I wish to fix responsibility on both the parents, as an interim measure, in view of the fact that the homes of the applicant as well as the respondents provide different sets of advantages (as well as disadvantages) to the child. While the home of the applicant provides the advantage of an affectionate father focussing on a single child, with a devoted grandmother, the home of the respondents provides the advantage of an affectionate mother with two younger siblings of the minor child, available for him to share love, affection and the hard realities of life.

33. But unfortunately, right from the beginning, it was contended by the applicant that the child, who is now aged more than 9 years, is refusing to go with the respondents. According to the applicant, the child is intelligent enough to make a preference and that due to an aversion that the child had developed towards the second respondent (step father), it is refusing to go with the respondents.

In 90% of the cases which I have come to handle in the recent past, every other child refuses to go from the parent with whom he is residing, to the other parent. Unfortunately, in most of the cases, we, the Judges plead helplessness, whenever the children refused to go with one of the parents. This has happened especially in cases where the children are aged more than 5 years. Judges, who are not experts in child psychiatry, tend to believe the views expressed by children in their chambers as amounting to "intelligent preference", though at times they happen to be mere "intelligent manipulations". In U.K., a service known as "Children and Family Court Advisory and Support Service" (CAFCASS) is available, to assess if the views expressed by children could be regarded as "intelligent preference".

40. Sub-Section (3) of Section 17 of the Guardians and Wards act, 1890 prescribes that if the minor is old enough to form an intelligent preference, the Court may consider that preference. But, the weight to be accorded to the preference of the minor, depends upon various other factors. While the intelligent preference of the minor could be one of the several factors, it could never be the controlling factor.

41. Article 12 of the United Nations Convention on the Rights of the Child reads as follows :

"1.States Parties shall assure to the child, who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child; and

2.For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of the National Law."

42. What is statutorily provided under Section 17(3) is what is reflected in Article 12 of the Convention on the Rights of the Child. Therefore, it has become customary for the Courts to speak to the child for a few minutes, especially while deciding interlocutory applications. But, when the Court is confronted with a stubborn child, the execution of a decision to hand over the child to one of the parents, against the wishes of the child, becomes a herculean task.

43. However, if a Court pleads helplessness on the ground that a child of 6 years or 7 years, refuses to go with one of the parents, it would, in my opinion, amount to an abdication of the responsibility that is invested with the Court. If a Court does nothing more, than merely recording the unwillingness of the child to go with one of the parents, the Court would be seen as surrendering its responsibility to the will of a small child. In such an event, the preference that the child makes, would replace the judgment that a Court is obliged to render.

44. Therefore, unable to go solely on the basis of the unwillingness of the child and also with a view to find out the truth, I acceded to the request of the first respondent-mother and passed an order on 2.2.2011, directing the applicant to take the child to Dr.V.Jayanthini, Head of the Department of Child Guidance Clinic attached to the Government Childrens Hospital, Chennai, for an assessment. The purpose of the assessment was to find out (i) if the child has any deep rooted problems in going with the respondents or (ii) if the child was acting under external influences.

The Psychiatrists have made it clear that the first respondent-mother is only an authoritative parent and not an authoritarian parent. Since an authoritative parent is concerned only with the interest and welfare of the child, I am of the view that the first respondent-mother will groom the child into a disciplined, focussed and ambitious person. On the other hand, the applicant who has been found to be a permissive-indulgent parent, may not groom the child as a disciplined child.

50. However, every child needs a combination of both parenting styles viz., an indulgent parenting style and an authoritative parenting style, so that they get the best of both. In most of the homes, which are normal, one of the parents is authoritative and the other, permissive. (Thirty years ago, the father used to be authoritative and the mother permissive, but the scenario has got reversed today). Therefore, in an united and normal home, the children have the best of both, but in broken homes, they have the worst of both.

...

the desire or the wish of a child, cannot be elevated to the position of an intelligent preference. In Rama Iyer vs. Nataraja Iyer {AIR 1948 Mad. 294}, a Division Bench of this Court held that a minor child of 13 years cannot be said to be able to form an intelligent preference and that the minor's opinion, especially when his attitude in refusing to go to his natural parent (father in that case) is induced, is not entitled to any weight at all. Following the above decisions, another Division Bench comprising of P.Govindan Nair, C.J., and S.Padmanabhan, J., pointed out in Babubhai Patel vs. Madavi Patel {1979 (1) MLJ 244}, that the question would always be whether the child is of an age and maturity when it will be able to make an intelligent preference nor that the attitude at that time will be governed by the immediate past, the way in which she was brought up, the immediate attachments and her likes and dislikes at the moment, which can easily be swayed either by too much affection or even by too much of intelligence, which is not in the interests of the child.

