Modern Child Rights: A Study in the Folly and Arrogance of the Welfare State

Lecture at Jindal Global University by Suranya Aiyar

Goodafternoon. I would like to begin by thanking Professor Sudarshan in absentia. It was kind of him to give me this opportunity to speak to you. I would also like to thank all of you for coming here this afternoon.

I am here to talk to you about Child Protection Services or CPS. These are state authorities in developed countries that are snatching children from normal families for no justifiable reason. And under the aegis of the UN Convention on the Rights of the Child, led by UNICEF and child rights NGOs, all other countries of the world, including India, are being told to put in place the same system.

What does CPS do with the children it removes? They are placed in state-institutions or with paid foster carers. The location of the children is kept secret. Parents are not allowed to see them, except for brief supervised visitations. In countries like Norway, visitation is as low only one hour in six months. Siblings, even twins, are separated, depending on the convenience of the fosterers. The relationship with the family is totally and deliberately broken by the State.

Where adopters can be found, the snatched children are given away in so-called “forced adoption”. Forced adoption is adoption by unrelated persons despite the opposition of the birth family. It is done even when relatives of the children along with the parents come forward to say they will take the children if the parents are judged unfit.

Once adopted, the child’s name is changed, and all contact with the birth family is cut off forever. Parents, siblings and grandparents don’t even know if the forcibly adopted child is dead or alive.

Increasingly, foster care is being used as a waiting period for the forced adoption of the child to another family. Assessments of parental unfitness are being undertaken at earlier and earlier stages, with babies being taken within hours of birth. There has been atleast one very dubious case of a court ordered C-section in Britain on a woman, an Italian national, alleged to have been bi-polar, whose baby was confiscated after the involuntary C-Section, and put up for adoption by British Social Services.

Before we go further, I want to give you a sense of how this operates in practice. Here are a few videos.

[Pause for video showing child removals in Scandinavia and Britain]

What you see here is full state control over the child and the family. The social workers and judges decide, and the police enforce.

The fact that the State is in control is not really what makes this situation unique. We are all subject to the law of the land. The State is always in control. That is the basis on which we are together as a society.

But the fact that the State is in control and can take drastic, life altering, even life terminating decisions, is one of the reasons that human rights advocates ask for laws to be humane – to be compassionate, forgiving and, to, whatever extent possible, stop short of permanently ending or sealing the fate of a human being. These sentiments and these ethics are the foundation of worldwide human rights campaigns against capital punishment, life imprisonment, campaigns in favour of the rehabilitation, rather than punishment of juvenile delinquents, and so on.

But this appeal to compassion, to restraint, to giving second chances, is never made in relation to child protection laws. Is this not surprising? Can there be a more drastic action than to permanently remove a child from its family? The only State action that I can think of which is equally drastic is capital punishment.

For the parents, the confiscation of the child is a kind of frozen death. They are left in a limbo of grief and loss that is in some ways even harder to reconcile with than the death of a child.

For the child, what the State is doing is to rewrite its childhood by cutting it off from its own family and community, making it into a sort of artificial-orphan, whose life shall be lived in state institutions or foster homes. For children given away in state-sponsored adoption, the change is even more drastic. The identity and history of the child is erased by the State, and a new one, that of its adoptive family, is grafted upon it.

So in Child Protection Services we are looking at severe, confiscatory and irreversible State powers. But there is no call from human rights advocates for a gentler response by the State to vulnerable children. Child confiscation is only seen as a benevolent act, giving relief to an abused child. It is not even called “confiscation” – it is called “protection”.

Confiscation is not necessary for child protection. But no one asks why, in providing children a way out of a bad home situation, they also have to be permanently cut off from their families? Why is it necessary to break the relationship? Why not just give the child refuge, without making it lose whatever family it has? Bear in mind that we are not dealing with extreme situations like incest or violence – I mean real violence, not slapping or yelling at your kid. In child protection cases the threshold for confiscation is low.  We are not, and in child protection thinking, we have never been looking only at incest or child battery for which you may say it’s simply not feasible for contact to be continued between parent and child.

