street,
W21 K19, Addis Ababa, Ethiopia
African Union Development Agency AUDA-NEPAD
230 15th Agency
Midrand, South Africa
Asean India Centre
Association of South East Asian Nations
Corel VB, Fourth Floor
India Habitat Centre, Lodhi Road
New Delhi – 110003
International Solar Alliance, Secretariat
Surya Bhawan, National Institute of Solar Energy
Institute of Solar Energy,
Pahari, Faridabad
Gurugram Road, Gurugram – 122003
Coalition for Disaster Resilient Infrastructure Secretariat
4th and 5th Floor, Bharatiya Kala Kendra
1 Copernicus Marg, New Delhi – 110001
ADB Indian Resident Mission
Asian Development Bank
4 San Martin Marg, Chanakyapuri,
New Delhi – 110021