An interview with Svein Kjetil Svendsen, the Bhattacharyas’ lawyer.
The Hindu's Europe Correspondent, Vaiju Naravane met Anurup and Sagarika Bhattacharya's lawyer Svein Kjetil Svendsen in Stavanger who discussed his clients' case. Excerpts.
The final decision of the court — which was unanimous — to place the children in foster care until they attain majority and to limit the parents' visiting rights to just three visits per year of an hour's duration appeared cruel, illogical, drastic to most Indians and it mystified us. Especially since the County Committee on Social Affairs (also known as the Fylksesnemnda, or District Welfare Board) had ruled that there was no emergency and that the children should be sent home. What is your reading of it?
It is rare for the Child Welfare Service (CWS) to go that far and there was a lot of activity here in our office because we felt this was wrong. But that only shows up the weakness in the child welfare system. There is no transparency in these cases due to the confidentiality clauses. And that gives them more power since no one holds them accountable for their acts. The CWS has not done its job properly because the parents asked for a psychologist to do a thorough investigation, to talk with them to see if there were issues with the parents that were aggravating the children's condition. But the CWS did not agree to that. It is only now, when the case has come up for hearing by a legal court, not by the County Welfare Board that the CWS has undertaken some sort of evaluation of the children. But nothing has been done with the parents so far. I have sent four letters and telephoned several times requesting a meeting when we could discuss these issues but there has been no response. This is not normal. Last September when the children's uncle was here, I suggested he should be evaluated for custody. But the CWS declined. Then there was diplomatic pressure and a big media campaign and then they said in February that they will agree to evaluate the brother. For the parents, the important thing was that the children should return to India and grow up there. Hopefully the CWS will learn something.
The Barnevarnet has a series of measures that can be taken to ease difficult situations in families it is interacting with. These include home help, a few days in a rest home for the mother, a nanny or someone who can help the mother at home. So why were these measures not put in place?
They were starting to use these measures because this was supposed to be a common case where they investigated the family and provided help. The CWS made many cultural mistakes when they approached this family, treating them as a normal Norwegian family. So no effort was made to understand this family's culture, making it difficult for the couple to understand what was expected by the CWS. Second, they suddenly made a normal case into an emergency case. That happens a lot when child welfare workers feel it's an emergency issue and they take the kids from the home and place them in care immediately. But this could have been avoided if they had had a better approach to the family.
What in their eyes constituted the emergency? Where did the emergency lie?
The emergency arose when there was an argument between the CWS workers and the mother and this was a frustrating situation for the CWS. The CWS felt the parents were not in a state of mind when they could give good care to their children so the kids were taken out. A similar situation could arise in a home where the parents have had too much to drink. The CWS will come in, take the children to an emergency shelter and let the parents sleep it off and when they are sober again the children are given back. This is what should have happened in this case: when the parents had calmed down and were not shouting, the children should have been returned.
So you see the decision to temporarily remove the children as not being abnormal?
Yes that is correct. What is not normal is that the children were not returned once the County Welfare Board or the Fylksesnemnda, had said there was no emergency and the children should be sent home. The CWS obtained a stay order against this decision and kept the children in its custody saying there were reports of the boy having difficulties that needed to be medically addressed. But that did not constitute an emergency.
How does the CWS define its own goals — is it only to protect the child and if, in doing that, the parents suffer greatly, that is not their concern?
That is correct. The CWS' only goal is to protect children and child workers agree that it is best for the children to grow up with their biological parents but if conditions in the home are not good enough and if there is a serious lack of care, the children have to taken out. And the question is where to draw the line between what is and what is not acceptable.
And in Norway that line is very high so we have lots of children placed in foster care but who do not necessarily get a better life than the one they would have had with their biological parents.
Is it the CWS’ reasoning that if you take a child very early then its attachments with its biological parents have not had time to grow very strong and that makes it possible for better fostering. So the earlier the child is taken, the better?
Yes. The CWS argues that the earlier they take the children away, the better. Because then, they say, children do not continue to live in the damaging conditions of an inadequate and neglectful environment. That is the main argument against the CWS. Because when children who have been under the care of the CWS and raised in CWS appointed foster homes and grow up to be criminals, drug addicts or alcoholics, and human rights organisations tell them: you could not handle these boys and girls. And the response of the CWS invariably is: No we could not, because we took them too late. They were already damaged. So every time they place the blame on the parents. That is very convenient and it is scaring, their argument. Because the sooner they get in, the more power they have and in lots of cases, if a mother has a history or is under the watch of the CWS, they can come in right after birth taking away the child from the hospital itself. They say: you will never be a good mother.
Does a parent ever get a second chance with the CWS? In the legal system, in the penal code, you may have committed a crime and been punished, but then you do not remain a criminal for the rest of your life?
There are huge variations. It varies with the case workers. Some people lose their children and are able to get them back. I have some clients who have lost one child and then had another child and a new evaluation has been made and they have been allowed to keep the second child. So there are some positive outcomes. But on the whole it appears to be a lottery and that is not good.
Norway has more than 12000 children placed in children’s homes, foster homes, emergency shelters, and special centre for drug abusers. Is 12,492 a very high percentage for a population of just under 5 million? 60,000 children born in Norway each year and there are 39,000 children who come into contact with the CWS in one way or another each year and of these almost 12,500 were placed in care – separated from the parents either temporarily or permanently – just last year. In France or Britain where the population is around 60 million respectively the number of children placed into care is about the same as in Norway a little less, actually.
