It is the fundamental right of children to get love and affection from both parents, the Delhi High Court said on Friday as it noted that estranged parents litigating for custody often inflict psychological abuse on the child.
The High Court observed that the “custodial parent who tries to alienate the child from the other parent does not realise the serious consequences caused in the later part of the child’s life.”
‘Love and affection’
A Bench headed by Justice Pradeep Nandrajog said: “Over night access at home of the non-custodial parent needs to be encouraged at an early stage so that the child has a close and a continuing relationship and gets the love and affection of not only both parents, but also the extended family comprising grand-parents, cousins, uncles and aunties”.
The court made the observation while deciding an appeal in a child custody matter wherein the father, a Kenyan citizen, had sought overnight custody of his son, born in 2009, whenever he is in India.
Mediation report
In the instant case, the court was also called on to decide the confidentiality of the report of the mediator and the child counsellor, which was taken on record by the court and copies were given to both the parties.
The counsellor had noted that the child was happy with her mother, but seemed to idolise her father and affectionately remembered his house and relatives in Kenya.
The mother emphasised that the mediator cannot submit any report to the court unless mediation fails and also cannot disclose to the court anything discussed or disclosed by the parties.
While agreeing with the argument, the court said: “Where the scope of mediation is the resolution of a child parenting issue, report by a mediator or a child counsellor concerning the behaviour and attitude of the child would not fall within the bar of confidentiality for the reason that no information shared by the couple is being brought on record”.
“Such reports are a neutral evaluation of expert opinion to a court to guide it as to what orders need to be passed in the best interest of the child. These reports are not confidential communications of the parties,” the Bench said.
Overnight custody
In this case, in the guardianship proceedings and other connected litigation, visitation rights were granted to the father to meet the child at a shopping mall.
He, however, sought overnight custody of the child on his visits to India.
When the guardianship petition was listed before the family court in May 2016, the father requested that the child be produced before the court for the judge to ascertain her comfort level.
Mother apprehensive
An order passed to that effect by the family court was challenged by the mother before the High Court, which stayed the same. The mother had expressed apprehension that the father might remove the child from India.
The Bench of the HC also referred the parties to mediation.
While finally disposing of the appeal, the HC on Friday asked the family court to consider granting overnight interim custody to the father when he is in India by imposing conditions to ensure that the child is not taken out of the country.