From the beginning, child protection advocacy has been concerned with much less severe situations, such as physical disciplining of a child, so-called emotional abuse said to come from feeling unloved or not being given enough attention by your parents, whether the home treats boys and girls equally, whether the food in the family is distributed equally among older and younger children, and so on. So the question is: if we are living in a world where human rights activists are very proud to be asking for a 17 years and 11 months old rapist-murderer to be let off after three years of yoga and book club [this is a reference to the infamous Nirbhaya gang rape case in New Delhi, India], because we should be forgiving and give people second chances, then how is it, that we don’t ask whether it is not a bit extreme to permanently remove children from parents accused of much lessor wrongs, if they are wrongs at all.

In England and Norway it is routine to take children away when there is no sexual or physical assault, and no drug addiction or alcoholism – just nebulous things, such as, what is in England called “risk of future emotional harm” or what in Norway is called “attachment disorder”: the alleged failure of a mother to bond with her child. In the discussion to follow I will be happy to give you examples of what constitutes Risk of Emotional Harm and Attachment Disorder according to CPS.

Let us accept that parents don’t always know what’s best for the child. Actually, this is not a new concept for any Indian mother.  From the moment we get pregnant, the whole world is telling us: eat this, don’t eat that, sit like this, get up like that. Once the baby comes, we have our in-laws, constantly poking their noses, and blaming us for everything about the child from fussy eating to temper tantrums. And whatever the in-laws miss, our own mothers are sure to point out! Sometimes, reading these foreign case workers reports, I have thought to myself – ‘but this is like having your mother-in-law in the house. Nothing you do is right.’

Actually, working on CPS cases, made me rethink this whole business of interfering Asian families. At the end of the day, your mother-in-law, annoying as she may be, also loves the child – she is its grandmother. She has a deep bond and life-long concern for the child – it’s not just a professional interest, like a CPS worker’s. This is a very rich resource for the child and the mother. When this is missing, things can get difficult.

Let me explain. As I got more and more involved with CPS cases, I saw many types of families in the West. Some were middle class and familiar, like mine. Some were pious, hardworking working class families – similar to the families of my maids at home.

But some were also very lonely single parent or nuclear families. Some were two-generation single parent families: single mothers, who were themselves children of single mothers. Very small families, with no relatives to turn to in times of need.

In such families, even a minor thing, like the mother and child getting the flu at the same time, can throw the entire household into chaos. You have cases of a black mother whose husband is at work. She and her baby are ill. She sends the elder kid who is not ill around the corner for groceries. Someone spots the kid wandering alone, and reports it to CPS. CPS comes in. The house is a mess. Ofcourse, the mother has been too ill and busy with the baby to clean up. Neglect is alleged. If the mother says she just needed some help – she’s accused of “inability to cope”. The father is said to be not good enough because he wasn’t around. It doesn’t matter that he was at work. CPS is supposed to look only at the “best interests of the child”. Whatever the reasons, the parents haven’t managed, that’s not in the best interests of the child, so let’s remove them. This is how the “best interests of the child” principle works in practice. And we in India have adopted this pernicious principle in our laws. It’s a wolf in sheep’s clothing. It’s not helpful to children.

Going back to these stressed families: I can see a problem. Not of abuse or neglect, but in the aloneness of these families; the smallness; the lack of a social network. This does make the child vulnerable. If you add substance abuse, or a shady boyfriend in the picture, things look even more precarious. CPS is obviously not the answer. It’s not right to compound the difficulties of these parents and children by tearing them apart. But it made me realise that the interfering mothers and aunties of our Asian families are not such a bad thing afterall. It’s an organic way of having someone keep an eye on things. When a parent needs help, there are people on hand to reach out to.

