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Risks of granting the state full powers to confiscate children

LifestyleRisks of granting the state full powers to confiscate children

Policy measures that allow government authorities to take children into state custody in the name of curbing human trafficking and illegal migration can be counterproductive and even dangerous.


In the first part of this paper published last week, we discussed the removal of children from illegal immigrants in the USA and India as part of a wider issue of how things can go wrong when you give wide powers to the state to remove children, even when the removals are in the name of child welfare. Examples of this abound in history. The North Americans have taken children from native Indians; Australians from aboriginal mothers; the Argentinian military junta from parents in the resistance; and the Germans took Aryan-looking children from across Europe during the Second World War. These are only some of many examples. In current times, as has been often discussed in this column, immigrant families, minorities and otherwise economically or socially vulnerable communities are disproportionately targeted for child removal by child protection authorities all over the
First World.

In each case, historical and current, the removals are technically legal. Also, in each case, the removals have in their time been justified as child welfare measures—for providing better education and morals to children; for their safety; and for giving them the advantages that their biological parents cannot. In each case, history has judged these removals to have been cruel or vindictive or unethically assimilationist or a case of state-sponsored forced indoctrination or colonial subjugation, or all of these together.

In many instances, governments have apologised to the populations from whom children were taken in the past. But every time the beast of state-sponsored child removal has raised its head again in the same place where it was brought down. Today it exists in the form of the very child protection agencies and removals for the “best interests” of the child that are touted all over the world by rights activists as the gold standard for
child welfare.

The first part of this paper proposed a number of measures to mitigate the possibility of abuse by state agencies regarding children in their care. We discussed the importance of regular contact in the form of visits and mobile communication between parents and children in state care as a way of keeping open a window to the child while in state care. At a minimum a parent should be able to verify in as close to real time as possible whether their child is dead or alive, or gone missing from state care. These are not fanciful concerns. Tens of thousands of children go missing from state care in Western countries every year, many of whom are trafficked into sex work. It is also well known that children in state care die at higher rates than those in the general population.

Even if we build in strong rights of parent-child communication, there is only so much that laws can achieve for the types of impoverished or jailed parents whose children are typically taken into state care. For better accountability, we have to think about ways of allowing access to responsible members of the public to information about individual children in state custody, at least to the extent of verifying their location, presence and medical condition.

We should also take warning from the misuse of confidentiality rules by Western child protection agencies in covering up their own mishandling of children in care. The US Department of Health and Human Services’ refusal to answer specific questions about the migrant children in its custody, especially on claims of the use of drugs to make children compliant, the bizarre practice of stopping crying siblings from hugging each other and the stripping, solitary confinement and tying up of non-cooperative teenagers, is a grave misuse of confidentiality rules by the authorities.

Repeatedly in child protection we see that well-intentioned interventions aimed at any one problem, create a whole new set of problems. An example is the response to child trafficking across the Indo-Bangladesh border.

When it was discovered that minors “rescued” by the Indian authorities at the border were being taken away from state custody by traffickers posing as their parents, an elaborate procedure was put in place for their safe repatriation. In 2015, the two countries signed a bilateral agreement for this. The procedure is for Indian and Bangladeshi authorities to trace the children’s families and hand them over in the presence of co-ordinating NGOs from both sides.

But this long-drawn process for child repatriation is resulting in the anomalous situation of parents being sent back from India while their children remain in Indian custody. In trying to protect smuggled children we are separating genuine families. The 2015 report mentioned in the first part of this paper of the Mahanirban Calcutta Research Group (MCRG) called “On the Edge: Women—Life and Confinement” by Sucharita Sengupta says: “Adding more to the misery is the fact that the mothers and their children are not repatriated together. Often women go back to their home place but children are left behind because of the long process of repatriation.” The US press is reporting similar instances of Latin American mothers being deported without their children for the same reason. There is also the difficulty in verifying the identity of parents as they are typically from deprived backgrounds without much documentation even in their native countries.

