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Article by Chadalavada Raghuraman
Category Faculties of Law
Kidnapping of child—Prosecution against father /mother
“Kidnapping”, like others kinds of unilateral action in relation    to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best of the interests of the child, leading, in proper cases to the prompt return of the child to his or her own country but not the sacrifice of the child’s welfare to some principle of law”.                                 
In the important case ‘of kidnapping of a child’, The Court of Appeal, while ‘setting aside the conviction of a father for kidnapping his own child’ had referred ‘two most important questions of law of general public importance’ for decision to the House of Lords.
The two certified questions are as follows:
1. Whether the common law offence of kidnapping exists in the case of a child under the age of 14 years? 
2. Whether in any circumstances a parent may be convicted of such offence where the child is unmarried and under the age of majority? 
The facts that were responsible for referring the two questions of law were that MR.D, the respondent-father of a minor child, had kidnapped his own child by forcefully taking away the child from her mother once on 13-12-1978, being the first charge of the offence of kidnapping and again on 6-11-1981, being the second charge brought against the father. The child had already been declared as ‘the ward’ of the Family Court of the High Court on 10. 4.1978.
In his defense, to the first charge, the father had pointed out that, he had a lawful excuse for ‘taking away the child from the mother and out of this country as he believed that the child was an illegal immigrant and therefore could be lawfully be removed’since the child was in England though born in New Zealand,
In the Lower Court, Judge Lymbery ruled that under the common law of England, ‘a father could commit the offence of kidnapping of his own child, even though that child was still a minor’. 
The Jury convicted the respondent on the second charge.
The Court of Appeal quashed his conviction on the reasons that the offence could not be committed by anyone against a child under 14 years of age and the offence could not committed by a parent against an unmarried child who was still a minor. 
 In the House of Lords, Justice Brandon, in the only opinion given, which was acceptable to the other Lords, excellently summed up the ingredients of the offence of kidnapping as (1) the taking or carrying away of one person by another (2) by force or fraud (3) without the consent of the person so taken or carried away (4) without lawful excuse.
After tracing the history of legislation on the crime of ‘child stealing’ now known as ‘kidnapping’ in the new Offences Against the Person Act.1981, (known as The OP Act)and also by rejecting the beautiful argument of the Counsel for the father that ‘in view of the absence of protection to the father of a legitimate child comparable to the protection given to both the father and mother of an illegitimate child in the OP Act of 1981,’ in cases of offence of kidnapping, (such lack of protection) could only be explained and (understood) that ‘the legislature thought that it was impossible for father of a legitimate child to be guilty of the offence of  kidnapping if he takes the child by force or fraud’, Lord Brandon, in an equally beautifully reply, had declared ‘that in view of the changed social conditions and legal attitudes existing today it is possible for a father to commit the common law offence of kidnapping his own child’ as ‘the affirmative answer to the first question’.
Also giving a positive answer to the second question, Lord Brandon declared that ‘in all cases of kidnapping of a child, the absence of child’s consent is material fact, whatever may the age of the child. In the case of very young child who could not the…. understanding or the intelligence to give consent the absence of consent is an inference to be drawn on the fact of the age of the child. In the case of older child the Jury had to decide whether the child has sufficient understanding and intelligence to give consent and then consider whether it was proved that the child did not give consent’.
Accepting that it is desirable as a matter of policy, Lord Brandon gave the unanimous opinion of the House that ‘proceedings for Contempt of Court against father for snatching away his own child declared as ward of the Court’ can be initiated and ‘criminal prosecution can be brought only in exceptional cases keeping in mind the reprehensible conduct of the father. 
The House of Lords set aside the ruling of the Court of Appealand sustained the conviction of father.
Lord Brandon properly explained The Irish Supreme Court decision in Edge’s case by pointing out that the Court of Appeal did not properly understood this case.
Mr.Edge was charged with kidnapping a boy of 14-1/2 years of age by unlawfully carrying him away without the consent of lawful guardian. No doubt the boy was on friendly terms with the defendant and voluntarily went away with him without force or fraud practiced upon the boy.
The majority quashed his conviction on the ground that once a child reached the age of discretion, which in the case of a boy was, as a matter of law, 14 years, he was free to choose where and with whom he should live, and that in such a case, the consent of child’s lawful guardian was irrelevant’. 
