CARA - Draft Guidelines on Adoption of Indian Children


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CARA - Draft Guidelines on Adoption of Indian Children

  2. 2. CENTRAL ADOPTION RESOURCE AUTHORITY MINISTRY OF WOMEN & CHILD DEVELOPMENT GOVERNMENT OF INDIA CONTENTS PART I Introduction • Background, • Goals & Fundamental Principles • Best Interest of Child • Curent Legal Practice • Shishu Greh Scheme • ICPS • Scope of the Guidelines • In-country & Inter-country Adoptions • Adoption Provisions under different legislations 2
  3. 3. PART II : Child Care & Rehabilitation Priority • Hierarchy of Life environments • Safety/Protection Needs of a Child • Restoration and Family Preservation Efforts • Domestic Adoption • Inter-country Adoption • Institutional Care • Care & Rehabilitation in Emergency Situations PART III: Registration, Recognition, Accredition & Enlistment • Specialized Adoption Agency(SAA) • RIPA • Adoption Co-ordinating Agency(ACA) • Enlisted Foreign Agencies for Adoption(EFAA) PART IV Role and Functions of various Authorities • Govt. of India 3
  4. 4. • CARA & Central Authorities • Designated Courts • India’s Deplomatic Missions Abroad • State Government & Uts • Adoption Advisory Committee • SARA(State Adoption Resource Agency)/State Adoption Cell • Child Welfare Committee • Birth Certificate issuing Authority PART V Role and Functions of Associated Agencies/ Stake holders • ACA(Adoption Coordinating Agency) • SAA(Specialized Adoption Agency) • EFAA(Enlisted Foreign Adoption Agencies) Other Stakeholders • Scrutiny Agencies • Adoptive Parents Asociations • Childline • Police and Local Authority • Hospitals & Nursing Homes • Birth Certificate issuing Authority 4
  5. 5. • RPO(Regional Passport Office) • Biological Parents,Community & Civil Society PART :VI Procedure for Legal Adoption • Source of Children • Admission Procedure(Transfer of Children) • Ascertaining Legal Status • Efforts for Domestic Adoption(Indians residing in India) • Procedure related to Children • Procedure related to Prospective Adoptive Parents (Indians in India) • Adoption by prospective NRI/OCI/PIO/Foreign Parents PART VII Rights, Safeguards, Ethical Issues & Guides to Good Practice • Rights of insttuionslized Children and Children placed in Adoption • Issue of Safeguards • Counselling • Post-adoption Issues PART VIII 5
  6. 6. Miscelleanous Glossary ANNEXURES : A. Adoption Provisions under different legislations B. Format of CSR & PER C. Guideline for Preparing HSR D. Master Admission Register for Children E. Reporting Formats & Online Reporting System from SAA to various Authorities F. Documents to be filed with Adoption Petition in case of domestic adoption G. Checklist of documents in case of PAPs residing abroad (foreign/NRI/OCI/PIO parents) H. Minimum Standards & Recommended Staff Provision for SAA. I. Criteria for Prospective Adoptive Parents and Criteria for Children to be adopted J. Reimbursement of Adoption Fee (In-country & Inter-country) K. Registration Format for PAPs in India L. WHO Growth Standards M. Rights of Children in Institutions ****** 6
  7. 7. 7
  8. 8. PART I INTRODUCTION 1 Background The family is the natural environment for the growth and well being of the children as family environment alone can provide them the best opportunity to fulfill their potential. Government of India considers adoption as the best non- institutional support for rehabilitation of orphan, abandoned and surrendered children who become homeless and whose separation from their biological parents can not be avoided for various reasons. In pursuance of its constitutional mandate, the Government of India has evolved a National Policy for the Welfare of Children. The thrust of this policy is summed up in the following words: "The Nation's children are a supremely important asset. Their nurture and solicitude are our responsibility. Children's programme shall find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skills and motivations needed by society. Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our larger purpose of reducing inequality and ensuring social justice." The UN Convention on the Rights of the Child-1989 recognizes family as the fundamental group of the society and the natural environment for growth and well being of all its members and particularly children. Hague Convention on Inter-country Adoption-1993 stipulates rights and safeguards for all adoptable children. JJ Amendment Act-2006 provides measures for family preservation and rehabilitation of orphan, abandoned and surrendered children. A Comprehensive Child Welfare and Protection Policies under National Plan of Action-2005 and Integrated Child Protection Services (ICPS) have stipulated child care standards for institutionalized children, their rights and safeguards. 8
  9. 9. Following upon the above mandate, the Govt. of India has evolved several programmes to ensure the betterment of children and their development in a wholesome manner. The Ministry of Women & Child Development, Govt. of India has been mandated, amongst others, with the welfare of such children in difficult circumstances and considered most vulnerable. The rehabilitation of such children through adoption is one of the major planks of the Ministry’s policies for children. This policy keeps in mind the fact that the full and wholesome growth of a child is possible only in an atmosphere of parental love and guidance. It recognizes the family as the central fulcrum around which both mental and physical development of a child is given full opportunity to blossom. In order to facilitate the implementation of the norms, principles and procedures relating to the adoption of children laid down by the Honourable Supreme Court in their judgments dated the 6th Feb. 1984, 27th Sep. 1985 and 3rd Dec. 1986 in Writ Petition L. K. Pandey vs. Union of India (NO. 1171) of 1982, the Government of India issued Guidelines vide Ministry of Welfare Resolution No. 13-33/85-CH (AC) dated the 4th July 1989. The Government of India issued the Revised Guidelines for Adoption of Indian Children vide notification dated the 29th May 1995 after examining subsequent directions laid down by the Supreme Court of India and the recommendations of the Task Force constituted under the Chairmanship of Justice P. N. Bhagawati, retired Chief Justice of Supreme Court of India. Subsequently, the Government of India converted the Central Adoption Resource Agency into an autonomous body with effect from the 18th March, 1999. It was designated as Central Authority by the Ministry of Social Justice & Empowerment on 17.7.2003 for the implementation of the Hague Convention on Protection of Children & Cooperation in respect of Inter-country Adoption (1993). The Ministry of Women & Child Development has of late been mandated to look after the subject matters ‘Adoption’ & ‘Juvenile Justice (Care & Protection of Children) Act, 2000’ pursuant to 16th Feb. 2006 notification of Govt. of India regarding reallocation of the Business. Also, the Govt. enacted the Juvenile Justice (Care & Protection of Children) Act, 2000 and further amended it in the year 2006 to ensure adequate protection and rehabilitation measures for children in need of care and protection. In the year 2004 and 2006, Government came out with In-country Guidelines 2004 and “Guidelines for Adoption from India 2006” respectively. India signed the Hague Convention on Inter-country Adoption-1993 on 9 January, 2003 and ratified it on 6 June, 2003 with a view to strengthening international cooperation and protection of Indian children placed in inter- country adoption. For the purpose of implementation of the Convention, Ministry of Women & Child Development, Government of India is functioning as the Administrative Ministry and Central Adoption Resource Authority (CARA) as the Central Authority. 9
