Policy Suggestions for Child in Need of Care and Protection

The Juvenile Justice (Care and Protection of Children) Act, 2015 (ACT) divides a juvenile into two categories: Child in Conflict with Law (CCL) and Child in Need of Care and Protection (CNCP). We fully recognise that any child, whether CCL or a CNCP is in equal need of care and protection. For this reason, our suggestions focus on the general theme, i.e., to the best interest of a child in India.

We recommend the following changes in the Act, its Rules, and related Adoption Regulations, 2017:

1. The Act doesn’t have any definition of ‘desertion/deserted or abandonment/abandoned’. We believe, it is important to identify and provide definitions for both the terms as it is only after a thorough inspection of the stage of desertion or abandonment the CNCP is at, that we can properly provide psychological, emotional, social, and financial support to the child. In certain reports, it has been found that based on the age, stage, or the kind of desertion or abandonment, different reactions in the child can be witnessed. One common reaction can be through the development of Abandoned Child Syndrome which comprises of various abandonment issues leading way into the adult life of the child. The immediate care required by a child who has been deserted or abandoned, or surrendered by their parents, would be to make them understand that it was not due to any fault of the child.

In terms of the definition, the laws need to focus on activities that may constitute abandonment. Legally speaking, abandonment is said to relate to a property, whereby the owner of the property relinquishes all legal interest vested in that particular property. In case of child abandonment, it reflects heavily on financial neglect, emotional unavailability, overall failure of support for the wholesome development of the child, exposure to injury and so much more. In India, a variety of Acts provide punishment for such abandonment, but none seem to define it in a holistic manner. We recommend a study into understanding abandonment and desertion of a child and defining it for a legal and psychological intervention.

2. The definition of both ‘Child and Juvenile’ needs a reconsideration while dealing with certain categories of children. Firstly, they lack the inclusion of an unborn child. While it is understandable that there are disputes over an unborn child being a ‘person’ according to Indian Laws, we believe it most negatively impacts unmarried females going through unwanted pregnancies. While the Central Adoption Resource Authority (CARA) plays major role in policy formations, we are afraid they are not correctly addressing the issues of an unborn child. Many mothers, with an unborn child, are facing a conundrum whereby giving birth to the child might lead to psychological, physical, social, and emotional trauma to them. In such situations, they choose to either abort or abandon or surrender the child once it is born. Abortion in India is the right of a mother only if she is eligible for medical termination of pregnancy, and trust her, those conditions don’t account too well for unmarried females. In conclusion, there is a very high possibility of an unborn child under these conditions to later end up in the need of care and protection, which is why, if the unborn child is included under the Act now, it can be made legally free for adoption in the womb itself. Though we have protection under the Act in Section 38 for new-born child from a mother who has suffered sexual assault, we need to have a more inclusive overview. Many countries like the US have a robust system of protection for these unborn children. The adoption process is an all-inclusive process where any female, in the legal capacity of the unborn child can declare the child available for adoption and the agencies work to benefit the happiness of all stakeholders involved. We recommend making provisions for the inclusion of an unborn child under the Act.

Secondly, it is in the child’s best interest to be put for adoption as early as possible when entering the system and we should strive to include as many children as possible. The age of innocence which attracts prospective parents should also be seven years. This substitution will create a general parity with the ‘doli incapax’ principle of Indian Penal Code (section 82). We recommend a change in the age for sending the CNCP to a Specialised Adoption Agency from ‘six years’ to ‘seven years’ under section 36 in Chapter VI of the Act.

Lastly, age should also be addressed from the perspective of the principle of equality and non-discrimination. Discrimination in age for CCL can also be observed when a heinous offence is committed by any child between the age of 16 to 18 and they are tried like an Adult. Age in such situation leads to self-incrimination. This is against the general principle enshrined in the Constitution of India and reiterated in the Principles of this Act. We recommend discussion on the various age-related ambiguities and contradictions in the Act.

3. Understanding the importance of the right to being silent when in conflict with law. We believe that children like adults do not understand that they have a right to remain silent in the most adverse situations. While dealing with heinous offences under section 15 of the Act, there is a provision for a preliminary assessment which is explicitly not included in a trial. But this assessment decides if the child will be tried as an Adult. We request a provision of constant legal support to the child as he or she maybe answering self-incremental questions which might result in a higher punishment.

