Survey Of 500 Separated Parents | How Did Judiciary Respond To Child Custody Cases During Pandemic?

Over the last one year, Covid-19 pandemic has exposed human fragility and vulnerability of our institutions. A lot has been said and written about government’s allegedly inept decision-making, bureaucracy’s inability to deliver, media’s biased reporting, however, the fourth pillar, that is, the judiciary’s role has escaped scrutiny to the degree it deserves.

Mr. Nelson Mandela once said,

There is no keener revelation of a society’s soul than the way in which it treats its children…

…and therefore judicial response to concerns of children of separated parents reveals a lot about the rot that has set in the judiciary.

It is widely acknowledged that deaths and number of individuals infected by Covid-19 does not reflect the true extent of havoc created by the pandemic, since a much bigger issue is that of looming mental health epidemic within children due to lock-downs, closure of schools, fear of infection / death, break in continuity of care & learning, missing of significant life events, lack of security & safety etc.

In a study by KGMC, Lucknow (India) titled “Impact of COVID-19 and lockdown on mental health of children and adolescents: A narrative review with recommendations”, the psychologists state

In one of the preliminary studies during the on-going pandemic, it was found younger children (3-6years old) were more likely to manifest symptoms of clinginess and the fear of family members being infected than older children (6-18 years old). Whereas, the older children were more likely to experience inattention and were persistently inquiring regarding COVID-19.

Although, severe psychological conditions of increased irritability, inattention and clinging behaviour were revealed by all children irrespective of their age groups (Viner et al., 2020a). Based on the questionnaires completed by the parents, findings reveal that children felt uncertain, fearful and isolated during current times. It was also shown that children experienced disturbed sleep, nightmares, poor appetite, agitation, inattention and separation related anxiety (Jiao et al., 2020).

While the APA (American Psychology Association) issued an advisory;

As during the formative years of life, the role of parents is very crucial, any disruption in the form of isolation from parents can have long term effects of perceived attachment of the child… The children may develop feelings of sadness, anxiety, fear of death, fear of parents’ death and fear of being isolated in the hospital which may have a very detrimental effect on their psychological development (APA, 2020; CDC, 2019; Dalton et al., 2020).

Indian Judiciary’s Response

The response of the Indian judiciary during Covid-19 pandemic was extremely disappointing and showed complete lack of understanding of child psychology. Hon’ble Supreme Court of India had the opportunity to rise up to the occasion and provide detailed guidance, since at least 2 PIL’s (Public Interest Litigations) were filed before it. However, the Supreme Court showed very poor appreciation of ground realities and asked aggrieved parties to approach family courts.

Similar was the response to PIL filed in front of Calcutta High Court. It is not just the dismissal of PIL’s but the manner in which it was done, without any application of mind or consultation with child psychologists, which reveals a far greater issue of utter insensitivity of judiciary towards voiceless children!

We (BambooTree Children’s Foundation & Child Rights Foundation) conducted an online survey of 500 separated parents and of those who had approached the family courts / High Courts during the pandemic;

• 63% of these applications are still pending (as of Mar-Apr, 2021) and it’s not that HC & SC were not aware of pendency of 3.5+ Crore (35 Mn) cases when the courts were working at full capacity
• 88% of the children have not met their non-custodial parent for the past 12-16 months, i.e. at a time when they were anxious, sad, scared and thus needed their parents the most
• Even amongst the applications adjudicated, 55% of the children were granted a chance to speak to their non-custodial parent once a week for 10-15 mins, though it is beyond comprehension as to why virtual interaction between a parent and a child during Covid pandemic, when children are at home, needed to be rationed to once a week or for 10 mins!

 

Parental Alienation, i.e. tutoring / brainwashing / planting of false memories by one parent in order to compel the child is a unique and particularly severe form of child abuse. One of the most important pre-requisite for alienation to set in is relative isolation of the child from the rejected / targeted parent. This is well recognised by our courts, however, in the past one year, lakhs of children have been ‘isolated’ due to the insensitivity of the courts and thus will pay a ‘psychological price’ equal to physical & sexual abuse of children.

Jurisdictions Other Than India

It is enlightening to compare this with other jurisdictions who truly value their children. UK government exempted separated parents travelling to meet / pick-up or drop their children even during the severest lock-down, while Supreme Court of Minnesota (also Kentucky, Texas & most state Supreme Courts of USA) passed an order continuing pre-pandemic parenting time schedule in all cases with provision for strictures for parents who use the pandemic as an excuse for denying the child time with other parent.

This gross dereliction of duty shown by our judiciary towards children of separated parents during the pandemic is likely to create a mental health epidemic amongst children and adolescents in the coming years. It is extremely unfortunate that even a body like NCPCR did not bother to advise the judiciary, commission a study or issue any advisory regarding the same.

Let’s hope, the judiciary can learn from its mistakes and compensate by providing a competent child psychologist in each family court and ensure enhanced parenting time for children with their non-custodial parent.

About the Author

Dr. Rakesh Kapur is the Co-Founder for BambooTree Children’s Foundation. He can be reached at bambootreeorg@gmail.com

*Views expressed by the author are his own

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