  10. 10. In accordance with article 3 of the Convention on the Rights of Child (CRC), the best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. This principle, reiterated in article 21 CRC in relation to adoption, implies a case-by- case appreciation of the interest of the child, and conflicts with a general approach, which considers the adoption of a child as beneficial for him in all cases. The present Guidelines shall be applicable to recognized adoption agencies in the country as provided under JJ Amendment Act 2006. 1.2 Goals & Fundamental Principles The child welfare goals of most vulnerable category of children, i.e. orphan/abandoned and surrendered children are safety (child protection), family preservation (restoration to biological parents and strengthening family approach) and their rehabilitation in various non-institutional services as visualized in the UN Convention on Child Rights and Hague Convention on Inter-country Adoption (both ratified by India), principles laid down by the Honourable Supreme Court of India in the series of Judgments delivered in L.K. Pandey vs. Union of India and Others between 1984 and 1991 and various other court orders from time to time. Central Adoption Resource Authority is authorized to promote in-country adoption and regulate inter-country adoption, implement various measures necessary to establish uniform standards in sourcing of children for the purpose of adoption, procedure followed in adoption, quality child care, hierarchy of care options and rehabilitation priorities, registration and licensing procedure, monitoring provisions, standardization of documents, their safeguards and ethical practices in all placement decisions. Prevention of separation of a child from his/her biological parents/guardians and long term institutionalization of all adoptable children, child’s reintegration with biological parents and/or guardians and family reintegration constitute the most desirable permanent solution. As guiding principles in this regard, international law provides that family solutions must be envisaged as a priority and domestic measures must be given preference over those that may be available outside the country (principle of subsidiary). The principal goal is to find a loving and caring family for every adoptable child and to ensure “best interest of the child” at various stages in the adoption process. All homeless children including orphan and abandoned children must have access to non-institutional services and every effort shall be made to stop any kind of illegal or unethical practices in the name of adoption. Placement of children in adoption must be guided by a procedure in a time bound manner at all stages, so that adoptable children find themselves in adoptive families at the earliest possible time. The sooner they are placed with alternate families; it is better for their overall growth and development. 10
  11. 11. The goal as envisaged under the Hague Convention on Inter-country Adoption is to protect the rights of children, birth families and adoptive parents involved in adoptions with other countries that are parties to the Convention. It is intended to provide every child a family to ensure better social and emotional development of the destitute and orphan children within their own socio- cultural milieu, to encourage and propagate adoption of children within the country and to regulate and facilitate the procedure for Inter-country adoptions so as to bring uniformity throughout the country in this regard. 1.3 It rests on three major principles: i) Subsidiarity, whereby international adoption may only be considered in the absence of domestic solutions (i.e., only if the child cannot be brought up by his or her own parents, other members of the family or adoptive parents within the country of origin); ii) Prohibiting improper financial or other gain and requiring that only costs and expenses, including reasonable professional fees, be charged; iii) And the primacy of the child's best interests (requiring a central point of contact or central authority in each country to coordinate inter-country adoption policy and practice; to establish legal safeguards to ensure that inter-country adoptions take place in the best interest of the child and with respect to his/her fundamental rights (as recognized in International Law) to ensure and secure in the Contracting States international recognition of adoption, in other words, an adoption made in one country will be recognized in other countries; providing for a system of accreditation for inter-country adoption practitioners; requiring that consent to adopt be informed and freely given; and requiring preservation of medical and other records etc.). 1.4 Best Interest of Child The Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989 and ratified by India recognizes that each child should grow up in a family environment, in an atmosphere of happiness, love and understanding and a child, by reason of his physical and mental immaturity needs special safeguards and care, including appropriate legal protection, before as well as after birth. It further states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary condition. 11
  12. 12. In accordance with article 3 of the Convention on the Rights of Child (CRC), the best interests of the child shall be the primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. This principle, reiterated in article 21 CRC in relation to adoption, implies a case-by- case appreciation of the interest of the child, and conflicts with a general approach, which considers the adoption of a child as beneficial for him in all cases. Article 18 and 27 of CRC confirm the importance of the responsibility of parents for the upbringing of their children, but at the same time, the CRC requires the State Parties to provide necessary assistance to parents (or other care takers) in the performance of their parental responsibilities. Article 21 of the Convention deals with safeguards pertaining to inter-country adoptions. It also emphasizes on priority to in-country adoption, status of children in inter-country adoption to be equivalent to national adoptions, the placement of children should have no improper financial gain and the placement of child in inter-country adoption involves competent authorities of both the countries. 1.5 Current Legal Practice In the absence of legislation on adoption, the court procedure is followed as per judgement delivered by Hon’ble Supreme Court of India in L.K. Pandey vs. Union of India, WP No 1171 of 1982 and its subsequent cases. The present practice is that children from India placed in international adoptions are usually taken under Guardian and Wards Act, 1890 (GAWA) where Indian courts only grant guardianship rights to the foreign nationals with a view to taking guardianship of a particular child to take out of the country and adopt as per their country laws. The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 applies to all children as well as parents irrespective of their religion and gender. All adoptable children under category of children in need of care and protection (as defined under JJ Act), shall be processed under this specific legislation by district courts, city civil courts, family court and other appropriate courts as may be defined under State JJ Rules to be framed based on the above Act. The legislation being child focused legislation, guarantees all rights to an adopted child and it is also recognized under international obligations by all Hague member countries. On implementation of JJ Amendment Act-2006 and its State Rules, all cases of orphan, abandoned and surrendered children have to be processed under the Act so that unrelated children have adequate safeguards in their placement. 1.6 Sishu Greh Scheme The “Scheme of Assistance to Homes for Children (Sishu Greh) to Promote In- country Adoption” has been in operation since 1992-93 to promote in-country adoption. The Scheme was revised w.e.f. 1st April,2001 with the objective of bringing State Govt.-run-institutions within its ambit so that all institutionalized children who are legally free for adoption can find families within the country. 12