4. For a child who is both CCL and CNCP, there should be separate provisions for balancing the psychology of the child. Sometimes, the victim of the CCL is also a child who later becomes a CNCP. Such child should also explicitly be included under the definition of CNCP under the Act. It gets very difficult to determine which Child Care Institution (CCI), they should be sent to. Also, in some reports it has been found that both, the CCL and CNCP have been found to be staying in same premises. The interlap between the CCL and CNCP makes it even more important for the CCI’s to be compliant with the provisions of this Act. We recommend a deeper inquiry for fieldwork in this area.

5. We request to have a larger debate on the term ‘Parent’. We found that the act lacked a definition for the term ‘Parent’. It is important to have a codified law, where the roles and responsibilities of a parent are laid down. Under Section 11, the person in charge of the CCL will be responsible for the care of the child like a parent. But what all does a parent do? By defining the roles and responsibility of a parent, we shall also be in a way giving meaning to the term desertion and abandonment. This will in the longer run help create an ideal situation where children from all walks of life shall have similar upbringing (doesn’t matter the level of grandness or luxury).

The responsibilities of children towards parents and other senior citizens through the Senior Citizens Act, 2007 are laid down with utmost importance to maximise the welfare, likewise, we recommend a detailed dig into the roles and responsibilities of a parent in India.

On the side note, the personal laws for adoption use the term ‘mother’ or ‘father’ instead of parent and that shows preferential treatment of one parent over the other. We recommend study into the formation of a uniform code for the purposes of adoption.

6. The police are the first point of contact for most children before they step into any CCI. We are fearful that the vast majority of Special Juvenile Police Officers are poorly trained and ignorant to the principles of the Act. The child must be given adequate amount of time to understand its surroundings and respond to the questions. When travel is needed to produce the child before the Committee or Board, there should be special arrangements made to prepare the child for such journey. In this respect, we recommend that there should be regular sensitization trainings and inclusion of a state appointed psychologist and legal professional at the first point of contact in addition to uniformed police personnel, who might unknowingly influence the child’s psychology and memory.

7. The numerous Board Members and Committee members are trusted with the responsibility of handling the child at the worst ever time encountered by them, they are often found to be misusing their positions and responsibilities. The criteria for appointment are very competitive and little too idealistic for the reality. Often these Boards and Committees are not set up at all, do not hear the child in their most distressful time and have incompetent people on board instead of the promised social workers and psychologists. These positions are often filled by the local politicians. We recommend an increase in the total budget for Child Protection in India, to increase their paying capacity to include reputed and credible social workers, sociologist, psychologist, and childcare specialists to these appointments.

8. In the recent times, we have encountered a lot of increase in life threatening situations. Often a child is found to be temporarily separated from his or her parents due to certain humanitarian emergencies, most notable being epidemics, natural calamities, and refugee crises. There is a need to strengthen the collaboration between various stakeholders under the Act with the disaster management task forces to act in the child’s best interest. We recommend, a proactive approach by the Committees to provide psychosocial support activities and initiatives like psychological first aid.

9. We feel that the scope of CNCP must be widened to include all children who need care and protection. Take for example, any child whose parents are going through a divorce may find itself in a situation where one of the parents might have the physical custody of the child but due to the complexity of the situation, they might not be in the headspace to work on the psychology of the child. Such child should also be considered as CNCP. They should be helped to understand the situation with the most genuineness and empathy by a psychologist through compulsory counselling. We recommend state-mandated counselling for such children by including them under CNCP and helping them form their own version of this life-changing incident instead of relying deeply upon his or her parents’.

10. Financial condition is one of the main reasons why parents who can’t support their child and choose to surrender the child to the Committee. We understand that through proper counselling, the Committee might sometimes succeed in changing the decision to surrender. But for an overall reduction in number of CNCP, there should be financial assistance to poverty-stricken parents to raise their kids. Financial assistance has been available for raising girl child in various states of our country under various schemes of the Ministry for Women and Child Development, which we feel should also be gender neutral. These schemes should also help unmarried females in raising their child. According to a report by Aditya Birla Group, the cost of raising a child is expensive in India. This number is unaffordable to a lot of parents, who without help might need to surrender or abandon their child. The Act works on the principle of ‘Last Resort’, so it is important to take this into consideration. And if monetary assistance is not possible, the parents should be provided with work opportunities specifically under various central and state schemes to support their child. But since the Act provides for state government to give fundings for foster care under section 44 and scholarship under section 45, we press deeply on, the financial assistance information should be proposed before the surrender and not after. We recommend launching central schemes for parents who can’t monetarily support their children.

