COUNSELLING & MEDIATION RESOLVES INTERPARENTAL CROSS-BORDER CHILD CUSTODY DISPUTE IN 10 DAYS

In a unique beneficial, meaningful & timely exercise safeguarding best interest and welfare of two children, Hon’ble Mr. Justice H.S. Grewal of Punjab & Haryana High Court, successfully disposed off in 10 days a Habeas Corpus petition seeking return of 2 children to USA. On the basis of US Court Orders upon being petitioned by the father seeking return of both US national children, the High Court issued a timebound four days notice & thereafter upon interaction with the children, referred the matter to High Court Mediation & Conciliation Centre for Counselling and Mediation to explore the possibility of a settlement within a week. The brilliant concluding result, an amicable settlement concluded & achieved in 10 days, spoke for itself.

In a child centric jurisprudence, avoiding a challenging adversary litigation, the High Court put all its focus on child welfare determination & not adjudication of rights of warring parents claiming custody. This shifted the benevolent thought process. It changed the course of litigation to child welfare determination. The priority was to decide the primary and paramount consideration i.e. welfare of children, not rights of parents claiming preferential status as custodians.   

Interaction of the children with the Court itself, the Counsellor and the Mediator was the fulcrum. An excellent assessment of the children’s emotional wellbeing, parental capacities and family dynamics facilitated by the Counsellor Ms. Nidhi Chauhan, set the ground for Mediation. Taking over, Seasoned Senior Mediator Mrs. Sarita Sangar Advocate, conducted marathon advisory counselling sessions with parents and children to carve a course for an amicable settlement. Within 3 days, a five page self-explanatory written settlement agreement laying down a consensus was achieved. This enabled the Court to dispose off the matter amicably within 10 days.

As a Court practitioner over four decades, I have never achieved such an effective peaceful disposal of a cross-border child custody dispute in such a record short span of time. In 1986, after a removed child was retaken away pending High Court proceedings, a roving Writ of Habeas Corpus gave me results after 10 years. Much water has flown since then. Thought process boundaries have changed and shifted. Now, the larger pivotal issue is the message to be learnt. Court directed and monitored timebound counselling & Mediation for an amicable settlement can replace adversary litigation between parties urging preferential parenting rights. Children, and not litigation is prioritized. As Secretary of the International Child Relocation Committee of the International Academy of Family Lawyers, this is a very useful lesson for learning and practice for me.

India being a signatory to the UN Convention on the Rights of the Child (CRC) defines “best interest of child means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectural development”, in the Juvenile Justice (Care and Protection) of Children Act, 2015.

The child focus perspective of Hon’ble Mr. Justice H.S. Grewal achieved a fast track settlement and amicable disposal of the matter. It is laudible & serves as a precedent practice direction to emulate. The judgement lays down the principle of effective adjudication of interparental child custody disputes across borders sans adversary or inquisitorial litigation. The successful results speak for themselves.