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    Care, Reforms Need to Take Center Stage for Smooth Implementation of Adoption Laws in India

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    Care, Reforms Need to Take Center Stage for Smooth Implementation of Adoption Laws in India

    Given its permanency, adoption requires transparency and must be conducted ethically and must be in the best interest of a child. It is essential that more than one level of gatekeeping is involved before it is determined that a child is available for adoption.

    Prabhat Kumar

    India has a puzzling situation at hand. On the one hand, there are many parents willing and waiting to adopt a child. Yet, on the other hand, there are not many children available for adoption. And this is despite the 2020 World Orphan Report estimating the number of orphans in India at 31 million.

    There are huge number of vulnerable children who need proper care and protection. It is important to get a true picture of number of children who are orphaned/abandoned through a district level survey and update the data regularly.

    Mission Vatsalya (the new avatar of India’s Child Protection Services) also envisages to facilitate implementation of family based non-institutional services including sponsorship, foster care, and after care and all adoption matters as defined in the adoption regulations. One of the guiding principles of the care and protection of children under the Juvenile Justice Act asserts that a child shall be placed in institutional care as a measure of last resort. In this spirit, the Juvenile Justice (Care and Protection of Children) Act and the Model Rules framed there under accord priority to non-institutional care in the rehabilitation and reintegration of children through sponsorship, foster care, adoption and after care in a family and community-based alternatives for care.

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    The Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 that became effective on the September 01, 2022, authorizes the District Magistrate (including Additional District Magistrate) to issue adoption orders and provides that any person aggrieved by an adoption order passed by the District Magistrate may file an appeal before the Divisional Commissioner. There is lot of apprehensions and debate on this issue that is why it is important to understand adoption in detail.

    Policies

    Adoption, according to Juvenile Justice Act means “the process through which the child is permanently separated from his/her biological parents and becomes the lawful child of his/her adoptive parents with all the rights privileged and responsibilities that are attached to the biological child.”

    Given its permanency, adoption requires transparency and must be conducted ethically and, in the best interest of a child. It is essential that more than one level of gatekeeping is involved before it is determined that a child is available for adoption.  Child welfare committees play that role in India.  It should also include the active engagement of social workers who monitor the care of children.

    Likewise, the JJ Act prescribes in detail the process of declaring a child free for adoption and lays down eligibility criteria for prospective adoptive parents. Briefly, a child eligible for adoption includes any child under the age of 18 years who is an orphan – defined as a child without parents or guardians who are unwilling to take care; or a surrendered child – one who has been relinquished by parents or guardians because of their circumstances; or an abandoned child – viz, a child deserted by his/her parents’ or guardian.

    It is important to mention that no child can be adopted unless s/he has been declared legally free for adoption by the district child welfare committee. There is a punishment for illegal adoption in Section 80 of JJ Act. A prospective adoptive parent can also register online on the CARINGS portal of Central Adoption Resource Authority.

    Paradoxes

    The central adoption resource authority (CARA) is a statutory body of ministry of women and child development, government of India. It functions as the nodal body for adoption of Indian children and is mandated to monitor, regulate in-country and inter-country adoptions.  As per the information furnished by CARA, 26,734 prospective adoptive parents have registered with CARA and are waiting for referral for in-country adoption and 1,205 prospective adoptive parents are awaiting inter-country adoption (as on 16 December 2021). As per the information furnished by the ministry of women and child development, the average time taken for prospective adoptive parents to get a referral for children in the age group of 0-4 years is approximately two years.

    The situation of adoption in India can improve and be focused on the care and protection of children who are in difficult circumstances and need a community based and family care.

    At the district level, a meeting chaired by the district magistrate should be held every month to take stock of the situation and to ensure that orphan and abandoned children found begging in streets are produced before the child welfare committee and provided alternative forms of care and family environment after going through the proper individual care plan and social investigation report. It is important to prevent illegal and informal adoptions, if a child is found fit for adoption.

    Long-winded

    In India, CARA maintains data pertaining to adoptions taking place under the Juvenile Justice Act. It is important all forms of adoptions (irrespective of departments and law that enable them) are put on the child adoption resource information & guidance system (or CARINGS), an online platform to bring transparency in the adoption system and curtailing delays at various level. It can monitor all adoptions and keep a check on trafficking.

    It is important to keep track and conduct an assessment on weighing the changes and hence generate the evidence on what is working and what is not working well in the new system. This is also provided for following the recent amendment in the JJ Act and transferring the responsibility from courts to administrative authority (district magistrates and divisional magistrates).

    It has been widely said that when deciding on adoption, courts review documents, ensure necessary procedures have been complied with, and conduct an inquiry of the child and adoptive parents and ensure that adoption is for the welfare of the child. It is evident that the District Magistrates and the Additional District Magistrates and Divisional Commissioners would need a thorough training and orientation on such issues.

    Lastly, adoption related matters are presently being dealt with by two ministries, namely, the ministry of law and justice and ministry of women and child development. Under the government’s allocation of business rules of 1961, the legislative department is concerned with the Hindu Adoptions and Maintenance Act for the purposes of legislation only whereas the day-to-day functioning of JJ Act is monitored by the ministry of women and child development at union level. There is an urgent need to bring adoption laws under a single ministry for better monitoring and implementation.

     

    Prabhat Kumar works on child protection and safeguarding children in Asia.

    Image: Debmalya Seva Mission By Biswarup Ganguly

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