This is a very high percentage for a very small population and I believe that this is unique to Norway. We have a very high percentage in public care and I hope this case will contribute to some questioning.
The International Convention on the Rights of the Child lays stress on the biological environment as being the best. But there are other reports written by eminent child psychologists who challenge this belief claiming that a good fostering environment can be equally good and in many cases even better in providing security to the child. Do you think this theory has permeated the CWS? Is this a dominant theory with the CWS - that the biological environment is secondary?
That is true in many cases. The welfare officers compare the two environments – the family concerned and the foster family. And in many cases, the foster parents are good function homes and often the biological homes have issues and problems. So on balance they consider the foster home to be the best. And that is very dangerous, because this is not a competition to judge, which is the better home for the child. You have to start with the biological home and that has to be the main place where the children grow up unless the conditions in the family home are really unacceptable.
Coming to the Bhattacharya’s case: around February or March 2011, the reports were more or less benign. Then on May 11, 2011, the children were removed and after that there are more reports, which are much more accusatory in tone, very negative. Is it your opinion that once the CWS lost the case in the County Welfare Board they felt they had to make a stronger case and therefore more documents were added?
I don’t think that they play that unfair and that they knowingly do those things. But I feel that when they have made up their mind that they want to take these children out of the home then that conclusion they have reached affects the way the case workers observe or report. You can get a tunnel vision for you arguments and purpose because you wish to attain a certain objective. That’s dangerous but I don’t know if they do this intentionally.
I have gone through the case papers very carefully. There is the report of an English lady called Mrs. Middleton. That report is extremely confused and confusing because it contains everything and it’s contrary. Firstly Mrs. Middleton being English most probably was looking at this middle-class Indian couple through a colonial prism and she should never have been put on the case – at least that is my opinion because the Bhattacharyas found her extremely judgemental, superior in her attitude and humiliating and contemptuous in the way she talked. For instance at the beginning of her report she reproaches Anurup, the father because he does not own a car and therefore spends long hours commuting, which prevents him from spending time with his family. She blames him because he does not speak Norwegian. But in the latter half of the report she says he is not interested in his family because he is taking Norwegian and driving lessons – a damned if you do, damned if you don’t scenario… So how competent are the people who are writing these reports?
There is a lot of variation between different case-workers and psychologists. Some could be fresh out of school while other might have been gaining experience for years. And that is something you can only find out in court by examining the witnesses and getting their references etc. but that is a factor that could affect the case. Because you don’t know what kind of knowledge or competence the people writing the reports actually have. And these reports have a tremendous impact as the case develops because they are the main evidence in the case papers and you can see many mistakes as the case develops. And if something is written in a report it is not necessarily true because a report is the product of the subjective view of the person who writes it and that is dangerous.
As a lawyer can you ask the CWS to justify the competence of the case-workers? Do you have the right to ask about past cases that a case-worker may have handled before? How can we be certain that child welfare workers do not carry their personal prejudices into their evaluations of a case? Doubts have been raised as to whether an Englishwoman, Mrs. Michelle Middleton was best suited to evaluate a Bengali family where the mother is hostile and speaks poor English as Mrs. Bhattacharya does. Could there be a degree of colonial prejudice in the case of Mrs. Middleton, one of the welfare workers? Could she have been taken off the case? Perhaps this colonial history between India and Britain is not well understood in Norway.
I am sure this colonial connection issue never crossed the CWS’ mind. But that is why the CWS must learn more about other cultures. And that is going to be an increasingly important question – the different cultural aspects of the families investigated and how different they are from Norwegian families – because Norway is increasing the immigration population very fast. And statistics show that many more immigrant children are taken away although Norwegian children are also separated from their parents. You can ask for a change of welfare worker but that was not done and the lawyers can question their competence but only in court. But I don’t know if that would help anything. Because CWS cases last on an average 3 days and the court decides on the basis of the documented evidence presented by the CWS against the family. So as a lawyer you have to pick your fights carefully – what gains the family most. You must choose where you can argue best – sometimes against the case workers but most of the time the courts tend to believe that these are objective players who only report on what they have seen or observed.
Are you confident of the outcome because the CWS has warned the case cannot go ahead if the Indian government fails to produce necessary documents and the legal transfer of custody to the uncle? And the hearing has been postponed.
It could. But the children must not lose their cultural, religious and nutritional heritage. And we are working hard to avoid all possible trouble. We must make sure that the paperwork is ready. So that we can show what special needs help the child can get, that the costs will be covered, that the uncle and his family will be able to provide care that will be equivalent to the care he will get in Norway.
So what could cause problems?
In Norway we have a very good health care system with free psychologists, free schooling, which supports foster parents in bringing up the children. And if you compare this against their return to India – what is the possibility that the uncle and the family will be able to provide the kind of psychological and educational help that is freely available in Norway? The court could make that comparison and that would be unfair. We will try to close all loopholes. But these are the interesting aspects to this case: how far can a country like Norway go in taking custody of children from other countries and how do we evaluate the different home environments in different cultures. That is both a diplomatic issue and a child rights issue and I hope this problem will be brought into the public debate so that there will be new legislation on it.