The Norway kids dispute is tragic, reflecting the complete failure of Indian diplomacy. The only question arising in the Norway kids dispute is whether the Norway government has any right to keep the kids in their custody. The answer is an unequivocal no.

Let’s analysze the case. The Norwegian authorities have forcefully handed over the custody of one three-year-old and another one-year-old kid to some unknown foster parents after reaching a conclusion, through the Norwegian judicial process, that the kids were unsafe in the custody of their parents. However, the kids are not the citizens of Norway. They were accompanying their parents, who, I believe, were staying on a work visa in Norway. Their visa expires at the end of this month, whereafter they will return but without kids. What could be more tragic? This is nutshell is the Norway kids dispute.

Let us see what the Indian government has done. The Indian government, through their diplomatic channels, tried some kind of a compromise with the Norwegian authorities. The custody of the kids was agreed to be handed over to the kids’ uncle. However, now, after the reported news of a rift between the parents, the Norwegian Child Welfare Services says that the case shall be dropped as the new developments have made it impossible to carry out the hearings in the district court. The Indian envoy to Norway has already cancelled his trip in the face of the new developments.

I need not delve into the merits of the decision taken by the Norwegian authorities. Also, I need not delve into the merits of the Norwegian system, which takes away kids from their parents. The question here is straightforward. Does international law allows the Norwegian authorities to keep children in their custody?

The answer is a big no. The Norwegian domestic law is not applicable in India. Even if the Norwegian law were considered as some kind of International Humanitarian Law, it has no applicability in India as India is not a signatory to the treaty subjecting countries to the International Humanitarian Law. So, under what pretext can Norway keep the custody of kids?

This is not a criminal matter. A bare look at the Child Welfare Act of Norway makes it abundantly clear that the procedure applicable is that of the Norwegian Civil Procedure Code. What Norway is doing would be similar to saying that a Norwegian bride married to an Indian groom and having her matrimonial home in India, can’t leave India without divorce as the Indian domestic law safeguards conjugal rights.

Let’s see the attitude of the Indian government towards this issue. I think it’s pathetic. The Indian government is grossly incapable of protecting its citizens. The only citizens it can protect are the US/UK/Canada based NRIs on a visit to India. And that’s also because the said NRIs get protection from the countries of their preferred residence.

The approach of the Indian government is ridiculous. First, why look for a negotiated settlement at all? Second, what difference does it make if the parents decide to separate? Does it mean that, with the separation of parents, the kids become orphans and thus can be put in foster care?

Indian government is even trying to dissociate itself from the issue calling it a private family matter. What non-sense is this? The separation of parents may be a private matter, but the custody of kids is not. In fact, if any of the partners is not amenable to a separation, the separation also ceases to be a private matter.

The Indian domestic law allows for separation only under certain specified circumstances, which have to be proved in a court of law. In all other circumstances, it becomes a case of domestic violence by default. At the same time, the custody of kids, if any, has also to be decided in a court of law. Both abandonment and forcefully taking away of kids are criminal offenses. If the separation is by mutual consent, an agreement has to be reached wrt the custody of the kids as well. If no agreement is reached, the custody of kids has to be decided independently in a court of law.

The Indian Government, instead of giving precedence to the Indian domestic law wrt divorce, is giving precedence to the Norwegian Child Welfare Act. This is nothing but shirking responsibility. The message is clear. The Indian diplomacy has failed badly. There can be no justification for India not being able to protect its citizens from a tiny-miny country like Norway. Instead of hobnobbing with the saffron terrorists, send your covert agents to Norway and secure the kids.

©2012 Ankur Mutreja