In addition to the domestic inter-parental custody conflicts raging across the country, 30 million Indians around the world have led to a huge increase in international inter-parental child abductions both to and from India. Since India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction of 1980, custody disputes in India are decided on the principle of the best interests of the child. Foreign court orders are only one criterion for the review. Parental alienation syndrome is writ large. Against this background, innocent children are pawns in inter-parental conflicts and find little expression. The Youth Criminal Justice Act (Care and Protection of Children) from 2015 has now found a definition of the “best interests of the child”. Under the Guardian and Wards Act 1890, if the minor is old enough to form an intelligent preference, the court may take this preference into account.
There is no mechanical application to the rapid return of abducted children from India to their foreign homes, as India, as a non-Hague signatory country, does not follow any case law with a mirror order. The extraordinary parens patriae constitutional jurisdiction of the Supreme Court and High Courts of India is invoked in the best interest and welfare of the removed child. In this quagmire, the child's feelings, desires, longings, fears, fears and innate expressions are lost in the struggle of warring parents who fight to assert superior and preferential parental custody rights.
In this noise of marital war, the child is a silent spectator. No Indian law gives him or her the right to express his or her opinion. A child deserves the right to freedom of speech and expression. Indian laws are in dire need of change. Unfortunately that is the case. a bridge too far.
Children are not mere spectators in the legal battle over their fate. They are the beating heart of every custody battle – a treasure whose rightful guardian we must take great care to identify. In the Indian courts, as in all civilized spheres, the welfare of the child comes first. Nevertheless, we must not forget the child's own voice, because it is often the surest guide to justice.
An order from all over the world
We are not alone in this endeavor. India is a signatory to the UN Convention on the Rights of the Child (UNCRC). The powerful voice of international law resonates in Article 12 of the UN Convention on the Rights of the Child, to which India acceded in 1992. This clarion call proclaims the right of children to express their opinions freely on any matter that concerns them, and Article 3 calls on us to do so. The best interests of the child are our paramount consideration (UNCRC, 1989). In our own country, this refrain is reflected in the Juvenile Justice (Care and Protection of Children) Act, 2015, defining the “best interests of the child” as the lodestar of all decisions affecting a child's physical, emotional and social well-being (Section 2 Paragraph 9).
Domestic law
The structure of our domestic law, from the Guardian and Wards Act of 1890 to the Hindu Minority and Guardianship Act of 1956, places on the courts the noble duty of ensuring that any guardianship agreement genuinely protects the best interests of the child. The landmark judgment in Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413 is a testament to this principle and solemnly declares the welfare of the child as the “paramount consideration”.
But experience has taught us that the child's own statements, tempered by age and understanding, provide a perspective that no court should ignore. The Supreme Court in Yashita Sahu v. State of Rajasthan, 2020 SCC OnLine SC 360, emphasized that while a child's preference may not be the final word, it can prove to be an invaluable beacon guiding us towards a comprehensive solution.
The Supreme Court and the High Courts perform a salutary function by exercising their vital jurisdiction to protect the welfare of children, to provide justice to children in appropriate cases, regardless of the technicalities of the law. Unfortunately, the outdated and antiquated Guardian & Wards Act of 1890, which provides for individual guardianship and custody rights, is a contradiction to the child's right to a shared family life. Shared parenthood, joint custody of both parents and the right of children to be cared for by fathers and mothers are unknown legal concepts and therefore do not find meaningful recognition in Indian family courts.
Guardians, courts and the dignity of the child
In the great tradition of parens patriae, our supreme courts have the solemn responsibility to protect the interests of the child. However, in fulfilling this sacred role, we must not suppress the child's spirit. When courts speak with a juvenile in private, it should be more than a formality – it should be a genuine attempt to learn the child's wishes and fears. An intimidated child may be expressionless, alienated, or unable to express his or her true opinion. If our shared mission is to uphold not only the letter of the law but also the dignity of our youth, we must ensure that no child is treated like a trophy to be won, but rather like a valued human being whose feelings are at the center of great importance.
Shared Custody: A Vision for Collaboration
As the concept of shared custody gains traction, we are seeing a rapid shift away from the once rigid notion of sole parental custody. In Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228, the Supreme Court sheds light on these archaic boundaries and suggests that traditional paternal guardianship should give way to more balanced arrangements. Here too, the voice of the child must inform us. If a shared custody plan is to be successful, it must align with the rhythms and preferences of the person at the center.
