Whether the case is that of divorce or separation, one of the most important things to be considered, by both the parents and the courts, is the “best interests of the child.”
So, What Does This Phrase Mean?
The principle of the “Best interest of the child” or “welfare of the child” originates from the UN Convention on the Rights of the Child. Article 3.1 of the Convention states “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Furthermore, Article 18 states “Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”
What comes under the term ‘best interests’?
- Wishes of the child (if old enough to capably express a reasonable preference);
- Mental and physical health of the parents;
- Parental use of excessive discipline or emotional abuse;
- Evidence of parental drug, alcohol or child/sex abuse;
- If a child has special needs, how does each parent take care of those needs;
- Religion and/or cultural considerations;
- Interaction and interrelationship with other members of the household;
- Adjustment to school and community;
- Age and sex of the child;
- Existence of a pattern of domestic violence at home; and
- The child’s skills and evolving capacities;
Under Family law, the questions most often asked are i) With whom will the children live? ii) How much contact will the parents, legal guardian, or other parties be allowed to have? Iii) To whom and by whom will child support be paid and in what amount?
The Concept of Welfare under Indian Laws
There are multiple laws that govern child custody and visitation in India. A person can seek custody under the Guardian and Wards Act, Religious Minority and Guardianship Act, Proceedings under Protection of Women from Domestic Violence Act. Various acts stipulate that the father is the natural guardian of the child. Also, the same acts say that the custody of minor till a specific age should be with the mother. These factors are now considered less important and a new concept “Welfare of the Child or Best Interests of the Child” has become the cornerstone in deciding child custody.
Section 9(5) of the Hindu Adoption and Maintenance Act provides that “Before granting permission to a guardian under sub-section (4) the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.”
In India, the Guardians and Wards Act was enacted in 1890 by the colonial state, which continued the legacy of Common law, of the supremacy of the paternal right in guardianship and custody of children. While Sections 7 and 17 of the Act provided that courts should act in furtherance of the welfare of the minor, Sections 19 and 25 of the original Act, subordinated the same to the supremacy of the father. It is only the Hindu Minority and Guardianship Act, 1956, enacted by the independent Indian state that provides that welfare of the minor shall be the paramount consideration superseding all other factors – Section 13(1) “In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.”
In India, the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) charges Child Welfare Committees (CWC) in every district (administrative division) with the responsibility of ensuring the rehabilitation and protection of “children in need of care and protection.” State governments appoint a five-member CWC for each district that functions as a quasi-judicial body. The law requires such committees to make their decisions in the “best interest of children.”
The Law Commission of India has submitted its Report No. 257 on “Reforms in Guardianship and Custody Laws in India” today to the Union Minister of Law and Justice. The report suggests amendments to existing laws to emphasize the “welfare of the child” in custody and guardianship matters, and introduces the concept of joint custody as an option to be considered in certain cases. this report of the Law Commission reviews the current laws dealing with custody and guardianship and recommends legislative amendments to the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. These amendments are necessary in order to bring these laws in tune with modern social considerations. Major amendments are recommended to the Guardians and Wards Act, 1890, by introducing a new chapter on custody and visitation arrangements.
The problem with the principle is with its use in cases of child abuse and neglect, where the state performs its Parens Patriae role and seeks to remove the child from the custody of her guardian. In such cases, the best interest determination being case specific and individualistic makes state intervention into the family more unpredictable.
Two solutions have been proposed by scholars to counter the problem of indeterminacy of the “best interests” standard. First, the solution of a core set of inviolable rights that forms the “best interests” standard. Second, the solution of dynamic self-determinism advanced by Prof. Eekelaar, which is premised on the link between the “best interests” and child participation in decision-making, a link that has also been drawn by the Committee on the Rights of the Child.
With regard to the best interest principle, the Supreme Court has observed: “Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned.”
In KG vs State Of Delhi & Anr., the High Court observed “Thus, the best welfare of the child, normally, would lie in living with both his/ her parents in a happy, loving and caring environment, where the parents contribute to the upbringing of the child in all spheres of life, and the child receives emotional, social, physical and material support – to name a few.”
India is not a signatory to the U.N. Convention on the Civil Aspects of International Child Abduction. This is widely regarded as enabling the Indian courts to usurp power to determine custody in cross-border cases despite being Forum non Conveniens and is frequently cited as the main cause for the international perception of India as lacking the laws for, and judicial enforcement of, the child’s best interests in cross-border custody cases.
In the absence of any domestic laws, together with the non-accession of the Convention, Indian courts have dealt with cases of parental child abduction as civil custodial disputes. Habeas Corpus petitions under Article 32 or 226 of the Constitution, are filed as applications for custody under Guardians and Wards Act. Once seized of the matter, the court invokes the doctrine of parens patriae (Latin for ‘parent in nation’) so as to employ the principle of “welfare of the child” or “best interests of the child.”
In Carla Gannon and Anr. v. Shabaz Farukh Allarakhia and Anr., the Bombay High Court was hearing a habeas corpus petition filed by the mother to produce the child allegedly abducted by the father and held “the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to consideration.” Drawing from this, one can say that parents are entitled to have their rights presented during child protection hearings and that these should be independently considered while evaluating what is in the best interests of the child. However, while these are factored in, the best interests of the child are the “supreme consideration.”
In Satyandra Nath v. B. Chakraborthy, where both parents of the child were dead and the paternal relations claimed custody of the child who was residing with the maternal relations, the Calcutta High Court held that welfare of the minor was the paramount concern, and the paternal relations did not have a preferential position in matters of custody.
In deciding cases involving Muslim children, High Courts have decided in favor of the mother only when her right to custody was supported by Muslim law. In Suharabi v. D. Mohammed, where the father objected to the mother’s custody of the one-and-a-half-year-old daughter on the ground that she was poor, the Kerala High Court held that the mother was authorized to have custody of a daughter of that age under Islamic law.
In any assessment of what is best for the child, it is essential that the child herself or himself be allowed to express an opinion and that that opinion is taken seriously. The Courts are unable to clearly define what comes under the term and thus there is a lack of comprehensive and systematic approach that would guarantee an even quality of opinions prepared for the court. The next step in this evolution of the ‘best interests’ approach is to develop models for how impact assessments and evaluations could be designed. When and how should they be carried out? What areas should be given first priority? How should these analyses be linked to ordinary political processes? What kinds of questions should be asked – and to whom? What training needs to be provided to decision makers and others in order to make all this meaningful?