Although Friday's court hearing of the Bhattacharya child custody case has been put off, Norway's Stavanger Kommune (municipality) indicated that the Child Welfare Service (CWS) and the Bhattacharyas' lawyer Svein Svendsen were still searching for a possible solution that would be agreeable to all.
"What I have argued is that the CWS cannot claim to be able to control everything that happens to the children in India once they return. It is for the Indian legal system to take over and the Indian government has given assurances that what has been signed will hold up in an Indian court. Every parent has the right to reclaim the custody of his or her children placed in care. This is how it is in Norway and this is how it should be in India,” Svein Svendsen told The Hindu.
On Friday morning, the parents and uncle of the Bhattacharya children, Abhigyan and Aishwarya, who are now under CWS foster care, signed an agreement transferring the custody of the children to the uncle, Arunabhas Bhattacharya. The agreement was notarised by the consular officer from the Indian embassy in Oslo, Balachandran.
On Thursday, the CWS said it ran out of patience with a feuding Bhattacharya family and decided it was impossible to reach an agreement on the handover of custody of the children to the uncle. On Friday, the CWS once again opened the door a chink and there is a slim hope that the agency will accept the agreement and seek a fresh court date in the near future.
The case was due to be heard on Friday on the condition that the parties entered into an agreement that care of the children should be awarded to their uncle in India, but just minutes after the Bhattacharyas presented a signed and sealed agreement to CWS chief Gunnar Toresen on March 21, he decided the case had to be postponed because of conflicts in the family. That agreement was signed again in the presence of the Indian consular officer and notarised by him.
The CWS claimed it wanted an agreement that would hold up “under Indian law in the Indian courts.”
The reason why it took so long to get the agreement was because several drafts went back and forth between Stavanger, Kolkata, Oslo and New Delhi (with the Indian government involved directly from the capital and through its embassy in Oslo).
The initial agreement proposed by Ms. Bhattacharya's lawyers in India contained clauses that would have made a mockery of the uncle's custodial rights and left the way open for Ms. Bhattacharya and her family claim that the children had merely been placed in foster care with the uncle with a view to “adoption.”
This was a provision under Section 42 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2000 that deals with “foster care” for temporary placement of infants who are ultimately to be given for adoption.
“Section 42. Foster care: (1) The foster care may be used for temporary placement of those infants who are ultimately to be given for adoption. (2) In foster care, the child may be placed in another family for a short or extended period of time, depending upon the circumstances where the child's own parent usually visit regularly and eventually after the rehabilitation, where the children may return to their own homes. (3) The State government may make rules for the purposes of carrying out the scheme of foster care programme of children.”
This paragraph under which the Chakroborty family could have challenged the custody agreement was deleted from the agreement after consultations with a lawyer in Calcutta. Also in earlier drafts, the uncle had been referred to as “parental uncle” or “custodian parent” or “foster parent” and this has been changed to “paternal uncle “foster parent and guardian,” a phrasing that defines him firmly as the children's custodial guardian.
The CWS would have liked watertight clauses in the agreement that would have ruled out any attempt by either of the parents of ever taking back custody of the children. Such as:
“The children shall be placed with the uncle as foster parent and guardian even if we as the parents choose not to live together, separate or divorce.” And: “This agreement will not be challenged by us or our relatives before any court or before any authority or institution.”
However, Ms. Bhattacharya, who claimed in an interview that her husband was “torturing” her and “forcing” her to sign, insisted upon removal of the two clauses.
The agreement as it now stands is unlikely to meet the CWS' conditions, especially those of its lawyer. For although Gunnar Toresen is the head of the Stavanger CWS, the lawyer too wields tremendous influence and the two have differing views. It, therefore, came as no surprise when the CWS issued a tough press release on Wednesday saying it had decided to go back on the agreement brokered by Secretary (West) when he visited Norway on February 29. The CWS has now been persuaded to return to the negotiating table but the future still remain unclear.