Child-protection rules in India make no mention of the role of filial ties in the well-being of children, while granting ad-hoc tribunals unlimited powers to confiscate kids and prosecute parents.


In the previous two articles in this series we discussed how Indian foster care laws give 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. We also saw some of the ways in which the foster care system has been set up to disincentivise reunification of the foster child with the biological family.

In this article we shall look at some of the other features of our foster care laws that militate against reunification.

Under our foster care laws, at no stage in the proceeding is the burden of proof on the state to prove that the child has been abused or the parents are unfit. Instead, under Rule 19(8) of the Juvenile Justice Rules, 2016 (“JJ Rules”), when a child is presented before it, the CWC issues an order to an NGO worker or social work-related professional to make out a report on the child in the prescribed Form 22. In this form, the question asked is not whether it is right to remove the child, but whether it will be in the “best interests” of the child to restore it to its parents. So, in effect, the foster care proceeding before the CWC begins not with the question of whether it is justified to remove the child from parental care, but whether it is justified for the child to remain in parental care. Legally speaking this is a dramatic reversal in the usual burden of proof. The rule, and an important one to keep a check on overzealous and mistaken state officials, is that when the state seeks to exercise confiscatory powers or accuse anyone of wrong-doing, the burden of proof is on the state to prove its allegations. But in foster care proceedings under the JJ Rules it is for the parents to prove that they have not abused their child.

This is unprecedented even in the Western child protection laws that have often been criticised in this column for allowing overbroad powers to the state to confiscate children from their families. In the Western child protection systems, ordinarily, the matter proceeds in two stages; in the first stage the inquiry is whether the child should be removed from parental to state care. Here the burden of proof is on the state to establish that removal is necessary. If and only if a removal is found to be necessary does the matter proceed to the second stage where the question then becomes whether it would be in the best interests of the child to be returned to its family. But the Indian laws skip over the first stage entirely.

This is all the more alarming when you consider the matters discussed in the previous two articles in this series of the unprofessional and biased nature of investigations under the JJ Act and Rules, and the fact that the decision on foster care is made not by a court but the CWC which is a tribunal of ad-hoc appointees from the field of child development. The panel is given the powers of a court, but is not a court. It need have no judges or lawyers. Case workers are given wide powers to question families without any forensic, investigatory or legal qualification. They are not even required to be government officials, and may be NGO workers or other private individuals. They can intrude into families and homes without any court oversight in the form of a search or arrest warrant.

Once the child is in state care, just as in the Western child protection systems, all the power is with the confiscating authority, which also decides whether to reunite the child with its parents. Even if the family says that it wants the child back, this can be refused if the case worker ticks off the box for “family is interested but not in a position to receive back child” in the prescribed Form 35 of the JJ Rules.

Respect for family ties is so low that Rule 82 says that if a child is unwilling to be restored he shall not be coerced “or persuaded” to go back to his family. For good measure it is added that a child shall not be restored to his family where a child welfare official or NGO decides that this would not be in the “best interests” of the child.

The rules are careful to include language to the effect that restoration to family is to be preferred; that every attempt should be made to reunite children with their biological families; to “strengthen” families, and so on. But this language exists even in Western child protection systems. No child protection system anywhere in the world says in so many words that the state should act as a super-parent or that children do not have a right to their families. Few child protection experts will deny that family is important to the well-being of any child. But if such family-supportive rules and intentions were enough, then we would not be witnessing, as we are in countries of the West that have already implemented this system, the wrongful removal of children from perfectly normal families.

In Western countries that already have this system, the biggest obstacle to family preservation is that it is made subject to “the best interests of the child”. This phrase has become the mantra of child protection activists worldwide. But what does it mean in practice? In India, “the best interests of the child”, has a meandering definition in the JJ Act, referring to the child’s “rights and needs”, “social well-being” and “physical, emotional and intellectual development”. There is no mention of the role of filial ties in the well-being of a child.

The experience in the West is that this “best interests” evaluation is one that impoverished or otherwise vulnerable households routinely fall short of, and for which they are punished with compulsory child confiscation. With the “best interests” rule, we are well out of the territory of looking at whether a child is being abused or neglected when deciding not to return him to his parents. The “best interests” standard basically requires us to look not for proof of abuse or neglect, but to make a much broader evaluation of the social, cultural and economic situation of the family. One of the UK’s leading child protection advocacy organisations, the National Society for the Prevention of Cruelty against Children, says that parental ability is quite simply whether the parents are “good enough”. Legally speaking, you could not have a lower threshold for child removal into state custody than the “good enough” one without openly saying that parents and children have no natural rights or needs to be together and that the state is super-parent.

The practical effect of being “child-centric” is that the system can look as though it is “conscientiously” intervening for needy children, whereas what it is really doing is turning its back on the parents. Where the stresses on the family are owing to poverty or just being alone, like not having relatives who can help out with the children, no practical help is offered to the parents. They are only told that their failure to resolve the problem (which could be housing or child care) means that the child has to be removed. The system will say that it has no interest in removing children because doing so takes away considerable resources and funds. But this obfuscates the fact it takes even more resources and funds to provide for an entire family, than to target only the child.

Our Indian child protection rules are the same. There is no mention anywhere of helping parents. Not even sick or disabled parents. The only “help” is to “allow” them to surrender their children to be given up for adoption or foster care.

Some of the questions in the prescribed forms in the Indian rules for case worker reports on the child seem out of touch with the reality of children in India. Form 43 of the JJ Rules requires the case workers to report on whether the child does drawing and painting activities or reads books; whether a runaway left home because of “poverty”. It asks about “parent’s attitude towards discipline in the home and child’s reaction”. Not only are these questions alarming in an investigation that is supposed to be for the removal of a child from parental custody, but the belief that poor families aren’t “good enough” for children is latent in this line of questioning. So the question arises, just what are we really trying to do in India with this Western system of child protection?

To be continued next week

This is the third in a five-part series of articles. Part II was published on 9 September 2018 with the title ‘New childcare laws in India are putting innocents at risk’

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


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