On 12 October 2012, a group of leading jurists, human rights lawyers, academics, child experts and women’s rights activists filed a petition with the National Human Rights Commission in India asking for Indian and Indian-origin children confiscated from their parents by child protection agencies abroad to be repatriated to their extended families in India.
SUMMARY OF THE PETITION
Humanitarian Crisis for Indian children and their families in confiscatory child care proceedings abroad
This is a Petition for the National Human Rights Commission to recommend that the Government of India establishes a formal and transparent mechanism for the return of Indian children caught in confiscatory child care proceedings abroad to their relatives in India, instead of being left in foreign state institutions or foster care, or being given away in forced adoption abroad.
Background: Humanitarian Crisis
Children confiscated under foreign care proceedings face a future deprived of family life, separated even from their siblings in foreign state institutions or foster homes, or being placed for adoption in families having no links to their culture of birth.
The cases of the Bhattacharya family in Norway and the Saha family in the United States of America reveal that even Indian citizens on temporary stay in foreign countries are subject to the jurisdiction of confiscatory child care laws. After children are confiscated, parents are given minimal visitation rights: as low as two hours a year. Once parents who are foreigners lose their right to stay on in such countries, their children who are in state care lose even this minimum access to them.
The Norwegian care proceedings in the Bhattacharya case, reveal a shocking absence of any justification for the extreme step of permanent confiscation of the children from their parents and the violation of basic human rights of both the parents and the children in that case.
Information gathered by the petitioners indicates that this situation is not exclusive to the Bhattacharya case, or to the Norwegian child care system. There appear to be serious and systemic violations of the human rights of parents and children in confiscatory child care proceedings in countries of the developed world including in Northern Europe, the United Kingdom and the United States of America.
Despite the drastic nature of this form of State intervention, confiscatory child care proceedings in the developed world are almost entirely free of the usual checks and balances against the misuse of State powers. Case after case has been reported of the low threshold for confiscation of children from parents; the absence of a fair hearing to parents; cultural bias in evaluating parenting practices; confiscation being ordered by lay tribunals having no legal expertise; conflicts of interest arising from monetary incentives for care agencies to take children into state care, place them in foster homes or give them up for forced adoption; and confidentiality laws serving to protect courts and care workers in these child care regimes from public scrutiny and accountability.
Legal Basis for Intervention: Right of Return
Under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, Indian children abroad have a right of return to India, a right to family life with their extended family and a right be brought up in their culture of birth. These International Covenants enjoin all States Parties to give the widest possible assistance to the family as the basic group unit of society and also calls upon all States Parties enter into joint arrangements to facilitate the enjoyment of cultural rights of all peoples. Under these International Covenants the Government of India is bound to institute mechanisms in co-operation with other States Parties for the repatriation of Indian children as a measure of protection of their right of return, right to family life and cultural rights.
Having done no wrong, children confiscated in care proceedings abroad are entitled to the enforcement of these rights. Intervention by the Government to facilitate their return to India is the only chance such children have of retaining their heritage and preserving their family ties.
Need for systemic mechanism for intervention
We appreciate the humanitarian intervention of the Government of India in the case of the Bhattacharya family of facilitating negotiation with foreign authorities for the release of the confiscated children to their family in India.
However, the absence of a formal and transparent mechanism for the Government’s response in such cases offends against the right to equality protected under the Constitution of India which requires that all actions of the State, including those in exercise of executive powers, should not be arbitrary or discriminatory. Families from socially or economically backward backgrounds may not be able to gain the attention of the Government or the public for the plight of their children caught in confiscatory child care proceedings abroad. It is, therefore, critical not to rely on ad hoc intervention, but for the Government to establish a systemic mechanism for dealing with these cases.
Signatories: Justice (retd.) Mukul Mudgal, Former Chief Justice, Punjab & Haryana High Court, Justice (retd.) AP Shah, Former Chief Justice, Delhi High Court, Brinda Karat, Former Member of Parliament (Rajya Sabha), Suranya Aiyar, Lawyer, Sudha Sundararaman, General Secretary, All India Democratic Women’s Association, Jyotsna Chatterji, Director, Joint Women’s Programme, Padmabhushan Devaki Jain, Feminist Economist & Author, Renuka Mishra, Educationist, Feminist Activist & Founder, Nirantar, Jaya Srivastava, Chairperson, Jagori, Leila Passah, National General Secretary, YWCA of India, Dr. Ranjana Kumari, Director, Centre for Social Research, Kalyani Menon-Sen, Women’s Rights Activist, Annie Raja, General Secretary, National Federation of Indian Women, Gauri Choudhary, Director, Action India, Sehba Farooqui, Secretary, All India Democratic Women’s Association, Delhi, Indu Agnihotri, Director, Centre for Women’s Development Studies, Rita Panicker, Director, Butterflies, Child Rights Organisation, Dr Vasanthi Raman, Convenor, FORCES-CWDS Network, Dr. Shalini Grover, Senior Research Fellow in Sociology, Institute of Economic Growth, University of Delhi, Nandita Rao, Lawyer, Shilpa Phadke, Sociologist, Tata Institute of Social Sciences, Trideep Pais, Lawyer
With Letter of Support from Dr. Girija Vyas, Member of Parliament (Lok Sabha) and former Chairperson, National Commission for Women
Petition Co-ordinator: Suranya Aiyar
The full text of the petition is NHRC Petition 121012
The Case Study on the Confiscation of the Bhattacharya Children in Norway is here.
The list of materials attached with the NHRC Petition is here. Some of the links have been changed since the petition was filed. We have posted updated links to them on this website, you can search for them by title.