The MCRG report says that only 2% of illegal immigrants crossing the
Indo-Bangladesh border are caught by the authorities and even this is by a tacit deal between the traffickers and officials. The figures speak for themselves—official figures for detained Bangladeshi illegal immigrants run into mere thousands while expert estimates of the total number run into crores (3 crore in 2014 according to former Home Secretary and defense expert Dr Madhav Godbole (lecture at Institute for Defense Studies and Analysis)). In response to a Parliamentary Question in 2015, the Minister of State for Home Affairs reported that 1.5 lakh persons are trafficked in South Asia annually for sex trade, labour, forced marriage and organ trade. He went on to state that as an organised crime globally, human trafficking is pegged after drugs and
arms smuggling.

So while immigration debates rage over hard or soft borders, what you may be siding with on the ground is one or other form of human trafficking. It is reported that among illegal immigrants who are caught, the people actually engineering the illegal crossings manage to get let off. Of those being trafficked, a high proportion are said to be minor females, many of whom will be put into the sex work. Some of the minors may have been trafficked by their own desperately poor families even before they got to the border. What is the meaning of repatriation, however carefully managed, for these minors? There is also the question of stateless migrants like the Rohingyas having no country willing to accept them.

The situation in the USA similarly defies solution. The Flores Agreement (discussed in Part I of this paper) and the 2015 court ruling barring children from being held by immigration authorities beyond 20 days were intended to ensure the humane treatment of undocumented minors. But once President Trump decided to prosecute all those caught illegally crossing the border, including families, it had the effect of forcing the separation of children from their parents with much anguish on
all sides.

Those who advocate the exercise of “prosecutorial discretion” in detaining families are being a bit naïve about illegal immigration. Prosecutorial discretion is a magnet for corruption and smuggling rackets at the border. There is a price to be paid for official discretion which is why ordinarily, and contrary to what rights activists are asking for at the US-Mexico border, the entire effort of human rights advocacy is to minimise the scope for official discretion. The problem of exploitation would persist even in an entirely open border—most economic migrants will need to look for work in the blackmarket, whether in below legal wage jobs or otherwise, and would be at the mercy of racketeers and traffickers of all sorts even if they were free to enter the border.

Some of the adults coming illegally to the US-Mexico border have been found to be unrelated to the minors with them. The Flores Agreement recognised this and provided for children to be separated from unrelated accompanying adults. Again, this opens up the possibility of mistakes, children going missing and corruption over separations. But if they are ignored, then again, as at the Indo-Bangladesh border, there is the issue that these unrelated adults may be traffickers. So turning a blind eye to border crossings is not so simple, not even if you want to make it easy for children to enter a country.

President Trump, albeit reluctantly and under public pressure, has passed executive orders for detained families to be kept together at the border. But it is the Flores Agreement, that was the result of efforts by pro-immigration lobbies, that stands in the way. Trump’s efforts to modify the Flores Agreement to allow families to remain together in detention have been rejected earlier this month by the court of first instance. Again, the intention of the court may have been to force the Trump Administration to ignore illegal crossings. But as discussed above this is hardly a healthy or stable border situation from the point of view of child safety.

The effect of the US courts creating a legal standoff by, on the one hand, not allowing the detention of children with parents beyond 20 days and, on the other hand, not denying the state’s right to detain adult illegal immigrants, places parents in the position of having to choose whether to risk losing their children to the black hole of state custody with US child protection or going back with their children on the perilous route through which they came, rather than a legal repatriation. Whatever else may be achieved through this, it does not secure the safety
of children.

So while we cannot give up on addressing human trafficking and achieving family reunification and safe repatriation of minors, we should bear in mind that there are no complete solutions and every purported solution is fraught with its own dangers. Perhaps, instead of being ideological on this issue or wedded to policy models and “best practices” we should be wedded to being flexible and practical in our responses. Specifically, in child protection, it is high time that we recognise that state-sponsored welfare measures for children, especially those giving the state the power to take over custody of children, are fraught with risks and should be exercised sparingly, if at all.

Part I of this paper was published on 22 July with the title ‘Separating children from their parents is immoral’

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


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