57. In Diane Q.BROWN vs. George C.BROWN {362 SC 85 (2004) 606 S.E.2d 785}, the Court of Appeals of South Carolina held as follows:-

"In determining the best interests of the child, the Court must consider the child's reasonable preference for custody. The Court shall place weight upon the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference". S.C.Code Ann. $ 20-7-1515 (Supp. 2003); see also Moorhead vs. Scott, 259 S.C. 580, 585, 193 S.E.2d 510, 513 (1972) (holding the wishes of a child of any age may be considered under all the circumstances, but the weight given to those wishes must be dominated by what is best for the welfare of the children). The significance to be attached to the wishes of children in a custody dispute depends upon the age of the children and the attendant circumstances. See Smith vs. Smith, 261 S.C. 81, 85, 198 S.E.2d 271, 274 (1973). The child's preference will be given little weight where the wishes of the child are influenced by the permissive attitude of the preferred parent. Id. at 86, 198 S.E.2d at 274".

58. The above decision was quoted with approval in William John Payne vs. Shery Payne {382 SC 62 (2009) 674 S.E.2d. 515}, wherein Hearn, C.J., pointed out that "while child's reasonable preference is a factor, it is not controlling". These decisions were based upon one of the earliest decisions of the Supreme Court of South Carolina in Moorehead vs. Scott {259 SC 580 193 S.E.2d. 510}, wherein it was pointed out that "the wishes of a child of any age may be considered under all circumstances, but the weight given to those wishes must be dominated by what is best for the welfare of the children".

59. The decision in Moorehead, was followed by the Supreme Court of South Carolina in Robert B.Smith vs. Clara Susan Smith {261 SC 81 (1973) 198 S.E.2d. 271}. While reversing the decision of the lower Court to place the child in the custody of the father, the Court took note of the fact that the wishes of the child may have been influenced by a permissive attitude on the part of the father. The following passage from the said decision is of relevance:- "The child in this case had been in the custody of the father for some time prior to the hearing in the lower Court. The record strongly indicates that the wishes of the child may have been influenced by a permissive attitude on the part of the father. The report of the Probation Officer of the Family Court, although recommending that custody be given to the father, summarised her view as to the child's wishes as follows: "Robbie expressed a desire to stay with his father, but to be allowed visitation with his mother. He pointed out few negatives as far as living with his mother and his motives for wanting to stay with his father are questionable as pointed out by Linda Smith (the father's second wife). She feels Robbie is given more in all ways from his father now because of the tension of not knowing if Robbie will get to stay with him. Robbie knows this and is able to manipulate both his father and his mother with the circumstances.". Therefore, as pointed out in the last portion of the above extract, if the Court finds that the child is able to manipulate the elders (including the parents and the Court) and that the preference made by the child is on account of a permissive atmosphere created by the retaining parent, it is the duty of the Court to ignore such preference.

A reading of the portions extracted above would show that the objections of a child, whether (i) it be for his/her return to the country from where he/she was removed or (ii) it be for his/her return to the parent holding custody before its removal, has to be tested on the touchtone of the following principles : i. the age and degree of maturity of the child;

ii. Whether the objection of the child has been shaped or coloured by undue influence or pressure directly or indirectly exerted by the abducting parent to such an extent that it requires such views to be disregarded or discounted;

iii. Whether the objections of the child result solely from a desire to remain with the abducting parent, then little or no weight should be attached to the child's objections.

Taking into account all the above, I am of the view that the following interim arrangement would help the child get back to its original position:-

(i) After school hours on every Friday, the applicant shall take the child and hand it over to the first respondent at her residence. On the following Monday, the first respondent shall take the child and leave him at school in the morning. The applicant shall take the child to his house after school hours on Monday evening. In other words, the applicant shall take care of the child from Monday to Friday evening and the first respondent shall take care of the child from Friday evening to Monday morning. (ii) If the child is very adamant and refuses to go to the house of the respondents, the applicant shall take the child to Dr.M.Papakumari, Child Psychologist, who has assured a smooth transition and about which the final report of Dr.V.Jayanthini also contains a mention.

(iii) It is the responsibility of the applicant to ensure that the child co-operates. If the above arrangement does not work out, I may be left with no alternative except to order the child to be admitted to a residential school, in the next academic year, so that the child is taken out of a totally permissive environment.