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Updated: February 5, 2012 11:03 IST

Norway, yes, but let's also look within

Geeta Ramaseshan
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How does one determine that a parent is unfit to keep the child and cannot give ostensible support? The picture shows a construction worker with her child in Chennai. Photo: M. Vedhan
The Hindu How does one determine that a parent is unfit to keep the child and cannot give ostensible support? The picture shows a construction worker with her child in Chennai. Photo: M. Vedhan

The Norwegian child welfare services may not understand how children are brought up elsewhere but the Indian system of child protection is highly interventionist and ends up unfairly targeting poor parents.

The case in Norway relating to the two Indian children who were removed from their parental home raises critical concerns about what is meant by the concept of “best interest” in matters relating to children.

The purported findings of the Norway child welfare services — as claimed by the parents, at any rate — that a four-year-old did not have a separate room, that the children did not have appropriate toys for their age, were wearing clothes that were big for them and were being given food by hand, indicate a lack of understanding of how children are brought up in different parts of the world. While fortunately the case may be resolving itself, the issue of “emotional disconnect” — which the authorities apparently claim the parents have had with their children — would be a non-issue in India. But cases can and do come up when children are separated from their parents on grounds that are not always clear.

While each personal law in India — Hindu, Muslim, etc. — has different criteria for guardianship, child custody cases are determined on the basis of “welfare of the minor” and “best interests” of the child, though these two terms are often used interchangeably by courts. Despite certain guiding principles of the higher courts, it would still be dependent on the individual opinion of the judge who would determine the issue.

The Juvenile Justice (Care and Protection) Act permits state intervention in cases where children are in need of care and protection and seeks to provide for a system which will protect the best interest of children. The Act enumerates various categories where there can be state intervention. Under one category, if a parent is unfit or incapacitated in exercising control over her or his child, then such child is in need of care and protection. Any police officer, public servant, social worker, “public spirited citizen” or voluntary organisation can produce a child before the Child Welfare Committee, constituted under the Act, stating that it is in need of care and protection. The Child Welfare Committee may then pass an order to send the child to a children's home for speedy enquiry by a social worker or child welfare officer.

Overzealous “public spirited citizens” and NGOs contact the system and complain about such violations based on their subjective opinion, often with an inherent class bias. A visit to the Child Welfare Committee premises in Chennai is an eye-opener, crowded with impoverished migrants from Bihar, Jharkhand, Chhattisgarh and other States whose children are taken away on complaints that they are acrobats, beggars or working with their parents. Some children are caught by the Railway police and handed over. Once the child is caught in the system, it becomes a long and arduous task for the parents to get them out. Often, they are unable to prove their identity as parents. Proceedings before the Committee are not considered litigious in nature. Hence parents do not get any legal assistance during such proceedings. Thus migrants who come in search of livelihood due to internal displacement in their States become doubly discriminated.

The Committees constituted under the Act are required to complete an enquiry within four months. But the pendency of enquires beyond the stipulated period is common. This is because the committees have no means to determine who the parents are and try to establish contact with the committees of other States from which the children originate and then try to send them “home.” The problem becomes compounded as some States and districts do not have such committees. The lack of inter-State coordination results in inordinate delay.

In the period between the enquiry proceedings and the submission of the final report, the child is entrusted to an overcrowded reception home. This is more like a transit home and children are in “protective custody”. Since this is a temporary measure, children have nothing to occupy them. Migrant children dislike the food, do not understand the local language, some of them speak in different dialects and communication becomes difficult for even for those who know Hindi. Under the Act, after the enquiry is completed, if the committee is of the opinion that the child has no family or ostensible support or the child is in continuous need of care and protection, it may allow the child to remain in the children's home or shelter home till suitable rehabilitation is found or till the child reaches 18.

How does one determine that a parent is unfit to keep the child and cannot give ostensible support? The determination of “best interests” under the Act is complex as it has to be considered with the need of the child to be with a parent and the lack of adequate facilities and resources. And what is the kind of rehabilitation that the State can offer? The purpose of asking this question is not to justify exploitation of children by parents. But neglect cannot be determined on the basis of poverty, as is sought to be done by some who set the law in motion.

