Mrs Chatterjee Vs Norway - Who Decides The 'Best Interest’ Of The Child ?

When the film 'Mrs.Chatterjee Vs Norway' was released last week in theatres across the world, reviewers in India were routinely commenting about the overacting by Rani Mukherjee, playing the main protagonist of the film whose children had been snatched away by the Child Welfare office in Norway.

The story of an Indian immigrant Sagarika Chakraborty and her husband Anurup Bhattacharya settled in Norway fighting for custody of their children had made headlines for several months in 2011.The issue took international dimensions when the Government of India had to intervene in the matter and fight it out with the Norway government and its draconian Child Welfare Services known as Barnevernet.

Since Sagarika belonged to Kolkata her case drew the attention of Brinda Karat the feisty Communist Party of India (Marxist) leader. The issue became very tough for Sagarika because she was also a victim of domestic violence and her husband wanted her to be declared mentally unstable.

A lesser known actor in this fight was activist Suranya Aiyar, daughter of veteran bureaucrat-turned politician Mani Shankar Aiyar, who joined the fight for justice for Sagarika by challenging the arbitrary powers of the Child Welfare authorities. Sagarika went on to write a novel detailing an account of her trauma which became the basis of this film written and produced by Ashima Chibber.

A film is always a work of art and it adds new elements to draw crowds. To add masala to the film one of the lawyers in the film goes on to allege that the Norwegian authorities pick up children forcibly because they run prostitution dens and that running foster homes is big business for them.

This was resented by the Norway Ambassador in India who wrote an article in the Indian Express calling out 'factual inaccuracies' in the film. Hans Jacob Frydenlund wrote in his Op-Ed piece that "Child welfare is a matter of great responsibility, never motivated by payments or profit."

Paying compliments to Rani Mukherjee, he writes,"Given Rani Mukherjee's acting ability,it is tough to be unmoved by it and movie-goers may walk out of the theatres thinking of Norway as an uncaring country."

To this, Mani Shankar Aiyar replied "The Ambassador writes he has "beautiful memories of the time my children were growing up”. These included “feeding them with my hands”. He was lucky he did not suffer the surveillance of the English social worker in Stavanger, Norway, who told Sagarika, the Indian mother, that Indians were “barbarians” who “ran around naked” until the British civilised them, and that she knew how Indian families treated their children as she had seen ‘Slumdog Millionaire’.

In the long-drawn court scenes in the movie, both in Norway and India, the main issue of

contention is the term 'best interest of the child.' Everyone is talking of the best interest of the child given to Child a Welfare Committees till s/he is an adult. How fair is this?

Normally in disputes where there are no guardians, or the child is from the category of children who need care and protection, the decision about where the child will live is to be taken by the Child Welfare Committee, set up in most districts though not everywhere in India.

But the criticism of activists is that these CWCs are packed with political appointees for whom it is a full time job like any other job. In the movie, as in real life, people are asking how do we know that these CWCs are fully competent to take a decision about children who are presented before them.

Shashank Shekhar, a senior lawyer with the Supreme Court and an activist who also had a major role in drafting the Juvenile Justice Act in 2000 and its subsequent amendments, explained, “This term Best interest of the Child comes from the UNCRC declaration of 1989 which was ratified by India in 1992. The law says that the best interest of the child is to be decided first by the child himself. And it suggests a participatory methodology to decide this.

“We have to ask the child's opinion and if we talk to them patiently even a two-and-a-half year old child will indicate his choice decisively. But if he is too young to understand the issue the next decision-makers are the parents according to law. And if there are differences or disputes among them it's the biological mother whose opinion will prevail.”

In the above case the argument of the Norway lawyer is that the mother does not have the financial needs to educate the child since she is divorced. To this Shashank Shekhar argues, “if the couple is divorced the law should ensure that he pays the maintenance so that the children can go to a proper school. In any case it's very difficult to dismiss the stand of the mother in such cases.”

Dr. Kiran Aggarwal, a well-known paediatrician and activist, reveals that such laws exist not only in Norway but in most countries of the world which declare that a child is the state property, “but I can't say that it does not have the interest of the child at heart.

“One of my colleagues in the US told me that when she had twins, the doctors and hospital staff were keeping a close watch on her. They told her that if she was unable to take care of both the children the hospital would take care of one of the children till she was strong enough to look after the twins. We can't even imagine such a scenario in this country where hospitals are brimming with patients and doctors have to skip even their lunch to deal with patients in the OPD.”

Then there is another category of mothers about whom not much is known. “I was once part of a team visiting the Tihar jail in Delhi. There are pregnant women inmates in jail and when their children are born they have to be taken care of. We found all the women quite content and cheerful that their children were being looked after by their relatives. But jail officials revealed that in private these women were complaining that almost in 100 per cent cases their daughters above five were being abused at home by alcoholic fathers.This suggests that we should have better surveillance over young children than we have at present,” said Dr. Aggarwal.

Suranya Aiyar, the lawyer-activist, has not been free ever since she started fighting for justice for Sagarika in 2011. “I have been getting calls from all over the world about custody of children wherever Indians are settled, be it US, Germany, UK or France. This is because all the countries are ruled by the UNCRC guidelines which propounds this 'Best interest of the Child' concept," she said.

She has an issue with her Indian counterparts who brought in the Juvenile Justice Act, “I am sorry to say that those who brought in this law based on Western philosophy and thrust it on Indians have damaged the cause of children permanently.”