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 firstname.lastname@example.org.)
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.