The call to action
So let’s move beyond petty rivalries and rhetorical arrogance. A child's future is too sacred ground for controversial theatrical performances. Children are not chattel; They are entitled people who deserve to be heard and valued. By inviting their voices into the hallowed halls of justice, we remain true to the spirit of the UNCRC and our Indian jurisprudence.
May we remember that giving the child a fair hearing is not only an obligation but also an honor, because in their young words lies the foundation of tomorrow's society. Let us act with compassion, vigilance and humility as we make laws and make judgments that uplift the youngest among us. This is how we uphold the promise of our nation's future: caring for one child at a time.
The breakthrough: the beginning of a new jurisprudence
Justice A. Mustaque, Judge of the Kerala High Court, author of numerous judgments on the welfare of children in need of care and protection, has introduced and introduced a brilliant and ingenious machinery of child support lawyers within the existing infrastructure of our existing legal systems.
The Child Legal Assistance Program (CLAP) is the game changer in this area of child voiceless darkness. The Kerala State Legal Services Authority (KeLSA) has been directed to prepare a program for legal assistance to children in guardianship matters and also in matters related to child sexual offenses. In light of the directive, CLAP has been formulated to appoint lawyers willing to independently represent children, hereinafter referred to as “Child Support Lawyers”, in custody matters and all such litigation involving children's rights in court. Affected authorities in the state of Kerala. The Project (CLAP) will function under the aegis of the Kerala State Legal Service Authority (KeLSA), established under the Legal Services Authorities Act, 1987 to provide legal and psychological support to children and to enable them to express their views and To raise concerns and enable the courts/authorities concerned to take a decision to ensure the primary welfare and welfare of the children in the litigation.
Although existing laws provide language that promotes the best interests of children, they do not provide an immediate remedy or opportunity for children to express their views. Custody disputes have become platforms for parallel divorce accusations to establish overarching parental authority over custody. Children have lost their voices in these divorce wars. A child is just another trophy to win. The polarized, alienated, confused, brainwashed, dejected child surrenders to fate and becomes a piece of property. Until the legal tools allow for counseling, psychological analysis and mediator intervention, the harm done to the child is irreversible. Good intention, its meaning is lost. A reasonable analysis is impossible. As Justice Sikri summarized in the Supreme Court judgment in Vivek Singh vs. Romani Singh, 2017(3)) SCC 231, the level playing field is lost in every decision. Reported cases have shown families breaking up, children being divided between parents and the die being cast. Children spontaneously and unconsciously lose their right to family life.
CLAP and Child Support Attorney (CSL)
The far-fetched wisdom and reach of Judge Mustaque in creating CLAP with a cadre of CSL is therefore a breakthrough. When a CSL acts as counsel for the child at the earliest possible stage of the court hearing, the children have an unadulterated voice to have their views heard for independent consideration and determination by the relevant court. The focus will be on the child's independent, neutral and impartial opinion. Courts can then use their wisdom to separate the grain from the chaff for the true welfare of the child. In order to respect a child's opinion, both parents can share parental duties and responsibilities under immediate interim court orders, thus resolving their mutual bitterness and acrimony for the good of the child. A new process will emerge to recognize the voice of children's rights.
It is worth replicating the ideology of CLAP & CLS in all jurisdictions of various High Courts in India. It requires no legislative changes to existing family laws, no major overhaul of the existing legal system and is easy to implement, implement and immediately put into action. National and state judicial academies can facilitate the implementation of this innovative knowledge sharing and immediate use program. Let’s not delay this path to child justice any further.
LAWYER, ANIL MALHOTRA, IAFL FELLOW, LLM (LONDON)*
Secretary, IAFL International Child Relocation Committee.
Email: anilmalhotra1960@gmail.com
Website: https://www.anilmalhotra.co.in
https://carefulchildrelocation.com/india-5/
ANKIT MALHOTRA, LAWYER, LLM (LONDON), FELIX SCHOLAR**
Email: ankitmalhotra97@gmail.com
Website: https://www.ankitmalhotra.co.in/
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