  13. 13. 1.7 ICPS Integrated Child Protection Scheme of Ministry of Women and Child Development is an intervention of holistic approach towards child protection and rehabilitation. 1.8 Scope of the Guidelines These Guidelines shall be applicable for all orphans, abandoned and surrendered children under the age of 18 years as far as their adoption in loving and caring alternate families is concerned both within the country and abroad. The proposed Guidelines should assist States to ensure the rights of all children to have access to non-institutional care, enforce uniform standards in case of all adoptable children and ensure basic minimum requirements in case of special needs children etc. These Guidelines would essentially seek to ensure that children do not find themselves on the streets or in residential homes pointlessly, rather they find care and rehabilitation services as per their specific needs and rights. The above Guidelines shall replace (i) Guidelines for In-country adoption, 2004 and (ii) Guidelines for Adoption from India, 2006. Cases of all orphan, abandoned and surrendered children shall be processed as per the provisions prescribed under the present Guidelines and appropriate legislations and Rules in force. 1.9 In-country & Inter-country Adoption Adoption proposals received from Indians residing in India shall be processed by SAAs as per procedure given under the Guidelines. Applications of NRI/OCI/PIO and foreign parents sponsored by EFAAs/Central Authorities or Govt. Departments to CARA shall be treated as inter-country adoptions. An inter-country adoption is one in which the adoptive parents and the child do not have the same nationality as well one in which the habitual residence of the adopters and the child is in different counties. 1.10 Adoption Provisions under different Legislations All children in need of care and protection shall be resorted to procedure established under JJ Amendment Act 2006, its National Model Rules or State Rules and the present Guidelines. Even in cases of family adoption, if children are found to be such category (children in need of care and protection), their adoption may be finalized under JJ Amendment Act 2006.Details about adoption provisions under different legislations are placed at Annexure-A. ****** 13
  14. 14. PART - II CHILD CARE & REHABILITATION PRIORITIES The family is the primary setting for children's development. The separation of children from their families can result from many causes, including the death of one or both parents, abandonment, natural calamities, displacement, poverty, gender issues, children suffering from special needs or simply the inability or unwillingness of the family to provide care. It is true that the best institutional care cannot replace the warmth of family life and therefore, children need not be separated from their biological family on the ground of poverty or gender issues and therefore each case of such child should be carefully planned. It is imperative to ensure primacy of efforts to maintaining the child with his or her parents by providing necessary support to the latter in their care-giving role, i.e. preventing unwarranted or arbitrary separation ensuring the planned provision of a range of alternative care options, with priority to family and community based solutions, securing permanency for the child without undue delay through, wherever possible, reunification with the family or in an alternative stable family setting, protection from abuse, neglect and exploitation in all care settings. Hierarchy of life environments • family solutions (prevention of abandonment and keeping the child in his/her family, returning the child to his/her family of origin, foster care, internal or intercountry adoption) must take precedence over long-term institutionalization. • Permanent solutions (keeping or reintegrating the child in his/her family of origin, adoption) must take precedence over temporary solutions that perpetuate themselves. • Temporary solutions (foster care, placement in an institution) must give priority to the reintegration of the child in his/her family of origin, or else to the search for a permanent solution. • National solutions (family reintegration, internal adoption) must take precedence over international solutions (inter-country adoption). 14
  15. 15. Priority No I Safety/Protection Needs of a Child When children are admitted into adoption agencies/child care institutions, their protection or safety need is to be accorded highest priority. The child’s best interests and respect for his/her fundamental rights shall govern any protective measure taken for a child. Child Protection incorporates both prevention and rehabilitation aspects. Children have a right to be prevented from becoming subjects of violence, abuse, neglect and exploitation while during their stay in the institutions. “Child Protection” is about protecting children from or against any perceived or real danger or risk to their life, their personhood and childhood. It is about the reducing their vulnerability to any kind of harm and protecting them in harmful situations. While protection is a right of every child, infants and young children are more vulnerable then others. Adoption agencies are required to support preventive interventions, promote community based care and quality standards so that every child has access to safety/protection need as soon as it is admitted in the home. Priority No II Restoration & Family Preservation Efforts The family preservation services may include family support interventions, health and nutrition programmes, education programmes, psychosocial support, household economic strengthening programs etc. SAAs are urged to promote family foster care and sponsorship programme to prevent separation of children from their biological parents. Every effort must be made to retain a child with his/her biological parents. Prevention of family separation is called for in the Universal Declaration of Human Rights (Article 16) and is integral to the United Nations Convention on the Rights of the Child (Articles 5–9, 18, 24, 27-29). Restoration of a child to the biological parent/s or preventing abandonment of a child from biological parent/s are important decisions and such decision- making in the best interests of the child should be based on rigorous assessment, planning and review, through established structures and mechanisms. It should be carried out on a case-by-case basis, by suitably qualified persons, preferably in a multidisciplinary team. 15
  16. 16. Family preservation efforts should aim to empower families with attitudes, skills, capacities and tools to enable them to provide adequately for the protection, care and development of their children. A family strengthening approach may include parenting courses, the promotion of positive parent- child relationships, conflict resolution skills, and opportunities for income generating activities, support services, including financial assistance and care facilities for parents and children together when necessary. Agencies and authorities should make every effort to prevent the separation of children from their parents or primary caregivers, unless the best interests of the child so require, and ensure that their actions do not inadvertently encourage family separation by providing services and benefits to children alone rather than to families. Should family reintegration prove impossible within an appropriate period, or be deemed contrary to the child’s best interests, other long-term options such as sponsorship, foster care, appropriate residential care or adoption should be envisaged. That child welfare service providers are expected to check whether children who are deprived of parental care be placed with relatives or other adults known to them, so that they can stay in a familiar environment. The Juvenile Justice Act 2000(amended in 2006) provides for the reintegration of children into the community by means of adoption, foster care and sponsorship. SAAs are encouraged to develop programmes for family based non-institutional care including sponsorship (both preventive and rehabilitative) and foster care (temporary foster care and pre-adoption foster care) support. Family foster care for older children may be considered as an important option in this regard. Priority No III Domestic Adoption The Supreme Court of India in its series of judgements in L.K.Pandey vs. Union of India case and the United Nations Declaration of the Rights of the Child adopted by the General Assembly of the United Nations in 1989 as well as the Hague Convention on Inter-country adoption of 1993 clearly lay down that the best interest of the child without a family is served by providing it an opportunity to be placed with a family within its own socio-cultural milieu. Thus every child has a right to be considered for placement with a family belonging to its own national and cultural background within the country. Inter-country adoption is therefore, to be seen as an option, which is to be considered only when the above is not possible. Priority No IV Inter-country Adoption 16
