Indian families of children taken by foreign child welfare agencies should be aware that these agencies do repatriate such children to a kinship placement or foster home in the country of origin if they can be persuaded that India has a child protection system similar to theirs. Below is a description of the Indian laws in this regard which you might find useful.

CHILD PROTECTION LAWS OF INDIA

Legal Framework for Child in need of care and protection:

When the natural parents or guardians fail to provide for the care of children or are incompetent to guard the interest of the child, the State assumes the responsibility for the child. Under the law, such a child is recognised as a “child in need of care and protection.”

The governing act for a child in need of care and protection is the Juvenile Justice Act (Care and Protection of Children) Act. Its provisions were drafted to implement India’s obligations under the United Nation Convention on Rights of the Child, 1989 (UNCRC). Every nation that has ratified the UNCRC is expected to develop a mechanism that would monitor that child rights are not violated and ensure a system is in place for children in need of care and protection.

Such children can be place in state care of various forms including formal and informal kinship care, foster care, residential care, adoption or, if necessary, placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.

CHILD IN NEED OF CARE AND PROTECTION:

As per Section 2 (14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 as amended in 2021 a “child in need of care and protection” includes a child –

• who resides with a person (whether a guardian of the child or not) and such person-
  1. has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or
  2. has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or
  3. has killed, abused, neglected or exploited some other child or children and there is reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person.
• who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or Committee; or
• who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated by the Committee or the Board, to care for and protect the safety and well-being of the child; or

….

(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts;

….

Child Welfare Committee:

Child Welfare Committee (CWC) is a statutory body appointed as the competent authority for all children in need of care and protection.

Structure and Functioning of the Child Welfare Committee:

Under Section 27 (2) and (3) the Juvenile Justice (Care and Protection of Children) Act, 2015 the Committee is composed of a Chairperson and four additional, one of whom must be a woman, and the other, a child affairs specialist.

Under Section 24(4) of the Act, the following qualifications are required to be appointed to a Child Welfare Committee:

• degree in child psychology or psychiatry or law or social work or sociology or human health or education or human development or special education for differently abled children, and
• has been actively involved in health, education or welfare activities pertaining to children for seven years, or
• is a practicing professional with a degree in child psychology or psychiatry or law or social work or sociology or human health or education or human development or special education for differently abled children.

Powers of the Child Welfare Committee:

General powers regarding children

Section 29 of the Juvenile Justice (Care and Protection of Children) Act, 2015 lays down the powers of the Committee which shall include;

• The Committee has complete responsibility for situations involving the care, protection, and treatment of children.
• The Committee may also hear matters concerning the development, rehabilitation, and safety of needy children and providing basic needs and security for the children.

Under Section 30 of the above Act, the Committee has the following functions:

1. Conduct inquiry on all issues relating to and affecting the safety and wellbeing of the children under this Act.
2. To conduct inquiry for declaring fit persons for care of children in need of care and protection.

iii. To conduct placement of a child in foster care;

1. To ensure care, protection, appropriate rehabilitation or restoration of children in need of care and protection, based on the child’s individual care plan and passing necessary directions to parents or guardians or fit persons or children’s homes or fit facility in this regard;
2. To take action for rehabilitation of sexually abused children who are reported as children in need of care and protection to the Committee by Special Juvenile Police Unit or local police.
3. In case of complaint of abuse of a child in any child care institution, the Committee shall conduct an inquiry and give directions to the police or the District Child Protection Unit or labour department or child line services.

Special powers regarding a child in need of care and protection

Under Section 37(1) of the Act, the Committee can pass orders placing a child in need of care and protection in foster care or care of a fit person for long term or temporary care.

The Committee has the power to issue directions to persons in whose care the child is placed, regarding care, protection and rehabilitation of the child, including directions relating to immediate shelter and services such as medical attention, psychiatric and psychological support including need based counselling, occupational therapy or behaviour modification therapy, skill training, legal aid, educational services and other developmental activities, as require, as well as follow up and coordination with the District Child Protection Unit or State Government and other agencies.

The Committees also have the power under Section 37 (2) of the Act to declare a person to be a fit person for foster care and for organising after care support for the child.

Under the Foster Care Guidelines, it is stated that all decisions are to be made to ensure the child’s safety and security, and must be grounded in the best interests of the child.

The Guidelines state that the foster family has the following responsibilities towards the child placed in their care:

• provide adequate food, clothing, shelter and education
• provide care, support and treatment for child’s overall physical, emotional and mental health;
• provide vocational training according to the age, developmental needs and interests of the child;
• support higher education requirements;
• ensure protection from exploitation, maltreatment, harm, neglect and abuse and that child’s whereabouts are known always
• support contact between the child and District Child Protection Unit staff during home visits;

It may be noted that a child victim of any sexual offence is also categorised as a “child in need of care and protection” under the Protection of Children from Sexual Offences Act, 2012 (“POCSO”). The Child Welfare Committee is given the responsibility of deciding the placement and protection and treatment measures for such children.