The House of Lords declared that ‘the Irish Supreme Court did not say ‘that there is no common law offence of kidnapping of a child under 14 years of age’ but ‘it is implicit in the decision that the absence of whose consent in an essential ingredient of the offence is that of the child if it has reached the age of discretion as fixed by law’ and ‘that of the parent if it has not reached that age’ and this is also the English Law on this point.    
Lord Bridge also said that ‘where the parent acts in contravention of the order of a competent court it becomes kidnapping by parent’ by ‘leaving open the question whether a parent might be convicted in other circumstances’.
What could be the extent of criminality of a parent who forcefully takes away the child from custody of the other parent was not discussed by the Lords ‘if the child was not declared as ward of the Court’ by leaving that issue open. 
In an earlier decision The Court of Appeal in R v. Austin had come to a contrary opinion to that in R v D when a father was charged with kidnapping his own child from the custody of mother.
Mrs. Janince King met Mr.Robert King in US and married him there. She gave birth to female child, Miss.Lara. Mother came back to England with the child, planning for divorce, as it was not a happy marriage. Ms.Lara became a Ward of the court and custody of he child was with the mother. While mother was walking in a street with the child, the father, with the help of Mr.Austin and 3 others, who were hired by father, came in a car and forcefully snatched the child. Luckily Mr.King left by air to US.
Austin and his companions were convicted for the offence of child stealing for abetting and aiding the father in taking away the child with force from mother under Sec. 56 of The Offences against Persons Act, 1861.
The section declared--  “Whoever shall unlawfully ….by force….take away any child under the age of fourteen years , with intent to deprive any parent …of the possession of such child….shall be liable……………………………………………………………… ……………………………………………………………………………………………,
……………………. provided that no person shall be who shall have claimed any right to the possession of such child, or shall be the mother or shall have claimed to be the father of an illegitimate shall be liable ………..on account of getting possession of such child………..”   
The appellants intelligently argued ‘that the proviso also protects a class of persons wide enough to include those who aid a father in taking possession of the child by force. It was also submitted that ‘father and mother were equally entitled in law to custody of the child’.
The defendants raised two questions that were most relevant for their conviction.
 1. Did Mr. King committed an offence as he assaulted his wife while taking away the child from the mother? 
2. If Mr. King committed an offence, does it follow that they were also guilty and if he is not guilty under the proviso to Sec.56, are they also not guilty?  
Speaking about the role of the appellants, Lord Watkins said that they have no good reason for what they did and they had no right to assert to the possession of the child.   
Lord Justice Watkins, with concurrence of Lords Purchas and Tudor Evans, in an equally emphatic reply had declared that ‘the proviso allows of its protection being granted to a small class of persons only, which includes the father and mother, whether the child be legitimate or illegitimate or a guarding appointed by a testamentary document, or by an order conferring the status of guardianship or a person to whom is granted an some of care, control custody or access. We think of no other who could claim exemption from prosecution by reason of the proviso’.
While Mr.King may shelter behind the proviso, Lord Watkins pointed out that Parliament in its wisdom decided that the mischiefs of matrimonial discord which are unhappily so widespread should not be give rise to criminal prosecutions arising out of disputes about children about who should have possession of them. 
Therefore their appeal dismissed. 
In Indian Law, Secs.359, 360 and 361 if the Indian Penal Code, 1860 (known as ‘The Code’) tells us about the offence of kidnapping.
Sec. 361, which is more relevant, tells us that “when a boy or girl of 16 years or 18 years, as the case may be, is taken away or enticed away by any person from the custody of lawful guardian of such minor boy or girl without the consent of such guardian is said to be involved in the offence of kidnapping”. 
The Explanation says that ‘any person lawfully entrusted with the care or custody of such minor is the ‘lawful guardian’ for the purposes of sec.361.
If the Court had already passed orders giving sole custody of the child to either of the parents, the other parent can be hauled up for contempt of court proceedings if he or she takes away the child by force, but bringing prosecution may be possible but highly debatable and controversial keeping in mind the welfare of the child.    
But, suppose the mother goes to her parents’ home with the child because of disturbances with her husband by keeping the child in the custody of the grand parents.
The father may not be guilty of kidnapping when he forcefully takes away the child from the grandparents, though ‘they have lawful custody of the child’ in view of the explanation to Sec. 361.
In view of the above provisions, can prosecution be launched against father or mother, as the case may be, is also highly debatable and controversial.
We have to wait for guidance from the High Courts and the Supreme Court. 
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