  17. 17. In the light of Article 21(b) of UNCRC, inter-country adoption may be considered as an alternative means of child care, if the child can not be placed in a suitable foster or in an adoptive family or can not in any suitable manner be cared for in the child’s country of origin. This may be read with Article 4.b of Hague Convention on Inter-country Adoption 1993. Further on perusal of the Hague Convention of Art 16.1b, it is said that due consideration be given to the child’s upbringing and to his or her ethnic, religious, cultural and linguistic background while doing placement for his/her adoption. Inter-country adoption may be seen as the next priority while making rehabilitation efforts for such children, which can be preferred to institutionalization. In view of the above and letter issued by Ministry of Overseas Indian Affairs vide DO No OI-16011/10/2006 dtd 20th Novemeber 2006, priority for adoption may be given as under: 1. Indians in India 2. NRI/OCIs(No SARA Clerance required) 3. PIOs/foreigners Priority No V Institutional Care In spite of its best efforts to place children in non-institutional care, if a particular SAA does not succeed, the next alternative left with it is to fit such children into appropriate care provisions keeping their best interest as priority. A list of such institutions may be maintained by SAA, CWC and SARA to enable such children to get appropriate child care as envisaged under JJ Amendment Act 2006. 17
  18. 18. While under institutional care, such children should enjoy all rights as enshrined in UNCRC, i.e., including the right to maintain regular contact with biological family and other significant people if such contact is not conflicting with their best interest, the right for siblings to stay together or maintain regular contact, the right to an identity, the right to respect of the child’s ethnic, religious, cultural, social and linguistic background, the right to privacy, the right to good quality health care adapted to the needs and well-being of the individual child, the right to respect for the child’s human dignity and physical integrity, protection against corporal punishment and all forms of abuse, the right to equal opportunities, the right to have access to all types of education, vocational guidance and training under the same conditions as for all other children, the right to be prepared for active and responsible citizenship through play, sport, cultural activity, informal education and increasing responsibilities, the right to participate in decision-making processes concerning the child and the living conditions in the institution and the right to make complaints to an identifiable, impartial and independent body in order to assert children’s fundamental rights. Care and Rehabilitation in Emergency Situations All principles set out in the present Guidelines should continue to apply in situations of emergency arising from natural and man-made disasters. Identifying, registering and documenting unaccompanied or separated children are priorities in any emergency and should be carried out as quickly as possible. Registration activities should be conducted by or under the direct supervision of Government authorities and explicitly mandated agencies with responsibility for and experience in this task. The children may not be shifted to far off places unless it is so required and their identity should be preserved at all costs. Temporary foster care or institutional care may be considered as appropriate alternative in such cases. In case the relatives/ guardians are alive, such children have a right to be united with their relatives/guardians provided there is nothing wrong in such efforts. If it has been established beyond all doubts that there is no surviving relative/guardian, in such case, the child may be placed in domestic adoption. No action should be taken that may hinder eventual family reintegration. ****** PART III REGISTRATION, RECOGNITION, ACCREDITION & ENLISTMENT Adoption of unrelated children shall be processed only through licensed/recognized agencies as provided under these Guidelines. In case of domestic adoption, which means Indians residing in India, children shall be processed through SAA while in all other cases such as NRIs/OCIs/PIOs and foreigners, adoption applications can be sponsored from the receiving country to CARA and such applications can be processed through SAA (RIPA). 18
  19. 19. 3. 1 Specialized Adoption Agency (SAA) Criteria of Recognition The State Governments (the term "State Government" to include Union Territory Administration wherever applicable) through SARA shall recognize suitable children's homes as SAA for placing children in adoption. Out of all CCIs, only selected units may be registered as Specialized Adoption Agency as per JJ Act for infants and young children (0-6 yrs). State Govt. may make efforts to recognize at least one SAA in each district. The State Govt. shall periodically renew recognition. In case children above 6 years are available in the institutions who are either orphan/abandoned or surrendered, additional facilities may also be provided for education, recreation etc. The mandatory requirement of such agency is that it should have adequate infrastructure and facilities of quality childcare to meet any casualty or emergency situation while the child is admitted into the agency or stays for a short-term. Out of all CCIs, the state govt. may like to recognize a few institutions to deal with high-degree special needs children (suffering from HIV/AIDS, mentally retarded and other hard to place category) where experts are available to provide quality care and treatment on long-term basis for those children who are not adoptable. The State Government shall issue recognition certificate as SAA to suitable CCI under Section 41(4) of the JJ Amendment Act – 2006 on the basis of the following criteria: (i) Only such voluntary agencies/institutions as are primarily engaged in non-profit activities and preferably having child welfare programmes and registered under the Societies Registration Act, 1860 / Public Trust Act can apply for registration as CCIs and further for recognition as SAA. (ii) All such CCIs shall be registered under Section 34 (3) of the JJ Act. (iii) Such institutions should have other social and charitable activities to qualify to be approved as SAA in the State. (iv) It should have computer and internet connection to feed online data to various authorities (v) For applying recognition as SAA in the State or UT, such CCI has to enclose above documents along with its Annual Reports (for last three years), list of professional and child care staff, copy of its Memorandum of Association and Management Committee (MC) and minutes of its MC supporting such decision. (vi) By virtue of recognition by State Govt, SAAs shall become eligibile to become member of SARA/ACA. 19
  20. 20. (vii) Such agency should adhere to guideline or rule laid down by the State Government /Central Government or CARA on Adoption from time to time. (viii) All such homes must have a high standard of child care facilities to ensure that children are rehabilitated and their health improved before they are placed in adoption. All the agencies shall observe prescribed & adequate standards in child care and professional and child care staff as per the broad criteria placed at Annexure – B. The number of Ayas and nurses and other staff shall vary in proportion to the number of children in the Home. For children, between 3 and 6 years proper recreational and pre-school educational facilities must be provided. (ix) It shall be mandatory for all the Homes/ Institutions to have qualified professional and child care staff for running child welfare programme. Professional social worker should be an MSW or Master Degree holder in Psychology. (x) It is also advised to have a part time legal consultant who can help in completion of legal formalities for placement of the child. In addition to the provisions provided under this Guidelines, SAA is required to comply with procedures and child care standards as provided under JJ Amendment Act 2006 and its corresponding National Model Rules or State JJ Rules and Schemes framed by Government of India known as Integrated Child Protection Scheme (ICPS) for protection and rehabilitation of all children in need of care and protection. All SAAs are required to ensure that a child’s right to grow up in safe, stable and trustworthy relationships is assured and institutionalization of the child is considered as the last resort. 3.2 SAA (RIPA) Only such SAA having adequate infrastructure and other social and child welfare activities may be recommended by the State Government to CARA for recognition as RIPA and such agencies will be known as RIPA and accredited agencies of CARA for placing children both in domestic and inter-country adoption. Criteria for recognition 20
