Child-protection laws in India have become increasingly aggressive and anti-family in spirit with every iteration. And yet, such laws are unthinkingly endorsed by the powers that be.
Last week I described how Indian child protection laws have given overbroad powers to social workers and lay tribunals called Child Welfare Committees (CWCs) to remove children from parents for reasons falling far short of any conventional understanding of child abuse.
These overbroad laws are not solely the invention of the present government. Versions of this model of child protection have been drafted into the law since the Ministry of Women and Child Development was formed in 2006. It was formed by taking the Department of Women and Child Development out of the purview of the Ministry of Human Resources, to be constituted into a Ministry in its own right. From the start its agenda for children was to bring to book what was claimed to be the oppressive and harsh institution of the Indian family, establishing State oversight and regulation of family life in the name of child protection.
One of the first tactics employed by the Ministry was the issuance of exaggerated claims of child abuse in India in a study issued in collaboration with UNICEF and Save the Children, called “Child Abuse India, 2007”. In 2015, I wrote a detailed paper, which was serialised in the Sunday Guardian, on this study’s rigged statistics. Among other tricks, high rates of physical abuse by parents were obtained by expanding the definition of abuse to include pushing and light slaps. You had to dig very deep into the data to discover that most of the “abuse” was light slapping by mothers of their boys!
On sexual abuse, the numbers were jacked-up by expanding the definition of sexual abuse to include viewing of pornography between classmates and friends. Viewing of pornography came in as the highest proportion of “abuse” in the overall sexual abuse figures. The second highest was strangers rubbing their “private parts” during public travel. These figures were used to make the claim of high rates of sexual abuse of children in India. This phoney study was then used as the justification for establishing a child protection regime in India that gave state agencies wide powers to inspect and evaluate families, and remove children into compulsory state care.
So the intention of the Women and Child Development Ministry to establish state surveillance of families and of arrogating to the State the power to take over the custody, not just of orphans and abandoned children, but also of children with parents, was clear from the start. The laws and rules proposed by the Ministry have become increasingly aggressive and biased against the family with each iteration. These laws have been unthinkingly endorsed by Parliament and the public which has only the haziest idea of their details.
As discussed last week, the forced removal of children is envisaged under the Juvenile Justice Act, 2015, (J.J. Act), the Juvenile Justice Rules, 2016 (“J.J. Rules”) and the Model Foster Care Guidelines, 2016 (“Foster Care Guidelines”) not just in cases of abuse, but for the much lower and subjective standards of parental “fitness” and “verbal” and “emotional” abuse. The question arises as to how it is proposed for child protection workers and CWCs to assess these things.
We have some hints of what “emotional abuse” could mean in practice in India from the 2007 study on child abuse mentioned earlier. This study classified as “emotional abuse” such things as shouting, name calling (a look at the questionnaire used in the study’s survey revealed this assessment was made by asking children whether anyone called them “budhu” or “pagal”) and “comparison” with siblings or other children.
If the questionnaires and training given to social workers enlisted for surveying Indian families for the study of 2007 are any indication of how case workers, NGOs and District Child Protection Units (DCPUs) are going to be assessing families, then we are in deep trouble. Findings on emotional abuse by sibling comparison were based on questions such as “have you ever been upset/angry” on being compared with other children “by your father or mother”; “in your family have you ever been treated harshly, in favour of other children”. Findings of emotional abuse were made by asking children “have you ever been shouted at and humiliated [by your mother]?”. The absurdity of this line of questioning becomes clear if you repeat the same rather harsh-sounding English question in Hindi—“kya aapki ma chillati hai? Aur phir aapko bura lagta hai?” (Note that the study recorded that nearly half the respondents were Hindi-speaking.) I cannot think of a child in North India who would not answer “yes” to that.
Indicators of physical abuse as listed in the study also give a horrible portent for what the Ministry is going to be training and advocating to child protection workers as a basis for making a finding of abuse. “Indicators” of a physically abused child were said to be “plays aggressively”, has “little respect for others”, but, and this shows how nonsensical this theory of “indicators” is, also the opposite: “overly compliant, withdrawn, gives in readily and allows others to do for him or her without protest”. Indicators of parents being abusive included “economic stress”, “highly moralistic” and “easily upset, have a low tolerance for frustration”. As anyone can see, these are highly subjective assessments. Furthermore, even if made correctly, they cannot reasonably be taken as establishing that the child is abused or that the parents are abusive.
In our foster care rules, the dice is further loaded against the biological parents by allowing foster carers to adopt foster children that are with them for over five years. The Foster Care Guidelines go so far as to say that foster parents have a “right to adopt” foster children. When the Foster Care Guidelines were issued, the Women and Child Development Ministry officials gave statements in the media that allowing adoption of foster children would make it easier for adopters than adoption through the more rigorous and lengthy process of the Adoption Regulations. This is a betrayal of the effort put into the Adoption Regulations to ensure that children are not trafficked to the adoption market and that poor parents are not taken advantage of. By slipping in an additional route for adoption through the back door in the Foster Care Guidelines, the Ministry has also seriously undermined the force of the provisions in these guidelines for reunification of the foster child with its biological family. The adoption-through-fostering route encourages the foster family to look upon foster care as a step to adoption, rather than as a temporary homing of the child pending restoration to the family.
Even family visits between the foster child and biological family have been curtailed. Though the J.J. Act says that parents should be allowed to visit their children regularly in the foster family, the Foster Care Guidelines under “Explanatory Notes on Counseling Biological Families of Foster Children” say “biological families should not be made aware of where a foster family or foster child lives… to prevent negative impact on foster family (e.g. may extort money from foster family)”. This negative attitude towards the biological family speaks for itself.
A close reading of the foster care rules shows that the notion of family has been subtly changed from the common understanding of “family”. Instead of the right of the child to its family, the rules speak of the child’s right to “a family environment”. This is a concept that comes from adoption, and while it may have its logic in the case of orphans or abandoned children, i.e., those who do not have a biological family, or have one that wants to relinquish them, it is not right to make an equivalence between biological families and “any family” when looking at children who have biological families that do not wish to give them up. To be continued next week.
This is the second in a five-part series of articles. Part I of was published on 2 September 2018 with the title, “Juvenile injustice: Dangerous turn in Indian child care law”
Suranya Aiyar is a New Delhi-based lawyer and mother. The “Global Child Rights and Wrongs” series is run in collaboration with her website, www.saveyourchildren.in, critiquing the role of governments and NGOs in childpolicy