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Report No. 263

17. Possible exceptions to the return of the child

(1) Notwithstanding anything contained in section 16, the High Court may not pass the order of return of the child if the person, institution or any other body, opposing the return, establishes that-

(a) the person, institution or any other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or has consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in a non-conducive situation.

(c) the person who is allegedly involved in wrongful removal or retention, was fleeing from any incidence of 'domestic violence' as defined in section 3 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005).

(2) The High Court may refuse to order the return of the child if -

(a) the court finds that the child objects to being returned and has attained an age and level of maturity at which it is appropriate to take into account of his or her views;

(b) the return is not permitted under the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms;

(c) the High Court, while exercising powers under this section, considers any information relating to the social background of the child provided by the appropriate authority of the contracting State in which that child has his or her habitual residence, as inappropriate;

(3) The High Court may not refuse to make an order under this section for the return of a child to the contracting State in which that child has his or her habitual residence, on the grounds only-

(i) that there is in force, a decision of a court in India or,

(ii) a decision entitled to be recognised by a court in India relating to the custody of such child:

Provided that the High Court shall record reasons while passing such orders relating to the return of a child.

Protection of Children (Inter-Country Removal and Retention) Bill, 2016 Back

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