So let’s accept that parents don’t always get it right. They can’t always manage their children if left entirely to themselves. Let’s accept that families can’t be a law unto themselves. But how is the confiscation of children a rational or proportionate response?

Proportionality and reasonableness in State action. This is another human rights concept that comes from the need to keep the State in check. The response of the State has to be justified by what the citizen has done. A disproportionate response is not justifiable. This is the thinking behind another cherished human right that is enshrined in the Universal Declaration of Human Rights – that no one shall be subject to cruel, inhuman or degrading treatment, or punishment.

This is why I call CPS an example of the folly and arrogance of the Welfare State. People were so convinced that they were on a grand project, Saving the Children, “We Are the World”, that they forgot to check for basic things. No one thought about scrutinizing the child protection model as a form of State action against private citizens, and measuring it by the standards of compassion, restraint, reversibility and proportionality, that human rights otherwise demand of the State.

Child protection was only thought of as giving the child power,  and taking away power from their parents. The awful parents with their proprietorial claims about “my children” as if children were their property. Well, ofcourse they are not. But equally, children are not the property of the State!

Not only did no one question confiscation as being too extreme a response to vulnerable families, even in designing child protection laws and agencies, none of the usual checks and balances for punitive State action were built in.

As I said earlier, capital punishment is the only State action that I can think of that is as drastic as child confiscation. Think about the rights of a person accused of a crime that carries capital punishment. These are rights that stay alive to within moments of execution. There are dramatic cases, where prisoners on death row are let off days before the scheduled execution. We know of stays being granted, mere hours before execution. Judges are woken up in the middle of the night and asked to review cases that have already gone through full trials and several appeals. Nothing like this protection is to be found in laws granting State authorities the power to permanently confiscate children. Convicted rapists and terrorists have more rights than parents and children in the cross hairs of the child protection system.

Here I am going to pause again to show you a video by a woman – a black woman in America from February this year [2017]. This is in Philadelphia where the child protection agency called of the Department of Human Services – DHS.

[Pause for video].

The woman was eight months pregnant when all this happens. You can follow her full story on You Tube and Social Media. The kids are still in foster care.

I chose these videos because it’s interesting to see how the woman confronts the police and DHS. She knows her rights. These are the rights you would expect if the police came knocking on your door. “Where is your warrant?” “Why are you here when I haven’t committed any crime?” “Why are my children being taken away when there is no finding by DHS against me?” “Why can’t you let the children go to my sister, instead of taking them away?” “What is the emergency/what is the imminent danger you suspect my children are facing that entitles you to use a knock down order from the court to enter private property?” I think this woman may have been briefed by a lawyer, or someone with a fairly good grasp of the limits of police action against a free citizen. It was quite a clever tactic to be undressed in the home – a woman alone with her children. She decided with her husband that he would stay outside on the street away from the scene. That’s on another of one her videos. But whoever advised this poor woman, only knew about the limits of police power, not about the unlimited powers of the child protection system. None of what she said applied. It didn’t matter that there was no warrant and no imminent danger to the children. In the last bit of the video you see DHS admitting that there was no warrant and that the only reason they barged in was because the mother wasn’t letting them in. But the mother’s point was that you can come in if there’s good reason, if not then stay off my property. And having broken in, if you found nothing amiss with the children, then leave them alone.

This is what happens when you give police powers to government functionaries without police restraints. Notice that the police officer says: “I don’t need a warrant. This comes under DHS not the Sheriff’s jurisdiction.” So all the protections the woman would have had, had she been a thief or murderer, are not there because she is being investigated as a mother. And this is not just about the mother, or about parents. The children’s rights have also been violated. Children have a right to the safety of their home. To the company of their parents and loved ones. Was it right that they were terrorized and snatched like this just because their mother had some stubborn ideas about her rights? If you follow the rest of the story on You Tube, you will see how the little girl might have been sexually assaulted in foster care – her mother discovered a tear in her vagina, which was confirmed by doctors.

