Introduction
This note sets out a legal case under international law for foreign children taken from their parents by child protection to be sent to their relatives in their country of origin, so that they can atleast be raised by their relatives in the culture and religion of their birth, instead of being consigned to growing up in institutions or foster homes, or being given away in forced adoption to foreign families. This note relies on the provisions of two United Nations Treaties: International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Please check the ratifications and exceptions under these treaties to see if the provisions quoted below apply to the parties and countries in question. You can find the ratifications and exceptions on the links given above to the treaties.
Discussion
Article 12(4) of the ICCPR provides that no one shall be arbitrarily deprived of the right to enter their own country.
Ordinarily, a child’s right of return to their country of origin is exercised through its parents. However, this is not possible when a child is removed from the control of its parents, as happens in foreign care proceedings. Such a child is deprived of its right of return, unless the nation of origin and/or the nation of domicile intervene on being petitioned by the family repatriate the child to relatives back home. Such repatriation is the only chance these children have of being raised by their kith and kin, in the culture and religion of their birth.
It is useful to refer to General Comment No. 27 of the United Nations Human Rights Committee (UNHCR) in understanding the scope of the right of return under Article 12(4) of the ICCPR. In paragraph 19 of GC/27 the UNHCR has stated that the right to enter one’s own country “includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person’s State of nationality).”
In paragraphs 19 and 20 of GC/27, the UNHCR explains that being born in a country or having formal citizenship of that country is not a necessary condition for the right of return to vest in a person. It is stated in paragraph 19 that the “right of a person to enter his or her own country recognizes the special relationship of a person to that country.” In paragraph 20 of GC/27 it is stated that “the wording of article 12, paragraph 4, does not distinguish between nationals and aliens (‘no one’). Thus, the persons entitled to exercise this right can be identified only by interpreting the meaning of the phrase ‘his own country’. The scope of ‘his own country’ is broader than the concept ‘country of his nationality’. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.”
This means that even a child born to immigrant parents in a foreign country, has the right of return to his country of origin if the circumstances so necessitate. The overriding importance of the right of return is emphasised by the UNHCR in paragraph 21 of GC/27 in these words: “there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.”
The right of return to their country of origin of children confiscated in care proceedings abroad is buttressed by their international law rights to family life and to be raised in their culture of birth.
Intervention to facilitate the right of return of such children is enjoined upon State Parties under Article 10(1) of the ICESCR which says parties are to give the “widest possible protection and assistance to the family”.
The family has been recognised in Article 10 of the ICESCR and in Article 23(1) of the ICCPR as the “the natural and fundamental group unit of society”. Recognition of the family as the natural and fundamental group unit of society under these conventions confers on all children the right to the preservation of their family ties, to be raised in the families of their birth and to be united with their families, wherever this is possible.
In paragraph 5 of its General Comment No. 19 to Article 23 of the ICCPR, the UNHRC has stated that the right to found a family implies the “possibility to….live together” and that further, the “possibility to live together implies the adoption of appropriate measures, both at the internal level and as the case may be, in cooperation with other States, to ensure the unity or re-unification of families…[emphasis added].” “Family” in this context, is not restricted to the members of the nuclear family and may include the members of the extended family. In paragraph 2 of its General Comment No. 19 (GC-19) to Article 23 of the ICCPR, the UNHRC has recognised that the concept of family may differ in different States and may include members of the extended family depending on how the concept and scope of the family is constructed or defined in the society or legal system of the relevant State.
The return to their country of origin of children facing foreign care proceedings, is also enjoined upon the State Parties under their duty to recognise and preserve the rights of children to take part in cultural life as recognised under Article 15 of the ICESCR. In General Comment No. 21 (GC-21), interpreting this provision, the United Nations Committee on Economic, Social and Cultural Rights (UNESCR) has stated in paragraph 26 that the right to take part in cultural life includes the rights of children “to learn and understand cultural values and practices of the communities to which they belong”. In these comments the UNESCR has also affirmed that children “play a fundamental role as the bearers and transmitters of cultural values from generation to generation.”
In paragraph 54 of GC-21, the UNESCR has stated that Article 15 of the ICESCR enjoins upon States the duty to provide “all that is necessary for the fulfilment of the right to take part in cultural life when individuals….are unable, for reasons outside their control, to realise this right for themselves with the means at their disposal.” This inability to participate in cultural life exactly describes the predicament of children confiscated in foreign countries from their Indian families and in such situations, States are called upon in paragraph 54(a) of the General Comments to take such steps as “the enactment of appropriate legislation and the establishment of effective mechanisms allowing persons ….to claim protection of their right to take part in cultural life..”.
The establishment of international co-operation in the form of agreements or other mechanisms that enable the return of children in foreign state care to their extended families in their country of origin would also be in keeping with the duties of the State Parties under Article 15 of the ICESCR as interpreted in paragraph 56 of GC-21 which states that “State parties should recognise and promote the essential role of international co-operation in the achievement of the rights recognised in the [ICESCR], including the right of everyone to take part in cultural life and should fulfil their commitment to take joint and separate action to that effect [emphasis added].” Paragraph 57 of General Comment No. 21 also enjoins upon the State Parties the duty to ensure “thorough international agreements where appropriate” that “the realisation of the right of everyone to take part in cultural life receives due attention.”