The Act is highly interventionist in its structure. But as it is used on the impoverished, who have no access to justice, its application is invisible. This is compounded by the fact that to protect the privacy of children, proceedings under it are not open to public disclosure. A greater scrutiny is needed for us to understand its implication on children.

(Geeta Ramaseshan is a senior lawyer practising in Madras High Court in the area of criminal law, constitutional law and family law. She can be reached at geetaramaseshan@gmail.com.)

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I wonder what would happen if it is the other way round. A European family working in India, their child is taken away from them for 'giving it dead animals to eat, stale food, making the baby prone to colon cancer for not cleaning up with water after toilet.!' Most probably we would have got nuked by NATO! The reasons given by Norway authorities are ridiculous. There is no need for anyone to follow these. If they want foreign talent then they have to become more sensible with their laws.

from:  Subramani
Posted on: Jan 29, 2012 at 21:53 IST

It is very well for us to say that children whose parents are unfit to care for them should be handed over to the authority. It is also easy for us to say that a child's primary need is his parents and it should not be separated from them. But in India isn't the choice of one of the above cases very difficult and subject to individual opinion. What I mean is what are the parameters to decide whether a child is being brought up in the best way possible for his parents.
If we think of factors such as nutritious food, sanitation, child abuse etc , then to what extent should these factors be considered and how much should be excused considering the poverty or illiteracy of parents. In this aspect, the western countries, if too harsh and uncompromising in their laws, atleast have a defined set of regulations which should not be violated. We have none. It is time for the govt to set laws, bodies to deliver quick judgements, and temporary homes with complete facilities for children.

from:  Ritu
Posted on: Jan 28, 2012 at 14:13 IST

we want to go high position on ladder in the index of HDI, but we are not accepting and following the rule and regulations of that particular country,how can we go apex position on that ladder? In my perception Norwegian people are right. why because in that county gender gap, high standard living,sufficient nutrients, proper child care nurturing centers are plenty available.Our county like developing India and prismatic society whatever the cause-effect we always blame the name of the God in their sects and religions that is our today tradition values .I know you and me born and nurture like same Battacharya's family,but we have to believe more than 90 per cent science and little bit remaining all the other things until science comes to that area.

from:  Ramanasri
Posted on: Jan 28, 2012 at 07:22 IST

Every child born in India has the right to have a nutritious food, healthy environment, good primary education and basic primary healthcare. I don't think any parents has the right to deny to their child the aforementioned basic rights eventhough they have given the DNA for the child.Though majority of the parents provide the best possible care to their child, a tiny minority even in India abuses their children. The cause for these irresponsible behaviour varies. Starting from substance abuse, lack of awareness of children rights, illiteracy, gender bias, cultural taboos, of course poverty and so on.But as a society if anyone sees the rights of these children are violated,we have a moral duty to seperate those children from their biological parents and place them in an approproate care so that those children will also come up in their life with flying colours.

from:  R.Manivarmane
Posted on: Jan 27, 2012 at 17:54 IST

In America and western countries adults, children used to hold ice cream cup ice fruit(in stick) in their hand and lick on roads and public places. I had seen mothers or fathers helping their children holding such eatables to enable children lick them I had also seen adults licking their fingers while eating pitza fruit juices in hotels airports

from:  Raam
Posted on: Jan 27, 2012 at 14:50 IST

Parents like to give available best things to their children based upon their level of social economic conditions. But due to their income levels that makes parents to give limited protection to their child in terms of health, food, education etc . but child welfare committes shall not consider these factors to take the children from their childrens.instead they should make aware people that there are certian laws for child protection. so if there is a breakdown of these laws then only their childrens are taken away and given proper protection to their chidren upto 18.

from:  Jakief Mohammad
Posted on: Jan 27, 2012 at 11:46 IST

My question is why is there no enquiry being done on the Indian
consulate in Norway. Why didn't they help to broker the deal the
subjects came forward? If a lapse is found, the consular general in
Norway should be sacked for negligence in duty. Its primary purpose was
to help Indian Citizens..

from:  SR
Posted on: Jan 27, 2012 at 07:52 IST

Beyond doubt a child's place is with it's parents only. It's the state's
responsibility to see to it that every child in the country is provided
with access to nutritious food , education and safe dwelling place.

from:  Nirmala Narayanan
Posted on: Jan 27, 2012 at 07:48 IST
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