Now we come to another point: Transparency. This is not a fundamental human right, but it’s a very important right that is connected to the fundamental rights of citizens in democratic nations for their governments to be accountable. That is why we have the right to information laws. That is why governments are allowed hide their work from the public only in limited areas – like defense and  diplomacy. But owing to secrecy laws in the CPS system, people don’t get a regular supply of information on how CPS works. Even where the law allows parents to go public, their lawyers advise them not to as this might antagonize CPS. This is what it’s like to defend a case against the State. The State has all the power. And it’s your children on the line. It’s a thoroughly intimidating situation. You don’t dare exercise your rights, even when you have them. That’s why disclosure should not have been a right of the parent, but a duty of the State, when giving it the power to take away children. But again, the Welfare State, in its folly and arrogance, never even thought about it.

Because there is not much awareness about how wide CPS powers are, most people have no idea that when case workers come to their homes, they are effectively under interrogation by the State and the end result could be the confiscation of their children. In criminal law, there are strict limits on what kind of statements the accused makes under interrogation that can be presented in court. There are limits on interrogation itself: some interrogations have to be recorded. For what? To keep the investigation in check. To try and make sure that it’s a fair investigation. None of this protection applies when CPS come knocking on the door. Parents will let social workers into their homes having no idea that they are being evaluated for parental competence.

This takes us to another fundamental procedural defect in the CPS system. The denial of the right to be given notice. Ordinarily, when the State has the power to take action against you, your right to be given notice is written into these powers. So, for example, in criminal cases in the US, when arrests are made, you are told that you have a right to remain silent, that you have a right to a lawyer, and that anything you say can be used against you as evidence in a court of law. Even in civil proceedings, like a tax or licensing violation, you have a right to a show cause notice. What’s a show cause notice? It’s a letter that the State has to write to you, asking you to show cause why they, the State, should not hold you in contravention of such and such law.”

What is the point of these notices and warnings? Why do we give them regardless of whether the person is guilty or innocent? Because we have learnt, and this is again a basic human rights notion, that there are some defenses that all citizens must have when facing the might of the State. Before the State can act against you, you have a right to know: What are you being accused of? What are the consequences if you are found guilty? When should you have a lawyer who can explain all this to you? The reason for giving you this information is that in the adversarial system, you have a right to defend yourself to the fullest extent. And you cannot effectively defend yourself without all this information. But the CPS system provides none of these protections to parents and children.

Next: surveillance and the presumption of innocence till proven guilty. This second principle – the presumption of innocence – is a key protection of the modern justice system, that has been given the go-by in a lot of recent social justice legislation. In the child protection field, this has simply resulted in defeating those who can’t afford the best lawyers. If the idea was to empower the disadvantaged, then in child protection atleast, it has had the reverse effect. Poor children are more likely to be wrongly deprived of their parents than rich children, by a very wide margin, in the CPS system.

As for surveillance: along with social workers, anyone coming into contact with children has been enlisted in the child protection project – doctors, school teachers, nurses, midwives, are all tasked with identifying abuse, and reporting it to CPS, on pain of losing their jobs.

It’s no wonder that the system becomes paranoid and obsessed about the family. It’s like the communist Chinese and Soviets getting children to denounce their parents. This is how the State behaves when it is given totalitarian powers. And totalitarian is what CPS is on a miniature scale. Total power to direct and regulate every aspect of family life. When you do this, you start from a position of suspicion, and you end in a position of downright hostility.

If you think about it, the declining threshold for child confiscation is inevitable in the child protection system. If you tell people, that children who appear to have loving relations with their parents, may well be abused by them; and that if you don’t spot the abuse, it’s your head on the block, it will make you paranoid. A lot of energy go into thinking about: “so…. how do we spot abuse?” And this is how you get one of the most misleading aspects of the child protection system: indicators.

