The Kerala High Court recently urged courts to exercise restraint while summoning children while hearing custody battle cases between their parents. .A Division Bench of Justices Devan Ramachandran and MB Snehalatha highlighted the emotional toll court appearances can take on children who often feel like they are being used used as instruments to settle scores between parents."Our experience has shown that children are unwilling to go to Courts, or to be taken there under orders; and many of them have told us, in unequivocal expression of angst, that they feel that they are being paraded as articles, rather than as humans," the Bench observed. .Therefore, the Court directed family courts to ensure that children are not ordered to be physically present in court premises unless it is absolutely unavoidable. If the child must be heard, the Court advised the use of video conference facilities, but also said the interaction should be brief, respectful and structured to avoid discomfort.The Court also emphasised that if children are brought to court, they must be treated with dignity, granted privacy and not be made to wait for long hours."We, therefore, order that, except in exceptional and unavoidable circumstances, the presence of children in Court Halls and in public areas of the Court premises - even for the purpose of counselling, or such other statutory proceedings - be ordered sparingly and with great caution. Even in cases where children are so asked to be produced, every care ought to be employed to ensure that they are treated with the highest amount of dignity and privacy that any child would require; and are not made to wait ad infinitum for the proceedings to get over, but given preference, subject to the workload of the Court," the Court ordered. Additionally, the High Court cautioned against using court premises as a regular site for the exchange of custody. Such exchanges should happen at neutral locations with the consent of both parents unless compelling reasons require otherwise, the Bench said."When it comes to the place of exchange of the child for interim or final custody, we order that the use of the Court premises – which we understand, is essentially to enter such appearance in the registers maintained by it - be avoided, unless exceptional reason is recorded; and a neutral place be thought of – preferably as per consent of parties - since this will, to a large extent, reduce the strain of the children and their fear, which they unfortunately endure on account of being forced to submit themselves to processes, over which they have no control on and which they did not seek," the Court said in its judgment. .The Court asserted that these directions are necessary due to the long-term psychological impact on children who witness parental conflict."Children who see hostility between parents are shown to have lower satisfaction levels in their own relationships in future; with some reporting negative views on family structures, marriage and relationships in general. It is also well documented that smaller children who have gone through high conflict of their parents are less able to solve problems, negotiate interpersonal relationships and have higher levels of social anxiety. They are also known to experience higher fear of abandonment and rejection – which may lead to traits of Complex Trauma and Personality Disorder," the Court noted. .The observations were made in case revolving around a custody battle between the mother of a 9-year-old boy and her estranged husband.A family court had initially granted permanent custody to the mother based on mutual consent.However, later the same was modified by the family court and the arrangement was reversed with the father being granted custody with the mother merely obtaining interim custody for few days.The mother then moved the present appeal before the High Court against the family court order.She contended that the family court order was untenable and contrary to the wishes of the child and that it created excruciating trauma to the child. She insisted that the child is unwilling to go with the father.However, the father’s counsel alleged that the child's aversion was the result of being tutored by the mother..The High Court was unconvinced by the father's contentions and focused on the child's experience in court while analysing the case.It noted that despite efforts to facilitate interaction between the boy and his father, the child clung tightly to his mother, wept inconsolably and explicitly told the judges that he hated being summoned to court. "The child appears to be more terrified and agonized not on account of the proceedings between his parents; but because, he has been caught in between and has been forced to appear in Courts every now and then. He undoubtedly hates this, telling us specifically that he feels dehumanized and stigmatized, being paraded in front of people as a virtual chattel of dispute between his parents. His expression was luculent that he feels let down even by the legal system – which is expected to support and protect him - in being treated in such fashion; and told us, as he was walking away, that he will never enter a Court again, even if called," the Court recorded in the judgment..It observed with concern that the child suffered from Attention Deficit Hyperactivity Disorder (ADHD) and that repeated court visits only worsened his distress.The Court also recorded that a previous assurance by another bench of the Court that he would not be called to court again had been broken, further shaking the child's trust..The Court ultimately allowed the mother's appeal and restored the original order granting her custody.It also directed that custody exchanges be conducted at Mahatma Mandiram, instead of the Munsiff Court at Kannur so as to avoid causing further distress to the child..Considering the emotional distress that the Bench has seen in the children it has interacted with in several such cases, it issued broad directions to family courts asking them to refrain from seeking the child's physical presence unless absolutely necessary..Advocates D Arun Bose, K Viswan and PS Pooja appeared for the mother, while advocates VA Hakeem, Habnam Hakeem, Sivalakshmi K, Alka Maria Martin and Rahul O represented the father..[Read Judgment]
