This article was first published on 8 October 2017 by the Sunday Guardian with the title Balance the law with social reality for better child welfare as part of their collaborative series with us called ‘Global Child Rights, and Wrongs’.
How long does a human offspring need a parent or a family? Till 18, till 21 till 25? Or is it till the day they die?
I think it’s till the day we die.
I remember my 70-year-old mother distraught beyond belief when my 92-year-old grandmother passed away. I am orphaned, she said! Can an adult be orphaned I thought? Can a 70-year-old be a child? And the answer was –yes.
The reason State Institutions seeking to replace families to provide child care has failed is because the premise of the model was faulty, which is that a child stops needing a parent when they are old enough to, say, vote or work. The second faulty premise is that a human offspring merely needs the physical wherewithal of food, shelter and education, leaving out the essence of being, which is a sense of belonging.
As feudalism gave way to capitalism, the community broke down into individual family units or just individuals, even the smallest imbalance in the health or economics of the parents, or parent of a child could leave the children vulnerable. Child rights jurisprudence, based on individualism developed the concept where the State simply lifted the child into institutionalised care, thus isolating him from normal social bonding. Providing the parents support, in terms of housing, money and / or rehabilitation or counselling was suspected as an option, because it smelt too much like socialism.
What this system failed to recognise was that a human being needs care and support their whole life. The bond of parenting and family supports you through your whole life, giving you a sense of happiness and fulfilment. No institution, however good, can give you a hug, come over for Christmas, and tell your children stories about your childhood.
Fortunately in India, we continue to be a predominantly agrarian economy and the community still plays a strong part in child care. While there are several child care issues on account of acute poverty, misogyny and patriarchy, which devalue children in general, and the girl child in particular. However, there is a strong sense of belonging both to the family and the community, which enables people to survive through very dire circumstances in life from famine, to loss of a child. It also enables people to share and enjoy the simple pleasures of life, like festivals and marriages.
It is for the first time in the year 2000 with the amendment of the Juvenile Justice Act that the State in India stepped into the lives of families. The Act provided for every district to have a Child Welfare Committee. These committees have been empowered to take any decision that they consider to be in the welfare of the child, overriding even the wishes of the child and the parents. The Juvenile Justice Act has also introduced the concept of foster care to the law in India, which up until this time only provided for the concept of guardianship and adoption.
As a Family Lawyer, and in my capacity as the Additional Standing Council for the State of Delhi, I have observed that both Child Welfare Committees and Courts, endorse keeping the child with the family as the first option. The decisions are normally to reinforce the family rather then to separate the child from the family. However, unfortunately, there is no mandate in the law to suggest that this should be the first option. It is merely the current social conditioning of the decision-makers.
I have also observed that often teenage children who run away from home, within weeks of staying at a State-run institution, choose to return to their parents, and are allowed and encouraged to do so. Acknowledging that often the problems are not irreconcilable, but circumstantial.
It is time we reconsider the role of the State in the life of a child. It is also time that we as a community step up to make our world such that the only VIPs are children. Their vulnerability has to be eliminated by social change, not by locking them up as if they had committed a crime, only to be returned to a world which they don’t know how to live in, having been deprived of a support system that they would have built in their childhood.
Nandita Rao is a New Delhi-based lawyer, with a special interest in matters of women’s rights and social justice.