Indicators of abuse. What are indicators of abuse? Just about anything. Every injury or illness becomes a cause for suspicion – “was it the parents who did it?” In the USA, children are taken away for no reason, other than showing up with their parents at hospital with injuries. In the US child protection system, fractures and internal bleeding are an “indicator” of parental abuse.

Anything the child says can trigger off alarm bells. In Norway, CPS inquiries have been started because a child said in school that their parents “believed in God”. Parents being overly moralistic is actually an accepted indicator of child abuse according to child protection texts. UNICEF, in its 2007 Child Abuse Report to the Government of India said “indicators” of abusive parents are: “highly moralistic”; or under “economic stress”; or “easily upset” with “a low tolerance for frustration”. So religious people, poor people and short-tempered people. All are abusive. What a way to seal the fate of a child, make him an orphan just because his mother had a sharp tongue!

The 2007 UNICEF Report gives even less credible indicators on the part of the child for physical abuse: the child “has difficulty getting along with others”, “plays aggressively”, has “little respect for others”, all these are called indicators that the child is physically abused at home.  And the same bizarre Report also lists the opposite characteristics as indicators of physical abuse: the child is “overly compliant, withdrawn, gives in readily and allows others to do for him or her without protest”. This is the sort of mumbo-jumbo that is being taught to University students in child rights courses.

Next: due process: Another fundamental human right is the right to due process: no one shall be deprived of their liberty or property without the due process of law. What is the due process of law? The right to a hearing, to an adjudication. But judicial oversight in the child protection model is inadequate, at best.

In countries like Norway, you don’t even need a court order to remove children. CPS officials have the power to remove children in an emergency, so they just claim an emergency in almost every case, and remove the child. Often there is no official decision for removal at the time of confiscation, this is obtained after removal (I have seen cases where they were obtained a full day later) and are issued without any hearing, or notice to the parents or children by the head of the local CWS. So these are ex parte, non-judicial orders passed by the same authority that is asking for the removal of the children in the first place). There are no consequences for wrongly claiming an emergency. And there are no rules against CPS changing its reasons for removal after taking the children. As the saying goes: possession is 9/10ths of the law. So once CPS has the kids, it’s basically all over, unless you are very lucky.

In Norway, the parents have to apply to a body called the County Committee to ask for their children to be restored. This is not a court, but a lay tribunal. It’s members include  CPS officials (as the “expert members”). So the same entity that removes your children, sits in review over whether that removal was right. It has “lay members” whose qualifications are not even mentioned in the County Committee orders. This practice of having lay members exists even in the District Courts of Norway. These are the courts to which appeals may lie against decisions of the County Committees. These courts too have majority lay members, usually one judge and two lay members and in cases I have seen, the lay members were “early retiree” and “office manager”. So here you have built into the system, in the model democracy of the world, Norway, a complete denial of due process, or the right to a fair and impartial hearing.

What is really shocking is that we in India have gone and adopted this exact system for child confiscation. Pushed by UNICEF, and all these Indian child rights NGOs, who think child protection is a wonderful system, we enacted the Juvenile Justice (Care and Protection of Children) Act. The Act establishes a Child Welfare Committee for every district in India. And these Committees are given the power to declare parents as unfit. And just as in Norway, these are non-judicial, lay tribunals. The only requirement is that out of its five members, one should be a woman and one should be a child expert. In 2015, a new Act by the same name was brought in, but it kept all these provisions. There is an added requirement that CWC members should be practicing professionals, which may include lawyers. But that is optional, and the other professionals mentioned are psychologists and sociologists, and all the rest of these people who are sitting around inventing abuse indicators.

Under our Juvenile Justice Act, there is no requirement on the Child Welfare Committee when declaring a child’s parents unfit, that the parents should be summoned, or given lawyers, or a show cause notice. Absolutely nothing. How could we let this happen? How did we allow Child Welfare Committees to seize children and declare their parents unfit and there’s no court process? There’s not even any judicial, legal or forensic expertise. How did this happen? The folly and arrogance of the Welfare State.