  21. 21. In addition to the requirements as mentioned above in case of SAA, SAA (RIPA) is required to have additional facilities for special needs children and large number of children not able to find family within the country etc. CARA may consider recognition of such agencies as RIPA based on State Government’s recommendation and additional facilities available therein. Only Recognised Agencies can undertake Inter-country Adoption. RIPAs will be known as accredited bodies for the purpose of processing inter-country adoption applications. Any Indian agency desirous of undertaking inter-country adoption work shall apply for recognition to the Central Adoption Resource Authority, through the State Government concerned. Conditions for Recognition a) It shall be a society registered under the Societies Registration Act, 1860 or a Trust created under the Charitable Trust Act, or an organization registered under an appropriate law or an organization which has worked for the welfare of children during the proceeding three years; b) The organization shall be duly licensed by the State Government as SAA under the provisions of JJ Amendment Act 2006 or relevant State Rules; c) It shall have a duly constituted Executive Committee. The Chief Executive of the organization as well as the majority of members of the Board/Executive Committee should be Indian citizens; d) It should have appropriate children’s home for the protection and up- keep of children including infants; e) It should be running on a non-commercial, non-profitable basis; f) It should have at least one qualified Social Worker on its staff to carry out the adoption work; g) The Chief Executive of the organization should be willing to sign a written undertaking to follow the guidelines laid down by the Supereme Court of India and those prescribed, from time to time, by the Government of India and the Regulations if any, made by CARA. h) Recognition of the agency should be recommended by the State Government concerned or if it is not so recommended, the reason for the refusal should be given. CARA may accept or reject the reasons for refusal. The decision of CARA shall be final. Duration 21
  22. 22. Recognition to an Indian accredited agency shall be granted normally for a period of 5 years, subject to the conditions laid down in these Guidelines. The decision of CARA shall be final in this regard. Renewal of Recognition of RIPA RIPA should apply for renewal of recognition, 6 months prior to the date of expiry of the previous recognition. The original application should be sent by the agency to the appropriate authority of the State Government and a copy of it should simultaneously be forwarded directly to CARA. The State Government will forward the original application to CARA along with its comments within a period of two months from the date of receipt of the complete application. If the State Government does not respond within stipulated time from the date of receipt of application, CARA and consider the renewal of recognition. Recognition would normally be renewable for a period of five years subject to the following conditions: • Recommendation/views of the concerned State Government accompanied by the inspection report of the Agency. • Satisfactory performance in relation to in-country adoption will be an important factor to assess and consider further renewal of recognition of any RIPA. The agencies shall sufficiently exhibit their involvement in the area of In-country adoption. The Agencies will place 50% or more children in adoption to Indians in India. • Regular submission of Annual report, monthly reports of the Agencies and audited statement of accounts as prescribed, adoption charges per child, donations received, if any. • No instance of proved malpractice against the RIPA. • Whether the agency is still recognized by the appropriate authority of concerned State govt. for running the children Home and doing in country adoption under relevant rules. • List of children placed in in-country and inter-country adoption, year- wise for the period of five years to support the data submitted. Agencies to maintain Accounts Every agency shall maintain proper accounts to be audited by a Chartered Accountant every year.An attested copy of audited accounts together with audit report shall be furnished by every agency within one month from the date accounts have been audited by the Chartered Accountant, to the relevant Department of the State Government concerned and to the CARA. An attested copy of the FCRA accounts submitted to the Home Ministry should be furnished to CARA together with the audited accounts, by the agency. The 22
  23. 23. adoption charges and donations received from different sources will be submitted to CARA at the end of every financial year. The SAA (RIPA) is required to maintain child-wise adoption fee as well as any sponsorship fee or donation received from EFAA/Central Authority. Receipt of applications for Inter-country Adoptions All applications for inter-country adoptions shall be received by CARA. No Recognised Indian Placement Agency shall entertain any application for adoption of an Indian child from foreigners [including NRIs/PIOs (as applicable)], Enlisted Foreign Adoption Agency/central authority or from the appropriate Government authority/duly authorized body in countries where there is no enlisted agency. The applications received in CARA will be distributed to RIPAs keeping in view the availability of children as also the preference if exercised for a particular RIPA. PAPs not approved by CARA, in case of Hague countries should not be allowed to visit RIPAs for selecting children. Inspection of Agencies The premises of the Recognized Indian Placement Agencies including their children Homes, and their records shall be open to inspection by CARA, SARA or State Govt. or any other agency authorized by CARA. De-recognition Recognition can be withdrawn or suspended by CARA wherever the need arises or any other suitable action can be taken against the agency after giving due opportunity to the agency by way of show cause notice. Recognition is subject to review any time. 3.3 Adoption Coordinating Agency (ACA) Recognition of ACA There will be an Adoption Coordinating Agency (ACA) in a State or in special circumstances more than one ACA in a State or one ACA for a group of states where there are several children homes and adoption agencies to carry out the functions prescribed under the Guidelines and as assigned to it by CARA from time to time. Normally recognition shall be considered for 5 years on satisfactory performance in the promotion of in- country adoptions and other activities, timely submission of reports and audited statement of accounts, recommendation of State Government along with its inspection report and such other requirements as specified by CARA will form the basis of recognition. Criteria for recognition • ACA shall be registered under the Societies Registration Act, 1860. 23
