Psychological intervention may be needed while dealing with fragile family relationships
Roshan Dalvi
In her book Tangible Justice: Glimpses of a Judicial Life, Justice Roshan Dalvi has related incidents about real life litigants and how she dealt effectively with sensitive matters. Reproduced here, with permission, is an edited extract from her book.
Cases are like snowflakes and strained relationships are like glass. Each case requires to be handled differently and with care. I handled the case of a father of two little girls estranged from their mother because of a volatile, physically abusive relationship. The father demanded what he hardly deserved. Nonetheless, since he was a father, I played my usual card of arranging a meeting. The children were visibly petrified. The father commenced talking as if he was cross examining the tiny tots. He demanded an explanation from them about the justification of his behavior with their mother in an accident which he purportedly tried to prove to me in that ulterior fashion.
I had to intervene to halt the mental torture of innocent minds. I directed him to undergo a course on anger management before he approached his children. I reasoned that the father was not mature enough to have an order of access. The order was not his ‘legal right.’ It does not feature in any legislation. Such orders are passed because it is the right of the children to access both parents, no matter their differences. It is to tie them to their roots, no matter how intermittently, so that the roots may take hold and the parental relationship is aided. In fact, it is the duty, responsibility and obligation of the parents. It is, therefore, that the guardian is only statutorily defined and the person applying to be appointed guardian of a child must show fitness to be one to ensure the welfare of the child which is the prime consideration before any court. It is interesting to note that in England a parent applying to have custody of her/his child must show how responsible she/he is to fit the bill. The very legal provision is "Parental Responsibility.”
Illustration by Farzana Cooper
"Give your child the wings to fly, the roots to come back, and the reason to stay.”
Many a case of child custody entails very specialized psychological treatment which courts are ill-equipped to handle with the dexterity they require, given that their education, training and experience is in law and not psychology. The infrastructure of the Family Courts, therefore, statutorily includes marriage and child counselors who are trained social workers or pyschologists and optionally even child psychiatrists. The situation is compounded by misinforming the custodial parent and misguiding the child in what has come to be the most notorious interpretation of statutes and Supreme Court judgments. This requires interviewing the child and respecting her/his opinion and preference.
It is little realized that the child’s preference is conditioned upon his age and maturity to discern right from wrong and good from bad. Further, the contemplated preference is to be "intelligent preferences… wherever possible.” It applies in cases of granting custody whilst passing a decree or appointing of a guardian and not for mere access or contact or visitation. In matrimonial jurisdiction, cases of Parental Alienation Syndrome (PAS) abound. This is child abuse which constitutes a human rights violation. The child is tutored and trained to refuse to even see or talk to the non-custodial parent and courts throw up their hands after a few minutes of interaction on the ground that the child refused. This is the greatest travesty of justice to the one deserving the longest helping hand. In fact, the very access would mold the child to decide what is best for her/him and must be granted much like a child is pushed to attend school no matter whether she/he cries and wails and refuses to go to school.
The very provision of contact or access, as a precursor to custody, is to enhance and smoothen the ultimate custody and there is no question of asking an ill-advised and misguided child to decide before he is endowed with that ability. The opinion of a child of 16 years to consent for his medical treatment is statutorily allowed in the UK. It is a situation called ‘Gillick Competence’ to make it as effective as if he were of full age. This is based upon his level of maturity and understanding. That is the precedent condition for allowing the child to decide her/his future. The case in which I would have no success in bringing together the parent and child, I would refer to the child counselor for counseling in the number of patient sessions as each case would take and then obey the opinion of the expert.
"Children are little people who need big rights.”
The newer system of granting joint custody, which has now come to stay, is the result of years of research by social scientists in child psychology. They have opined that shared parenting is in the long term interest of the child. It reminds us of the profound words of the late American radio and television writer Andy Rooney in his poetic composition, "I have learnt that simple walks with my father around the block on summer nights when I was a child did wonders for me as an adult…” Children innately need, want and desire both parents under most circumstances; they may not be able to articulate their views to the judge or the counselor or they would be tutored to say things other than the truth. It is for the courts to understand this emotional situation and not ask the child a stupid question as to whether she/he would want to go to her/his non-custodial parent. I granted joint custody by way of an agreement under ‘Consent Terms’ in two cases where the parents were responsible and responsive to the emotional needs of the child as children always need and want both parents in all usual circumstances.
"The acronym FAMILY stands for Father and Mother I Love You.”