In some respects our laws go even further than the UN Child Rights Convention. The UNCRC gives preference to a child being with its natural family. But under the Juvenile Justice Act of 2015, the natural family has been conflated with foster family, to make this new concept of a “family environment”. This is a very dangerous. This means that under the 2015 law, you don’t even have to show that you first tried a family placement for the child.

The new Act is not all bad – it has some good provisions, better than the previous version. It talks about respecting traditional kinship arrangements and keeping siblings together. It makes provision for sponsoring children, so they can stay with their relatives if the parents are not available, and so on.

But you can see how UNICEF and all these child rights NGOs involved in the drafting of the Act put in language to push their “break-the-family” agenda. Break the family for what? CPS came in the West to make up for the broken family. The West, since World War II, is a vast laboratory for what happens when you break the family. Why can’t we learn from the West, instead of eagerly following in its mistakes?

One last thing I want to put in front of you is the role of money in all this. It was money which pushed everything over the edge in the Western child protection system. Money came in different ways. In the USA, funding of CPS agencies was tied to the number of children in care – this created a systemic preference for taking children and keeping them in care longer than was needed.

In England, under Tony Blair, there was a big drive for Public-Private Partnerships. So you had all these private fostering and adoption agencies being enlisted in the care system. It created a commercial interest in having children in care.

In Norway, so much money was given to foster carers that people started doing this for a living.

Under the Indian Foster Care Guidelines, the proposal is for preference to be given for fosterers who don’t ask for financial assistance. But there is provision for assistance to be given if there are no willing unpaid fosterers. Already, as soon as Menaka Gandhi announced the new Indian foster care policy last year, the international foster care business has started putting out shoots here. There are full page ads in the papers from fostering agencies and NGOs. That means they have a lot of money. There is nothing in the law to bar fosterers from taking money from these people. There is nothing in the law to stop these agencies getting commissions on payments to foster carers. So I predict that very quickly, the commercial interest is going to swarm around foster care in India, like bees to a honey pot. And the government will also be pushed to drop its preference for unpaid foster carers by none other than public policy experts such as yourselves. Much of the job of a public policy professional is budgets. Getting the government to allocate money for this or that. Success is successfully lobbying the government to give money to some project or cause. So money is soon going to enter the picture and then we are running full tilt towards a good old Western-style CPS holocaust in India.

This is why I am here today. To plead with all of you future public policy experts to pull things back. This is one area in which the earlier generation got it totally wrong. Child protection is a terrible idea.

Ofcourse we cant ignore children who suffer abuse. Have a sensible criminal justice system for dealing with sexual abuse, child trafficking, exploitation and real violence against children – not slapping. Make some arrangement for sheltering children whose parents perform these criminal acts against them. But please stop there.

Do not subscribe to grandiose ideas of saving the children. Child protection is the worst kind of social engineering. Taking children away from less-than-ideal families is eugenics. It’s wrong. And having these loosely drafted laws that even allow children to be taken from good families – that is just not acceptable.

And most of all, once you become a public policy professional, please be humble and cautious. When foreigners come to you saying this is how you should do this and that. Give them a cup of chai, show them the Taj Mahal and send them back home. Say thanks for your concern, but we’re going to wait and see how all this works out in your own countries. And keep in mind that it can take a generation for the results to show.

Don’t ever forget that every development intervention has consequences that you could never have imagined in the classroom. It’s good to help people, but don’t be led by ideas and theories. Those are only tools. Be led by your own humanity. We live in different ways, but we suffer and feel joy in the same way. Let that be your compass. Don’t make the mistake that Oscar Wilde spoke of when he said: “Philanthropic people lose all sense of humanity. It is their distinguishing characteristic.” Don’t become like that.

Thank you.