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Juvenile injustice: Dangerous turn in Indian childcare law

CultureJuvenile injustice: Dangerous turn in Indian childcare law

By granting extra-legal powers to Child Welfare Committees, the latest foster-care laws in India have set a dangerous precedent, surpassing the most draconian of child-policy models followed in the West.


Did you know that under the latest Indian foster care laws, any child can be picked up by anyone and declared to have unfit parents by tribunals that are not even courts, called Child Welfare Committees (CWCs)? Did you know that these children can be compulsorily placed in foster care or institutions till the age of 18? Did you know that even if a child is found lost and his parents are traced, the CWC can unilaterally decide not to
return him?

And what is the CWC? A 5-member panel chosen from the public on ad-hoc appointment. The panel is given the powers of a court, but is not a court. It has no judges. A lawyer or retired judge can become a member, but it is not mandatory to have them on the committee. The only requirement is that members be from a child-related field like a teacher or paediatrician or a practicing professional such as a “sociologist”, presumably this means an academic, or psychologist. This is the casual manner in which the power has been given under the Juvenile Justice Act, 2015 (“J.J. Act”) to unilaterally and permanently confiscate children from their parents—probably the most drastic state power conceived of, other than the death penalty.

This goes beyond what even most Western countries are doing. In most Western countries you need a judge’s order before the state can take over permanently as super-parent. Only Scandinavian countries like Norway have lay tribunals deciding such a serious matter as the forced removal of children from their families, and we have seen the inhumane consequences of allowing this easy taking of children by the state.

Most people in India, and I am sure this includes most of the Parliamentarians who passed the J.J. Act, would think that child protection and foster care are measures for orphans and abandoned children. No one would dream that while we are looking in horror at the separation of children from their parents for “hand feeding” in Norway and to punish undocumented immigrants in Trump’s USA, that our own government, spearheaded by none less than the Ministry of Women and Child Development, is setting up a system that would permit the unilateral removal of children from their parents by petty district-level government officers and random NGOs, subject only to the approval of the district CWCs, which are not even courts.

The wording of the Model Guidelines for Foster Care, 2016 (“Foster Care Guidelines”), which the Ministry is asking all States to adopt, leaves no doubt that the separation of children from their biological families is high on the agenda. The very first point in the Foster Care Guidelines describing (in Annexure G) the “challenges” of being a foster parent says “separation from family is one of the most upsetting events that can be experienced by a child”. Guideline 2.2.4 talks about counselling the child for “separation from a biological family due to difficult circumstances”. Guideline 2.9(v) says that the consent of biological parents for foster placement need only be taken where “relevant and necessary”.

What makes matters worse is that forced removal of children is envisaged not just in cases of severe abuse or neglect, but for the much lower and subjective reasons of parental “fitness” and “verbal” and “emotional” abuse.

The investigation process regarding children is laughably casual and unprofessional. Under the Foster Care Guidelines, the investigation is to be conducted not by police officers or even government officials but by NGO workers, sociologists or psychologists. NGOs have been given vast police and confiscatory powers. All they have to do is to get registered with the District Child Protection Unit (DCPU) to be given full powers to intrude upon families and recommend their children for removal.

In addition, the DCPU, which consists of government officials, has been given the dubious task of surveilling children for “vulnerability mapping” (r. 2.2.1, Foster Care Guidelines), maintaining data bases of children and targeting them and their families as “at risk” (r. 85(1)(vii), JJ Rules). These powers are given without any consideration of the child’s right to privacy or the restraining requirements of a search or arrest warrant from a court. As in the out-of-control child “protection” systems of the West, the child targeted has less protection from state misuse of power, overzealousness or mistakes than the worst type of criminal.

These are not exaggerated concerns. The potential and, indeed the incentive, for unjustified intrusion and harassment of families in the guise of child protection investigations is real. For instance, Form 43 (r. 69(H)) of the J.J. Rules requires in respect of children proposed to be placed in Child Care Institutions that case workers report on the “religious activities” of the child and family. Form 22 (r. 19(8)) of the J.J. Rules for children proposed for foster care also requires a report on the family’s “attitude towards religion”. Questions listed in Form 43 include what kinds of “associations” and “groups” the child may have made; details of associations with any religious group; “attitude” of said group; whether it “respects social norms” or is “interested in violating the norms” or is “impulsive in violating the rules”.

These so-called investigations give case workers the power to record intimate findings about the child and family dynamics based on nothing but their opinions and the hearsay of neighbours, teachers and so on.  No forensic, investigatory or legal analysis seems to have been considered necessary. Forms 43 and 22 of the Foster Care Guidelines merely require the case worker to tick off whether the relationship between family members was “cordial” or “not cordial”; whether parental care of the child was “over protective”, “affectionate”, “not affectionate”, or one of “rejection” (as if these are sufficient grounds to contemplate the permanent removal of children from families); and whether the child was “abused” or “ill-treated”.

For anyone for whom the references to “abuse” and “ill-treatment” conjure up horrific images of incest or battery, please recall, as noted above, that abuse categories include “verbal” abuse and, under r. 7(C)(iii) of the Foster Care Guidelines, “emotional abuse”. It is this latter category that is resulting in the most unfair decisions by child protection agencies in the West.

Children, even newborns, in Western countries, are removed where there is no harm or imminent danger but the assessment of “risk of future emotional harm”, a formulation much in vogue in the child protection system of the United Kingdom; or “attachment disorder”, a favourite phrase of Norwegian child protection workers. These assessments are based on esoteric and contested psychiatric or sociological theories. For instance, attachment disorder is assessed based on the type of eye contact between mother and baby. Risk of future emotional harm is based on the Intelligence Quotient (IQ) or personality of a parent. All of this comes under the broad heading of “emotional abuse”. Is this where we in India want to be headed?

This is the first in a five-part series of articles, to be continued next week

Suranya Aiyar is a New Delhi-based lawyer and mother. The Global Child Rights and Wrong series is run in collaboration with her website, www.saveyourchildren.in, critiquing the role of governments and NGOs in childpolicy


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