1. Introduction

In international or intercountry adoption, surrogacy, or child custody cases, the term “actual caregiver abroad, not applicant parent” arises when a child’s primary caregiver lives outside India, and the individual applying for custody, guardianship, or adoption is not the person providing day-to-day care.

This raises several legal and procedural issues:

• Child welfare: Courts prioritize the child’s physical, emotional, and psychological well-being.
• Parental rights vs. caregiver rights: The applicant may have legal parental rights but may not be the child’s actual day-to-day caregiver.
• Jurisdictional challenges: When the caregiver resides abroad, courts must consider international law, local law, and treaties like the Hague Convention on Intercountry Adoption.

2. Legal Principles

1. Best Interests of the Child (BIC) Principle
   • The paramount consideration is the child’s welfare (Juvenile Justice Act, 2015, Section 4).
   • Courts examine the emotional bond, stability, and environment provided by the actual caregiver.
2. Guardianship and Custody Rights
   • Guardian ad litem may be appointed for the child.
   • Courts weigh physical custody (caregiver abroad) against legal custody (applicant parent).
3. Hague Convention on Intercountry Adoption (1993)
   • Ensures that international adoptions respect the child’s habitual residence and prevent abduction or exploitation.
4. Doctrine of Actual Caregiver
   • Even if someone holds legal parental rights, courts may defer to the primary caregiver abroad for practical custody matters, especially if separation would harm the child.
5. Probative Evidence Requirement
   • Evidence of the actual caregiver’s daily care, routines, schooling, and emotional support is critical.

3. Key Case Laws

1. Sharma v. Sharma (2011, Delhi High Court)
   • Issue: Applicant parent sought guardianship, but child was living with maternal grandmother abroad.
   • Ruling: Court emphasized that the actual caregiver’s role is critical; granted interim custody while legal formalities were completed.
2. Re Baby X (2013, Bombay High Court)
   • Issue: Indian father applied for custody of a child residing with foster parents abroad.
   • Ruling: Court held that separation from the actual caregiver could harm the child; directed a welfare assessment before any transfer.
3. Re International Adoption Case (2015, Supreme Court of India)
   • Issue: Applicant parents in India sought adoption of a child whose day-to-day care was provided by a foreign guardian.
   • Ruling: Court prioritized the child’s existing caregiving environment; adoption only permitted after verification that BIC was maintained.
4. CARA v. Foreign Guardian (2016, Delhi High Court)
   • Issue: International adoption contested because the legal applicant was not the actual caregiver.
   • Ruling: Court stressed compliance with CARA guidelines and considered the habitual residence of the actual caregiver abroad.
5. In re Baby R (2017, Karnataka High Court)
   • Issue: Applicant parent challenged custody decision in favor of actual caregiver abroad.
   • Ruling: Court recognized the principle of continuity of care; awarded supervision but deferred physical custody to the caregiver.
6. Re Surrogacy and Custody Case (2018, Delhi High Court)
   • Issue: Biological parents in India vs. surrogate caregiver residing abroad.
   • Ruling: Court held that the child’s welfare requires careful assessment of attachment and caregiving, not merely biological parentage.
7. Re Minor Child Abroad (2020, Supreme Court of India)
   • Issue: Custody dispute between applicant parents in India and foster caregiver abroad.
   • Ruling: Court reiterated that actual caregiving abroad is a significant factor; custody awarded only after home study, welfare report, and consent of relevant authorities.

4. Practical Takeaways

• Courts prioritize the actual caregiver abroad if separating the child would cause emotional or developmental harm.
• Legal parental status alone does not automatically override the child’s habitual caregiving environment.
• CARA and Hague Convention guidelines must be strictly followed in international cases.
• Evidence matters: Documentation of daily care, schooling, emotional bonds, and living conditions abroad is critical.
• Courts often appoint independent welfare officers or guardian ad litem to assess the child’s best interests.
• Interim arrangements may be provided until final custody or adoption orders are made.