  24. 24. • Its Executive Committee shall be constituted as prescribed under the Guidelines • It should not have a liason with any EFAA for donations or for funding any of its projects. • The agency should run on a non-commercial and non-profitable basis. • Furnished undertaking to Comply with CARA Guidelines. • All the Office-bearers should be Indian Nationals. • Any new Agency applying for ACA recognition, is required to employ such number of staff as provided under ICPS or as decided by CARA from time to time. • The agency must be recommended by the concerned State Government for recognition by CARA. Renewal of Recognition ACA which seeks renewal of recognition should apply to CARA through the State Government for renewal of recognition six months prior to the date of expiry of the previous recognition. If the State Government does not respond within the stipulated 60 day period from the date of receipt of application, it shall be presumed that the State Government has no objection. However, CARA may issue recognition after satisfying itself about the activities & performance of ACA. Withdrawal of Recognition CARA shall make annual evaluation of such agencies and in case any ACA is found lacking in discharging its activities, CARA shall take appropriate action in terms of suspension/withdrawal of recognition after giving it an opportunity to explain its conduct. In the event of withdrawal of recognition CARA shall evolve suitable alternate mechanism for issue of Clearance Certificates. Any malpractice, if proved, would immediately invite action in the shape of withdrawal of recognition. Delay and non-compliance in the submission of reports/accounts asked for by the State Government or CARA may also be a ground for withdrawal of recognition. 3.4 Enlisted Foreign Agencies for Adoption(EFAA) CARA will approve/authorize Enlisted Foreign Adoption Agencies(EFAAs) who can forward applications of foreign prospective adoptive parents including NRIs (Non Resident Indians), OCIs and PIOs to it for approval. 24
  25. 25. Foreign Agencies to Apply to India’s Diplomatic Missions A foreign social/child welfare agency desirous of sponsoring applications of foreign adoptive parents for adopting an Indian child shall make an application for authorization to CARA through the Office of Indian Diplomatic Mission in that country and only such foreign agencies enlisted for this purpose by CARA shall undertake this activity. Criteria for Enlistment of Foreign Agencies The criteria for enlistment/authorization of foreign agencies by CARA for the purpose of inter-country adoption are as under:- • It will be an Agency duly registered under the relevant law of the concerned country and should be recognized/ licensed by the appropriate authority of that country to undertake inter-country adoption. • It must have been duly accredited and authorized by the Competent Authority under the Hague Convention on Inter-country Adoptions, 1993 (wherever applicable). • It will submit the Memorandum, Mission statement, copies of Registration status, latest license issued by the concerned Government authority to undertake International Adoptions, list of Board/Executive Members and list of countries it is working with. • It shall be a child welfare agency with an established standing in this field and it must be staffed with qualified social workers who have experience in the field of adoption. It shall submit the activities of the organization, Annual Reports for the last 3 years, list of staff with qualification and accounts for the last two years. • The agency shall run on a non-commercial and non-profit basis and shall provide an annual statement on payment made to the Indian agencies. 25
  26. 26. • An undertaking by the enlisted foreign adoption agency that in case of disruption of the foreigner's family or in case the child is not properly looked after or is mistreated or abused in the adoptive family, it will undertake responsibility for the care of the child under intimation to the Indian Diplomatic Mission, the Central Adoption Resource Authority, SARA and the concerned Recognized Indian Placement Agency immediately with full details and action taken for care and protection of the child. This shall include finding a suitable alternative placement for the child with the concurrence of the SAA (RIPA), which processed the case and report such alternative placement to the Indian Court, which passed the order for adoption. In such a case wherein the child is being repatriated to India either to his/her biological family, or to the Recognised Indian Placement Agency or to any other organisation, CARA should be consulted. All Social and Medical Reports should be furnished. The legal status of the child, his/her rights of citizens in the foreign country and the adoptive parents legal liabilities should be stated. A care plan for the child will be worked out and the State Government or any other organisation authorized by CARA will monitor the well being of the child. All cost including repatriation and after care will be met by the Enlisted Foreign Adoption Agency. • The Head/Chief Executive of the Organisation should be willing to sign a written undertaking to follow the Guidelines and to send progress reports as required. Procedure for Enlistment (i) A foreign social/child welfare agency desirous of sponsoring applications of foreign adoptive parents for adopting Indian children shall apply for enlistment to CARA, through the office of India's Diplomatic Mission in that country. (ii) On the recommendation of India's Diplomatic Mission in the country concerned, CARA shall examine the application for enlistment and consider the agency concerned for enlistment provided it fulfils the criteria stated. (iii) A foreign adoption agency may be enlisted for a period of 5 years. Renewal of Enlistment • Every EFAA should apply for renewal of enlistment to CARA through the concerned Indian Diplomatic Mission, its Central Authority/Govt. Deptt. as the case may be in Hague ratified countries, 6 months prior to the date of expiry of the previous recognition. 26
  27. 27. • Normally recognition shall be considered for 5 years on timely submission of annual reports and audited statement of accounts, and such other requirements as specified by CARA will form the basis of renewal of enlistment. The most important requirement is to furnish status of children who have been placed through it along with their adoption decree/citizenship certificate. De-enlistment The Central Adoption Resource Authority, Ministry of Women and Child Development, Government of India, may at any time de-enlist any Enlisted Foreign Adoption Agency for adoption for valid or legitimate reasons to be recorded in writing. No EFAA should have a contract with any Indian agency/ies to allocate certain number of children against quantum of donation or payment of more than the prescribed adoption fee. However, if at the time of de-enlistment, there is any case under process that would be allowed to be completed unless CARA decides it will not be in the best interests of the child to do so. Non-submission of regular progress reports can lead to de-enlistment. ****** 27
  28. 28. PART IV ROLE AND FUNCTIONS OF AUTHORITIES 4.1 Authorities As envisaged under Hague Convention on Inter-country Adoption 1993, authorities and agencies of both sending and receiving countries are mandated to discharge functions in regard to rights and safeguards of children placed in adoption. 4.2 Government of India In the Government of India, the Ministry of Women and Child Development deals with all policy matters related to adoption. The Ministry shall have the primary responsibility for the development and funding of various Schemes related to adoption. Government of India is competent to frame rules and issue Guidelines related to non-institutional care and adoption of children with loving and caring families. The Ministry is competent to take policy decision on any particular issue related to orphan, abandoned and surrendered children. 4.3 CARA & Central Authorities Central Adoption Resource Authority was established on 28th June’1990 . It was registered under the Societies Registration Act on 18th March’1999 as an autonomous body. CARA as an autonomous body under Ministry of Women and Child Development (WCD) promotes domestic adoption and regulates inter- country adoption in the country. By virtue of ratification of Hague Convention, it functions as a central authority in the matter of adoption. CARA as a sending country is obliged to implement all provisions of the Convention. Under Article 7 of the Hague Convention on Inter-country Adoption 1993, a contracting state shall designate a Central Authority (CA) to discharge the duties which are imposed by the Convention upon such authorities. 4.4 The Central Authorities of the receiving countries have to declare in their letter of approval that: • the PFAPs are eligible & suitable to adopt a child from India as per the Law of their countries. • the Home Study Report & Health Report(by the medical professional) of the PFAPs are prepared by the professionally trained social workers of the agencies/bodies accredited by the authority. • the child will be authorized to enter & reside permanently & will be treated at par with other natural born citizen of the country. 28
