The power to remove children from their parents can be a formidable weapon of oppression in the hands of the state, and cases of children being taken into state custody are on the rise globally.

 

The scandal over US authorities confiscating children from parents illegally crossing the US-Mexico border has prompted media scrutiny of the treatment of such children elsewhere. This has led to the discovery that similar separations are going on in other countries, including India. For instance, when illegal immigrants are caught at the West Bengal-Bangladesh border, the parents are placed in prison or “Correctional Homes” and the children are taken to separate shelters.

The Indian system is somewhat more compassionate than the US one. Children below six years are allowed to stay with their mothers unlike the US which, until President Trump reversed his policy under public pressure, was even separating infants and toddlers from their parents. Also, unlike the US where the parents never saw their children once removed, in India there is provision, at least on paper, for the children to visit their mothers regularly and the parents have information as to their children’s whereabouts.

Even so, the separation of Bangladeshi children by the Indian authorities is no less traumatic for parents and children than the brutal child removals at the US-Mexico border. A research report published in 2015 by the Mahanirban Calcutta Research Group (MCRG), called “On the Edge: Women, Life and Confinement”, by Sucharita Sengupta documents the plight of Bangladeshi mothers separated from their children when they are apprehended at the Indian border. Sengupta writes that while sending children above six years to shelters rather than leaving them in prison with their parents “could have been a positive step this causes a lot of worry and anxiety to the women concerned because for some of them they don’t get to see their children for long, even after their conviction ends!”

The report goes on describe the case of Bhaduribala, incarcerated in India for years as an illegal immigrant who had not seen her son for four years or her daughter for six. In a news report on an online portal published earlier this month on this subject, a social worker, Mohindul Islam, talks of a case where a child separated from its mother when detained at the border in a group of twenty Rohingyas had died while in state custody. It is hard to imagine a lonelier and more helpless fate than that of this mother and child.

Over the years there have been a number of studies on incarcerated mothers in Indian jails. Those who have their children with them express concern about the unsuitability of jail conditions. Many jails have not made the special provisions mandated by law for women and their children. But mothers with their children outside also speak of their anxieties about them. Experts have tended to look upon child removal into state care as the end of the problem. But, as we will see, the removal of children to state care also raises a whole new set of risks for them which need to be taken into account.

Commentary from around the world on the US child migrant crisis has been emphatic about the trauma to parents and children separated in state care. But, both in India and the USA, it is human rights advocates and activist courts that have engineered the systems under which child separation is taking place.

In the US, the removal of children was the result of the application of the Flores Agreement of 1997, which settled years of litigation on the treatment of minors by US immigration authorities. Under the Flores Agreement undocumented children have to be kept in special facilities, in the “least restrictive” setting suitable for their age and expeditiously released (a later, 2015, ruling said within 20 days) by immigration authorities to relatives and failing them to special shelters. In practice this meant that when Trump decided to prosecute all those caught illegally crossing the border, children had to be removed from parents and put into shelters.

In India, there was a long-standing practice in jails of allowing small children, usually till six years, to stay with their mothers. In 2006, in a public interest litigation, RD Upadhyay vs State of AP and Ors., the Supreme Court took up the issue of children being kept in jails with their mothers and ordered that “no female prisoner shall be allowed to keep a child who has completed the age of six years”. Such children were to be placed with a surrogate of the mother’s choice and, if none was available, in welfare institutions maintained by the state.Notably, in this judgment and the studies it quotes, there is no mention of what is taken as given today—the trauma of separation of mother and child, even though children are still very bound up in their
mothers at six.

The thinking behind both the US and Indian measures was that children are better off being housed in shelters than being incarcerated with their parents. This is not unreasonable, but the episode with migrant children in the US has presented very starkly the dangers of giving unilateral powers to the state to confiscate children from their parents. From the way the Trump Administration initially defended the removal of thousands of children from their parents, it is apparent that they had intended to use child removal as a deterrent to illegal immigration. The power to remove children can be a formidable weapon of intimidation and oppression in the hands of the state.

The first problem with state-sponsored child removals is that the laws for it are exempt from important checks and balances that are present in other parts of the law that give the state confiscatory or police powers. I have discussed this issue elsewhere. Here I will focus on a second problem which is especially relevant in the case of child removals from parents incarcerated by the state-visitation.

Once children are taken into state custody there is no one apart from their state custodians to speak for them. Even the children’s lawyers and the shelters that house them are appointed, paid for, and, in the case of the shelters, licensed or even funded by the state. Relatives are typically not allowed access and, in the case of illegal immigrants, may not be on hand at all. The only outside party that could speak for the child is the parent. But laws that permit the removal of children by state agencies in the US and India, and so far as I am aware in other countries as well, do not provide for parents to complain of mistreatment of their children in state custody.

Even if there were such a right, it would be meaningless unless the parent had knowledge of how the child was being treated in state care. This would require frequent contact between the parent and child. But this rarely happens in practice, especially for children in long-term state custody.

On paper, most child protection systems provide for frequent visitation. In India, the rule is for children to visit their incarcerated mothers once a week. But in reality visitation is much less frequent. Even in relatively highly-staffed and well-funded child protection systems in the West, the frequency of visitations is low. This is owing to a number of practical issues such as finding staff to supervise the visitations, co-ordinating with the schedules of shelter staff or foster parents and, in the case of incarcerated mothers, also co-ordinating with the schedules of the prison officials.

Last month, the Ministry of Women and Child Development submitted a study to the Home Affairs Ministry called “Women in Prisons”, with various recommendations for jailed mothers, including provision for “extended visitation and frequent meetings” with the child throughout the mother’s incarceration. It is good that importance is being given to mother-child visitation. But given the practical realities, and the experience even of rich countries in failing to provide frequent visitation, perhaps we need to acknowledge as inevitable that whatever the rules, frequent visitation does not work out in practice.

A possible alternate route for contact, though its application would remain at the mercy of jail officials, could be the creative use of mobile, digital and internet technology in connecting parents with children taken into state care. Though this is not a substitute for physical meetings, frequent communication would at least allow mothers in the situation of the detained Bangladeshi mothers, and the detained Latin American parents in the US, to know whether their children are dead or alive, or missing from state custody.

I am loath to suggest formulas for child protection. Blind belief in this or that way of doing things is what has made child protection such a heartless and inflexible machine in the West. What I propose is factoring into the consideration of the best interests of the child, not just the risks of the situation in which they find themselves with their parents, whether at home or in jail, but also the inherent risks of their being removed to state care.

Visitation and remote communication between mothers and children in state custody should not be seen merely as a matter of rights or family ties. It should be seen as a necessary measure toward securing the safety of children in state custody and of holding the state to account for the children in its care.

The US reports from the migrant children crisis of children gone missing in state care and toddlers rejecting their mothers on reunification should affirm for us in India the merit in our rule that allows children below six to remain with their mothers in jail despite the inevitable deprivations of a prison environment. This is because apart from the obvious need of small children for their mothers, children below six are also the least able to express themselves and consequently the most vulnerable to being lost or abused in state care. For children above six, a realistic assessment of such shelters and schools as are available upon their separate placement should also be factored into deciding whether separation would be optimal in a particular case.

The less restrictive conditions of the open jail system, which is currently being considered by some state governments for all prisoners, should also be studied from the point of view of enabling children to stay in contact with their jailed mothers.

To be continued next week

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 child policy

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