By Dr Rakesh Kapur

Our family court system has repeatedly failed our children in violation of parens patriae jurisdiction granted to it and judgement by Bombay High Court (FCA 114 / 2015) epitomises all that is wrong with our family court system.

Brief Case History

Briefly, the parents separated when the child was 40 days old, and during the 12-year long litigation, a number of court orders giving day and overnight access to the father were flouted. The High Court took a welcome step of appointing a psychiatrist but even the psychiatrist was unable to ensure a stable & consistent parenting schedule, even though the father & his family were treating the child well. The High Court continued the custody of the child with the mother and regular visitation to the father, though vide provisions in the order, it seems the court is aware that even this judgement would not be complied.

Before dealing with flaws in the judgement, which in my opinion is against the best interests and welfare of the child, I would like to express concern over “justice delayed is justice denied”, which has become an “epitaph” of Indian Judicial system!

12 years & counting

Although delays are fatal in most litigations and gross violation of fundamental rights guaranteed under Article 14 & 21 of our Constitution; in child custody suits, it destroys not just an individual but an entire generation. The trauma endured by the child and her parents has already scarred & handicapped the child for life. The child has spent two-thirds of her childhood in a single-parent household and children growing up in single-parent households are 5 times more likely to commit suicide; 7 times more likely to drop out of school; 7 times more likely to become teenage moms; 11 times more likely to commit rape; 15 times more likely to have behavioural disorders; and 15 times more likely to end up in prisonor as drug addicts.

Though, efforts taken by the Hon’ble Bench at trying to resolve the impasse are laudable, the judgement has ignored important “symptoms” to arrive at a wrong diagnosis and then proceeded to “prescribe” an ineffective and failed remedy!

Parental Alienation: A silent epidemic of child abuse

The judgement states, “Perusal of the evidence of the husband show that he is not able to establish that either the wife is not properly looking after the child or that the child is being neglected by the wife”. It is obvious from reading of the judgement that severe Parental Alienation (PA) has been in play, apparent from lack of access in spite of court’s orders, no infirmity in father or his family, inability of psychiatrist to ensure access, observations by the psychiatrist and specific averments of tutoring & brainwashing made by the father in the present case.

Parental Alienation (PA) or tutoring or brainwashing is well known by our judiciary, however, unfortunately, our judicial system is unaware about its disastrous consequences or on ways to prevent / manage it. Parental Alienation is NOT a family issue but that of serious Child Abuse and failure to act on the same is in violation of Article 19 of UNCRC and Article 9, 17 & 18 of National Charter for Children, 2004.ECHR (European Court of Human Rights) has repeatedly fined countries for not acting on PA, while countries like Brazil & Mexico have made it into a criminal offence by law. There is considerable research documenting its disastrous impact on children (low self-esteem, depression, inability to form relationships, suicide, substance abuse etc), however, none more telling than the press release of American Psychological Association stating, “Children who had been psychologically abused suffered from anxiety, depression, low self-esteem, symptoms of post-traumatic stress and suicidality at the same rate and, in some cases, at a greater rate than children who were physically or sexually abused.” In fact, the expected life-span of alienated children maybe cut short by 10 – 15 years.

Therefore, it is not neglect but patent child abuse that stands established. Supreme Court of India, [“Vivek Singh vs Romani Singh”; Civil Appeal No. 3962/2016; dt 13.02.2017], shifted the custody of the child to the non-custodial parent at the mere possibility of Parental Alienation, while Court of Appeal for Ontario, “Kenneth Rogerson vs. Anita Tessaro” dt 28.04.2006, upheld that even though the mother was a good parent, custody of the child was correctly shifted since, “Appellant, while otherwise a good parent, was unable to support a relationship between the children and their father.”

Perhaps, the most appropriate articulation of judicial wisdom has been made by Supreme Court of New Hampshire in its judgement dated 31.03.2011, titled, “James J Miller vs. Janet S Todd”, wherein the court shifted the custody of the child, stating;

“Across the country, the great weight of authority holds that conduct by one parent that tends to alienate the child’s affection from the other is so inimical to the child’s welfare as to be grounds for denial of custody to, or a change of custody from, the parent guilty of such conduct…It is the duty of each parent to foster and encourage a child’s love and respect for the other parent, and the failure from that duty is as harmful to the child as is the failure to provide food, clothing or shelter. Perhaps it is more harmful because no matter how well fed or well clothed, a child cannot be happy if he or she feels unloved by one parent.”

Judgement abets child abuse

While prescribing remedy, the judgement states that since the child has been living with the mother for past 12 years, “Any attempt to permanently disturb the custody of the child will adversely affect the child.” However, this argument is fallacious on many counts;

1. The argument is bad in law, since the custodial parent had managed to keep custody of the child to the exclusion of the father by flouting orders and allowing her to take advantage of her own wrong-doings is not permissible in law. The Supreme Court of India in, “Gaurav Nagpal vs Sumedha Nagpal” (2009 1 SCC 42) states;

By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs.”

1. As mentioned above, outcomes in alienated children are at least as bad as a sexually abused child. Therefore, if a parent is taking good care of food, clothing and educationand the child is “well settled”, but at the same time the parent is sexually abusing the child, would the court still come to the same conclusion?

1. Systematic review of large amount of research done on Parental Alienation states;

The weight of evidence from this systematic review suggests that leaving the child with the alienating parent exacerbates the alienation. Instead, the evidence supports changes in custody arrangements in favour of the targeted parent as an effective strategy for improving child-parent relationships and reducing distress in the child (Dunne and Hedrick, 1994; Gardner, 2001; Rand et al., 2005). Importantly, Reay (2015) observed that separating the child from the alienating parent was not harmful to the child.*

1. Courts across the world follow a “protocol” of warning accompanied by establishment of Shared Parenting; followed by fines & psychological counselling; followed by shift of custody and finally termination of parental rights of alienating parent, in escalating manner, on repeated counts of alienation.

Recommended Systemic Changes

Finally, this judgement is not unique in failing to protect the child and neither the last one, unless, the following systemic changes are made in the system;

1. The term “visitation” must be replaced by “Parenting time”. Words have a profound impact on human psyche and “visitation” is best used for meetings by jail inmates!
2. Mandatory submission of “parenting plan” at the start of any matrimonial suit, since 60 – 70% of litigations can be cut short by half through a parenting plan and it provides a stable & consistent care to the child.
3. While framing of issues in child custody suits, “Doctrine of friendly parent” should be made a key determinant of child custody, as prevalent in many countries.
4. Mandating, Rebuttable presumption of Shared Parenting in line with principles of jurisprudence. Since it has been proven that Shared Parenting is the best arrangement for children post-separation, therefore the onus must lie with the parent opposing the same to disprove the same in a particular case.
5. A comprehensive protocol for managing “Parental Alienation” must be formulated.
6. A specialised body, like “CAFCASS” in United Kingdom, must be constituted, which willassist the court by conducting child interviews, gathering credible data about parents, conducting medical examinations, recommending parenting plansand conducting research on best interests & welfare of the child.

* “Recommendations for best practice in response to parental alienation: findings from a systematic review” by University of Melbourne & University of Tasmania published in peer-reviewed Journal of Family Therapy, 2017]

—The author is a Child Rights activist and Co-Founder of a NGO BambooTree. He can be reached at bambootreeorg@gmail.com