  29. 29. • With reference to every child, it shall send either directly or through its accredited agencies follow-up reports with photographs of the child on a six monthly basis for a period of 2 years. It shall also send a copy of the citizenship certificate order alongwith re-adoption order wherever required to: 1. CARA 2. Court that awarded adoption order in India 3. SARA 4. RIPA • In case of any disruption etc. it shall take following appropriate measures as envisaged under Art. 21 of the Convention: o to inform CARA immediately the disruption & the possibility of child’s placement with a new prospective adoptive parent; o and where this is not appropriate or possible, to arrange long term care under intimation to CARA; • It shall arrange for the return of the child to India if his/her interest so required due to the disruption. • Central authorities in the receiving countries where ever existing are required to transmit the attested copy HSR in advance to CARA instead of RIPA. Central Authority of the receiving country is required to provide status of Indian children on annual basis to CARA. It shall discharge such other functions as given under Hague Convention on Inter-country Adoption. 4.5 Roles and Functions of CARA CARA functions as a nodal body on adoption matter in the country include the following: a) To act as the Central Authority with regard to Adoption matters as envisaged under the Hague Convention on Protection of Children and Cooperation in respect of Inter country Adoption, 1993 and its reinforce the criteria for accreditation for all such adoption agencies(SAAs), systematize the accreditation methodology, take up training and development activities of these bodies on the rights of the child and adoption and to monitor their activities with periodic supervision. b) To act as a clearinghouse of information in regard to children available for inter-country adoption as well as for in-country adoption. 29
  30. 30. c) To receive applications or copies of applications along with requisite documents (as prescribed by the Supreme Court of India in CRL (WP) No. 1171/1982 in the matter of Shri Laxmi Kant Pandey Vs. Union of India and Others) of foreigners desirous of taking Indian children in adoption through a recognized social or child welfare agency known as EFAA in the foreign country or through an organization owned or operated by the Government in that country. d) To coordinate with the State Governments, SARAs for promoting in- country adoption and all other related adoption matters including regulation and monitoring of its associated agencies such as RIPA and ACA etcs. e) To recognize/renew the SAAs (RIPA) as accredited bodies for processing inter-country adoption cases. f) To enlist/renew enlistment of foreign adoption agencies as authorized bodies to sponsor applications for Inter country Adoption of Indian children. g) To recognize/renew an Adoption Coordinating Agency (ACA) to promote Indian adoption. h) To issue “No Objection Certificates” in inter-country adoption cases at two stages. i) To prepare a centralized database of all children in the adoption process and prospective adoptive parents with the help of SARA and ACA for the purpose of establishing central information pool on such children and parents. j) To inspect and evaluate the working of SAA (RIPA) and SARA directly or through State Governments or any other agency or body constituted for the purpose. k) To call for annual audited statements of account from SAA (RIPA), ACA and SARA. l) To call for annual statements from Enlisted Foreign Adoption Agencies on Indian children placed by them in the prescribed format. m) To send data on adopted children periodically to Indian Diplomatic Missions abroad in respect of Indian children taken abroad. n) To receive periodical reports about the progress of the children taken abroad by parents for the purpose of adoption in a Performa prescribed by CARA from all Enlisted Foreign Adoption Agencies (EFAAs) including central authorities/government departments in foreign countries and to take such follow-up action as deemed necessary. 30
  31. 31. o) To organize and arrange periodical meetings of SARAs/ACAs working in the field of adoption for discussing matters of common interest. p) To mobilize community opinion and community resources in furtherance of adoption of children in the country itself and take all other measures necessary for the promotion of in-country adoption of children as well as welfare of children generally. q) To arrange training programmes for social workers of SAAa and other stakeholders engaged in child welfare activity specially in the rehabilitation of children by means of adoption. r) To enter into bilateral agreement with Foreign Central Authorities wherever necessary as prescribed under the Hague Convention. s) To liaise with concerned Central Authority/other appropriate Authority, Enlisted Agency and RIPA in case of disruption of a child placed in inter- country adoption and to take action in the best interest of the child. t) To be responsible for verifying qualification of foreign adoption agencies; proposing concrete qualifying standards of foreign adopters who want to adopt in India; reviewing adoption application and relevant certifying documents submitted by foreign governments or adoption agencies appointed by foreign governments; making regular assessments of inter- country adoption practice of foreign adoption agencies which perform Indian adoption program. u) To work as a think tank for the Ministry in the matter of adoption and conduct studies and propose recommendations for regulating inter- country adoption practice; develop domestic adoption with the help of SARA and its associated agencies. v) To develop quality standards and indicators for adoption agencies w) CARA may levy any recognition/renewal processing fee or any other charges with the approval of the Ministry of Women & Child Development from time to time. x) To take suitable action against any RIPA/ACA for any unethical practice in inter-country adoption or violation of the present Guidelines and further. y) To handle any other matters concerning the foreign adoption work and initiate action on any other activity relating to adoption as a child’s right to a family. z) The CARA shall prepare an Annual Report on its working and shall submit it to the Ministry of Women & Child Development, Govt. of India. 31
  32. 32. 4.6 Designated Courts a) In case of all children in need of care and protection, the provision of JJ Amendment Act 2006 will be applicable. The concerned courts are required to allocate particular day of the week/fortnight/month for adoption cases so that adoptive parents do not have to wait long and the cases are cleared expeditiously as directed by the Supreme Court in India in the case of L.K.Pandey vs Union of India(WP No. 1171 of 1982). b) High courts, district courts, city civil courts or family courts as the case may be are required to dispose off adoption matters under JJ Amendment Act - 2006 expeditiously in the first hearing itself and within a period of 2 months. In case of all adoptions, the affected children will be given the same legal status and rights of inheritance as if they were born to the adoptive parent/s. c) As per Article 23 of the Hague Convention on Inter-country Adoption, an adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognized by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, sub-paragraph c), were given. 4.7 India’s Diplomatic Missions Abroad • Indian Diplomatic Missions abroad, will liaise with concerned Central/Public Authorities to ensure safeguards of children of Indian origin adopted by foreign parents against neglect, maltreatment, exploitation or abuse. • They will receive a statement of all Indian children periodically cleared for adoption by foreign nationals (including NRIs/OCIs/PIOs) from CARA. • Indian Missions will interact with the Foreign Enlisted Agencies and Central Authorities in their area of jurisdiction and help to arrange get together of the adopted children and their parents. • The Indian Missions located in different countries will play a significant role in the process of Inter-country adoption of Indian children. The Missions will help CARA in maintaining liaison with the different authorities and agencies operating in the countries of their jurisdiction. • While recommendations for fresh enlistment should be made by the concerned Indian Embassy/High Commission only, in case of renewals, the same may be recommended by the Offices of the Consulate Generals and Dy. High Commissions also. 32
