RIGHTS OF THE REMOVED CHILD

The Supreme Court in its latest judgment in Prateek Gupta Vs. Shilpi Gupta delivered on December 6, 2017, following the earlier Court precedent given in Nithya Anand Raghavan, decided on July 3, 2017, has again firmly decided that the issue of the return of a child, removed from its native country by a parent against the other parent's wishes, will be predominantly based on the welfare of the child principle. Differing with previous judgments given in the past five years, wherein children were directed to be returned to their foreign homes, the Supreme Court, has now disapproved the primacy given to Orders of Foreign Courts on the issue of custody of minor children. Consequently, legal principles of such determination will no longer find preference and foreign Court Orders directing return of children will now not find automatic implementation. Determination of the welfare of the child now lies with the domestic Courts in the country. How far is this will be a true reflection of the "best interest of child" yet remains to be seen.

In this crossfire of different interpretations of the Supreme Court, the lost voice of the unfortunate child is drowned in the parallel litigation being conducted by his contesting parents simultaneously before domestic and overseas jurisdictions, where conflicting claims are made over custody issues based on rival parental rights. The Government of India ratified the United Nations Convention on the Rights of the Child (UNCRC) on December 11, 1992 and this led to the making of the Commission for Protection of Child Rights Act, 2005 (CPCRA) and the 2015 amendment of The Juvenile Justice (Care and Protection of Children) Act, 2005 (JJ Act). But, to what end and to achieve what purpose.

The JJ Act now defines "best interest of child" to mean the basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development. Further, the JJ Act now enshrines the principles of family responsibility, repatriation and restoration, unless it is not in the best interest of the child. This is to accord statutory recognition to the introduction and to Articles 1 to 20 of the UNCRC wherein, every child has rights to a nationality, name, family life, family relations, right to be cared by both parents and not be separated from his or her parents. The UNCRC also prescribes State Parties an obligation to provide family reunification in a positive, humane and expeditious manner, when children are separated from either parent. The National Charter for Children, 2003 of the Government of India, affirms the attendant duties of inculcating in children, a sound sense of values directed towards preserving and strengthening the family.

It is in this backdrop in terms of the UNCRC ratified by India, the important determination of ensuring the best interest of the child in a process of adjudication ought not to focus on the contesting rival rights of parents. The emphasis should be on the right of the child to a family life to enable development to full potential, by being nurtured in the biological family. The child undoubtedly has a inherent right to family life and to be cared by both his parents and not to be separated from them or his siblings. The determination of the child's place of residence by judicial review ought to be in a "positive, humane and expeditious manner". In the din and disharmony of a conventional adversary litigation between contesting spouses and claims to establish superior parental rights, the "principle of repatriation and restoration" of a child to be reunited with his family, as enumerated in the JJ Act, is pushed into darkness. Children are separated and pushed to different residences in separate countries. This is not in consonance with the "principle of best interest" embedded in the JJ Act. The determination of the true welfare of the child is thus lost.

Despite 30 million non-resident Indians in 180 countries, of a total population of 1.2 billion, Indians constitute the largest diaspora in the world with immense potential of cross border family disputes. If India is not to be a signatory to the Convention on the Civil Aspects of the International Child Abduction, ratified to by 98 countries, it ought to atleast follow principles of UNCRC endorsed and approved by it. A favourable interpretation of child rights based on laws of the countries of their family home with emphasis on right to family life ought to be the decisive factor. Preferences of parents choosing Courts in countries of their convenience for child custody battle grounds ought to be ignored. A balanced judicial precedent by the Supreme Court in this regard is now extremely necessary for consolidating the much needed settled law and providing a clear path for other subordinate Indian Courts to follow. A harmonious blend of all relevant factors is necessary to be consolidated in a wholesome conclusive decision. The focus on the best interest of the child as per law of the country where the child is habitually resident must find preference over choices of parents for such litigation.