11. Counselling under the Act helps the child process the past and his actions or any other person’s actions towards it, guilt, regret, the abandonment, the loss of parents and more. The important goal is to make them look forward to the future and not dread it. Both the CCL and CNCP due to their condition, would require help. This help should start by understanding their genetics. The counselling under the Act should also include understanding the hereditary of the child. Many important human-wants like happiness are said to be very genetic. So, a study into their parental histories, might provide a broader picture for better rehabilitation. We recommend the substitution of the word ‘need-based counselling’ to ‘compulsory counselling’ in Section 37 of the Act and a study into the family history of the child to understand their specific needs from counselling.

12. Under the recent Amendments Act of 2021, all district child protection units have come under the supervision of an already overworked District Magistrate (DM). The DM is also expected to review the performance of the Committee quarterly, and the powers to deal with adoption orders, CCI registrations and so much more. We recommend a review of the recent amendments giving the DM vast majority of responsibilities, which we are fearful, due to nature of work DM does, might seem like a burden.

13. During COVID-19, the CCI should proactively provide regular medical check-ups to prevent any seasonal or viral as well allergic responses.  Although the Centre and States have come up with well-rounded schemes to support children who are deeply affected by the Pandemic, in many reports it has been found that only a small fraction of these orphaned children are able to manoeuvre around the schemes and take benefit of it. We recommend a child-centric approach be adopted by appropriate authorities in realising the hardships of such children and helping them take the best out of the schemes.

14. Adoption under the Act is full of barriers in terms of age, sex, religion, physical fitness and so much more. All this doesn’t align with one of the most important objectives of the Act, i.e., to act in the best interest of children. The process of Adoption is as it is very excruciating and lengthy and only some who fulfil all the criteria get through the same. Some issues with the process that we find most in need of concern are provision made to keep the child in connection with their roots, culture, and background to help them self-actualize. The process of Root Search under section 44 of the Adoption Regulation, 2017 helps the adopted child look for his or her biological parents. The child either through the Adopted Parents or on his/her own, make a root search to connect with the biological parents. But what we want to emphasise here is the need for an approach where the culture, language, and food of the adopted child is made a part of its life and upbringing. While there is some information available in the Regulation in the context of Authorised Foreign Adoption Agency under section 30, not much is laid down for our country’s Specialised Adoption Agency. We recommend that intra and inter-state adoption in our country should have provisions for inculcating the child’s past habits of food, culture, and language use into its upbringings by adoptive parents.

 

The process of Adoption also reflects some of the most favourite taboos of our country. Adoption of a girl child by a single male is not allowed. People from the LGBTQ+ community are also not allowed to adopt as they still do not reflect as the ideal family under the Law. We recommend Adoption should be made possible for all irrespective of sex, gender identification and physical disabilities.

A recent trend has also shown a higher increase in the number of adopted children being reintroduced into the system from their prospective adoptive parents. Due to issues with adjustments, in the past five years, over 1100 children have been put back with the CCIs. Such return is bound to bring a lot of psychological reaction from the child. Adjusting at constantly changing place with a view to call it home might make the child fearful of indulging in the next process of adoption. So, we recommend that the Committee, Specialised Adoption Agency and the CCI should work to analyse the reason behind such adjustment and working with the counsellors closely to make the child deal with such rejection smoothly before indulging them in the process again.

About Mahak Kansara and Parul Kansara

Mahak Kansara is an Advocate registered with the Bar Council of Rajasthan. She is an alumnus of the Institute of Law, Nirma University, Ahmedabad. She is currently practising in the field of Intellectual Property Rights, Commercial Laws, and Women and Child Rights. She is also a program officer with Law for Aid and Welfare.

Parul Kansara is a B.Sc. graduate from Lachoo Memorial College of Science and Technology, Jodhpur, Rajasthan in Botany and Biotechnology. She plans to undertake her master’s degree with focused research in Molecular Biotechnology. She is inquisitive towards the issues of environment and vulnerable sections of our society.

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The views expressed in this article are the author's own.

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