This note discusses the international laws permitting the repatriation to their country of origin of children removed in foreign countries by child services from their parents.
Need for Repatriation
Such children typically have no relatives other than their parents in the foreign country. They are placed in foster care with strangers in the foreign country. Often siblings, even twins, are separated.
Such children are in a doubly tragic position. Firstly, they are consigned to growing up without the love and affection of family, with no one but a state-paid foster carer. Secondly, they do not even have bonds of community with their foster home as they usually come from a totally different ethnicity, culture and faith to the fosterer’s.
This is a bleak existence for any child. Even abroad, kinship placement is preferred over foster care, but such children have no kin other than the parents from whom they have been removed in the foreign country.
Foster care is also not a very safe option for children in foreign countries. Foster children have poorer outcomes on health, education, school drop-out rates, drug and alcohol abuse and teen pregnancy than the general pool of children. They also have high rates of falling into crime and prostitution. The situation is so bad that it is known in the child protection field as the “Foster Care to Prison Pipeline” and the “Foster Care to Prostitution Pipeline”.
A foreign child also finds itself without status in the fostering country on attaining majority, while at the same time being totally alienated from its home country.
For all these reasons, it is preferable for a child to be placed with family members back in his or her home country, rather than to be left to its fate in foreign foster care.
Governing Laws
Relevant international instruments:
- The United Nations Convention on the Rights of the Child
- International Covenant on Civil and Political Rights, read with General Comment 19 and General Comment No. 27 of the United Nations Human Rights Committee
- International Covenant on Economic, Social and Cultural Rights, read with General Comment No. 21 of the United Nations Committee on Economic, Social and Cultural Rights
- United Nations Convention on the Prevention and Punishment of the Crime of Genocide
- The Vienna Convention on Consular Relations, 1963
Repatriation can be considered by any state authority where this is in the child’s best interests
Under Article 3 of the United Nations Convention on the Rights of the Child (UNCRC), the primary principle in all actions concerning children by any court or state agency is the “best interests of the child”.
This means that any child services authority or family court in any country, and at all times, has the power to consider repatriation of a foster child to its home country, if this would serve its best interests.
Child’s ‘Right of Return’ to Country of Origin
Such children also have a Right of Return to India under Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) which states that that no one shall be arbitrarily deprived of the right to enter their own country.
General Comment No. 27 (GC/27) to the ICCPR says in paragraph 19 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).”
Child’s Right to Family Life; Recognition of ‘Extended Family’ under international laws
The UNCRC recognises the need of a child to be raised in a family environment. It states in its Preamble that:
“the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
…..
the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding”
The family has also been recognised in Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in Article 23(1) of the ICCPR as the “the natural and fundamental group unit of society”.
“Family”, includes “extended family” under Article 5 of the UNCRC, which states that “States Parties shall respect the …..rights and duties of ….. the members of the extended family” of the child to enable the child to exercise its rights.
The concept of “extended family” is also recognised in paragraph 2 of General Comment No. 19 (GC-19) to the ICCPR, which states 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 importance of the involvement of family in a child’s life is also recognised in Article 10(1) of the ICESCR which enjoins State parties to give the “widest possible protection and assistance to the family”.
Child’s Right to Preservation of its Culture, Identity and Nationality; Child’s Right to Grow in its Community of Origin
Child services are not able to preserve the identity and culture of foster children when they come from a different background to the mainstream. Foster care was not envisaged for foreign children. It was designed only with native children in mind. If foster care in a foreign country effectively erases the child’s identity, then this is a very serious violation of its rights under international law.
Under Article 8(1), the UNCRC says that States Parties are obligated “to respect the right of the child to preserve his or her identity, including nationality, name and family relations”. The Preamble of the UNCRC says that due account has to be taken “of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.”
Article 30 of the UNCRC states that children belonging to ethnic, religious or linguistic minorities “shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”
It is also the responsibility of the State to respect a child’s faith. Article 14(1) of the UNCRC states that States Parties “shall respect the right of the child to freedom of thought, conscience and religion.”
Under Article 15 of the ICESCR State Parties are under a duty to recognise and preserve the rights of children to take part in cultural life. General Comment No. 21 (GC-21) to Article 15 of the ICESCR states 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” and that children “play a fundamental role as the bearers and transmitters of cultural values from generation to generation.”
This principle is echoed in Article 29 (1) (c) of the UNCRC which states that “the education of the child shall be directed to……(c ) The development of respect for the child’s …..cultural identity, language and values, for the … the country from which he or she may originate.”
Paragraph 54 of GC-21 states that under Article 15 of the ICESCR States are obliged 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. Moreover, denying a child any possibility of growing in its country of origin and changing their nationality or forcing them to assimilate in the fostering country amounts to removing the children of any one group to another group, which is one of the five forms of genocide recognized under the United Nations Convention on the Prevention and Punishment of Genocide (Article II (e)). So a solution for children in foreign foster care is urgently needed.
Under Article 5(h) of the Vienna Convention on Consular Relations, 1963. the sending State is under an obligation to safeguard the interests of minors in the receiving State, particularly when matters of guardianship are involved. So the child’s right to the protection and involvement of the Embassy of her country is well-established in international law.
Repatriation as a legal and compassionate solution
Such a solution in the form of placement with relatives in the home country is clearly indicated in Article 20 of the UNCRC which says that children removed from their “family environment” by the State shall be provided alternate care and “when considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.”