By P. V. Swati:
Barnevarne, a child care service of Norway, took custody of Indian children Abhigyan and Aishwarya from their natural parents Anurup and Sagarika Bhattacharya in May 2011 when they were two and-a-half years and six months old and lodged them in separate foster homes. It charged the mother Sagarika with “negligence and unable to bring up” the children.
The Norwegian court further ruled that the two children would stay in two different foster homes until the age of 18 and their natural parents would be allowed to meet them only for an hour once a year. Shockingly, the court added a precondition that only if the couple separated, could the custody of the children be given to the natural father, who has been employed as a geoscientist in Norway. After an international media outcry and a personal meeting of grandparents Monotosh and Shikha Chakravarty with President Pratibha Patil to seek her intervention in getting their two grandchildren back from foster care in Norway, headway is reported. Now Norway has agreed to hand over the children to their uncle in India. But, the visas of Bhattacharyas expiring in March, they dread leaving the country without their children.
Amid a false sense of euphoria as Norway has agreed to hand over the children to their uncle subject to a Norwegian district court accepting the arrangement, larger issues remain, raising disturbing questions. In upholding the applicability of Norwegian laws, Indian sovereignty cannot be subjugated to abdicate the majesty of Indian family laws. The precedent is, therefore, clearly wrong and this may not be a healthy trend for 30 million NRIs who live in 180 countries. In matters of local civil and criminal laws, Indians may have to follow the law of the foreign domicile, but in matters of personal laws in our homes, the exception of applicability of our family laws must prevail. The sanctity of the personal family laws of Indian communities is overriding.
Countries like Norway, Denmark, Sweden and Finland have stringent state welfare policies for their nationals which empower them to place children in foster homes to live with strangers. The Norwegian Child Protection Services, however, ought not to have exercised such right over Indian children whose religious, ethnic, cultural and linguistic milieu was different and distinct.
In respect of Hindus, i.e. any person who is a Hindu, Buddhist, Jain or Sikh by religion, the Hindu Minority and Guardianship Act (HMGA), 1956, has extra territorial application. It also applies to Hindus domiciled in territories outside India. Thus, the Bhattacharyas carry with them their personal law in their pockets when they live in Norway. Under HMGA, the natural guardian of a Hindu minor is his father and after him the mother. The custody of a minor child under five shall ordinarily be with the mother.
Applying European yardsticks of culture, habits and social mores to the Bhattacharya coouple who profess Hindu religion and cultural practices is not the correct application of the best interests for determining the welfare of the children. An overzealous Norwegian social set-up cannot change the personal law of the parties or usurp the interpretation of the principles of upbringing of Indian children and thrust in on foreign citizens domiciled temporarily in its territory.
The U.N. Convention of the Rights of the Child has been brutally offended in the children being confiscated and put in foster care. The Right to Family Life guaranteed by the European Convention of Human Rights too has been violated. The dilemma is international and the Nordic viewpoint needs to be tested. Forcibly removing children and putting them in foster homes and adoption to foreign parents whilst their natural parents are living are not in the best interest or welfare of the child.
To understand and analyse the root cause of such dramatic measure by the Norwegian Child Protective Services, as claimed by them is that the couple were not bringing up the children properly. They fed the children with their hands and the infants slept in the same room as their parents.
The case clearly reflects Norway’s lack of respect for the possibility that many questions around child care and upbringing may not have definitive answers and therefore a moral basis for passing verdicts about the right and wrong of wide range of parenting practices. Further, CPS’s policing and enforcing strict parenting norms is at the expense of emotional support and empathy. This case also illustrate how, under the powerful mandate of the CPS, malign gossip can suffice to prompt the forcible removal of children from their parents.
In a similar case involving two Polish children, Tomasz and Maria were taken away from the parents and placed in Norwegian foster homes by the Child Protection Services in Stavanger.
The protests came after Russian media have recently run a series of issues about how more and more Russian women living in Norway are deprived of their children. Especially two cases on Russian media were strong enough to mobilize the protestors. One of these news stories featured a Russian citizen, who lives in Norway, whose name is Maya Kasayeva. Her shocking statements took many newspapers’ front pages: “During the court hearings, the judge told me: ‘We give you residence permit, and you give us your son.’ I refused, and then the repressions started.”
The claims in the second case were more outraging. Irina Bergseth Frolova, a Russian woman living in Norway, had found out that her ex-husband, a Norwegian citizen, as well as his friends and relatives, had been raping their four-year-old son. The reports also remind another foster father who was previously been found guilty for child pornography and child sexual abuse in Stavanger.
Berit Aarset, who heads Human Rights Alert, Norway, has called the incident “state kidnapping.” As she puts it, “this is not the first time such a thing is happening in Norway. The legal system favours the Child Welfare Services and they do what they want all the time. Quite often when a Norwegian is married to a non-Norwegian they also do the same thing; they also do this to asylum seekers and in almost every case they say one of the parents has a mental problem just to make their case strong and that is what has happened in the Bhattacharya case too”
In fact, the practices of Barnevern do not only worry Russians and Indians. There is a deep rooted scepticism among local groups towards an increased use of home based measures. The current practices in the Norwegian Child Protection system are not compatible with the UN Convention on the Rights of the Child.
Norway’s Child Protective Service is a powerful body charged with protecting the rights of children living in difficult family situations. But there are reports of too many excesses. There has been a UN report in 2005 which criticised CPS for taking too many children in public care. The number is a striking 12,500 in a small country like Norway.
The statistics show a large increase in the use of foster homes from 2009 to 2010, the use of national supported foster homes increased by 16 per cent. During this period, the total number of children registered in the national Child Welfare Service saw a rise of 7 per cent, and reached a total of 5 700 children in 2010. More children were in foster homes and fewer in children’s institutions at the end of 2010. Approximately 5,700 children were registered in the national Child Welfare Service. Since 2009, this figure has increased by more than 7 per cent. On average there are 4.6 children per thousand (age 0-19) registered in the Child Welfare Service in 2010; a climb of 15 per cent since 2006. Of the 5,700 children registered in the national Child Welfare Service, 59 per cent stayed in foster homes, 23 per cent stayed in children’s institutions and 19 per cent received assistance while living at home.
Thus, undoubtedly there is something deeply disturbing about the superiority and moral authority in the attitude of Norway’s Child Protection Services to child rearing practices of immigrants; it harks back to darker, less civil and long bygone times.
The larger question now is how will Norway come to term with and catches up with developing public institutions that cater not only for their nationals but have inbuilt checks and balances that allow for a better handling of multiculturalism and can help to prevent tragedies like these.
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