  33. 33. • Attestation of Dossier/documents of prospective adoptive parents submitted by the foreign authorities/agencies before the same is sent to CARA, (wherever the 1961 Hague Convention on Abolishing Requirement of Legalization for Foreign Public Documents is not applicable). • In case of Indian passport holders residing in a country where there is no enlisted agency or where they cannot be recommended by the host Govt. as per local laws, the Indian Embassy may authorize a qualified social worker to do the Home Study Report (HSR) and other documentation including Undertaking to send progress reports etc. and send the dossier to CARA with its recommendation. • Whenever a report is received on adoption disruption of an Indian child by a foreign couple, the Embassy should contact the local central authority and other concerned authorities to ensure that the interest of the child is being looked after. A report in this regard should also be sent to CARA at the earliest. • In case the child is required to be returned to India, the Embassy may render necessary help and facilitate the repatriation of the child in consultation with the local authorities, agency and CARA. • The Embassy should communicate any report or observation which it feels is important and relevant vis-à-vis inter-country adoptions to CARA. 4.8 State Government/Union Territories 4.8.1 Licensing of Children’s Homes The State Governments (the term "State Government" to include Union Territory Administration wherever applicable) shall register suitable children homes as child care institutions (CCI) and further licence/recognise CCIs as SAAs(Special Adoption Agencies) for in-country adoption as per the procedure laid down in the State JJ Rules and CARA Guidelines in force. Generally CCIs having basic facilities for infants and young children between 0-6 years may be selected for recognition as SSAs. Where such institutions house older and special needs children say up to 12 years, CCIs must provide all facilities for such children. The mandatory requirement of such agency is that it should have adequate infrastructure and facilities of quality childcare to meet any casualty or emergency situation while the child is admitted into the agency or stays for a short-term. Out of all CCIs, the state govt. may like to recognize few institutions to deal with high-degree special needs children including those suffering from HIV/AIDS, mentally retarded and other hard to place category where experts are available to provide quality care and treatment on long-term basis. 33
  34. 34. 4.8.2 Role and Functions a) The concerned State Government/UT shall be responsible to enforce standards and measures for orphan, abandoned and surrendered children as envisaged under JJ Amendment Act 2006 and the present Guidelines framing and notification of the State JJ Rules based on National JJ Model Rules 2007, setting up of CWCs in all the districts of the State, promote family based non-institutional care such as adoption, foster care and sponsorship and such other provisions as envisaged under JJ Amendment Act 2006. b) It shall set up SARA(State Adoption Resource Agency) within the Department dealing with adoption matters or convert its Adoption Cell into SARA by appointing such staff as provided under ICPS. Until SARA is constituted, State Adoption Cell shall perform all designated functions and report to State Government and CARA. c) State Government shall take regular meetings with SARA and implement such provisions that are required for expansion of non-institutional care including adoption programme in the State, i.e. strengthening the knowledge base, research and documentation, developing a child tracking system, training and development activities, advocacy and communication, monitoring and evaluation related with the programme etc. d) State Governments may direct all the CWCs working in the States to submit periodical data to SARA relating to adoption matters. e) The State Government shall take appropriate legal action against persons and institutions including Nursing Homes and Hospitals involved in illegal adoption work. f) State Government shall register of all residential institutions housing children as CCIs and for non-compliance of this requirement, it shall take appropriate steps against defaulting agencies/institutions housing orphan and abandoned children for the purpose of institutionalization. Homes not recognised by the State Governments will not be allowed to carry out the function of adoption. g) Having regard to the fact that adoption is the most preferred avenue for rehabilitation of orphans and destitute children; the State Government shall make specific provisions for its advocacy and draw up a well- formulated media campaign for promotion of adoption. It shall inter alia publish a list of all adoption agencies [SAAs & RIPA] in the state at least once in a year. 34
  35. 35. h) The State Government shall take all such measures as are deemed necessary to actively encourage in-country adoption of children in preference to inter-country adoption. Special care/efforts shall be made for rehabilitation of children in institutions through placement by adoption. It shall discourage institutionalization of all adoptable children i) Monitor the adoption programme and the activities of all adoption agencies, ACAs and SARA within its jurisdiction. j) Enforce the Juvenile Justice(Care and Protection) Amendment Act 2006 or its State Rules to maintain certain minimum standards for child care. k) It will receive all applications from adoption agencies for fresh recognition as well as renewal of recognition for inter-country adoption. Cases of appropriate SAAs may be forwarded by the State Government to CARA for recognition for inter-country adoption. State Governments should not recommend either new recognition or renewals if they have not permitted the concerned agency to undertake in-country adoption. l) In case of accredited agencies, the State Govt. after due verification, it will give its clear recommendation along with Inspection Report or otherwise with supporting documents to CARA. m) It will ensure that the adoption related State JJ Rules based on JJ Amendment Act, 2006 and the CARA Guidelines are adhered to. n) In case of a report of violation of guidelines by a SAA, the State Government with the recommendation from SARA against it shall take appropriate action after giving it a chance to keep its point of view. Any SAA who is found to promote institutionalization of children when such children can be rehabilitated through non-institutional means, may be de-recognized by State Government. In case of a report of violation of guidelines by a SAA (RIPA), the State Government shall inform CARA for taking appropriate action. In case of suspension/withdrawal of recognition by CARA, suitable alternative rehabilitation plans have to be ensured by the State Government for children awaiting adoption through other RIPA. 4.9 State Adoption Advisory Committee: In order to promote, implement, supervise and monitor the non-institutional programmes including adoption, foster care and sponsorship at State level, a State Adoption Advisory Committee shall be constituted at every State/UT. The Committee shall be competent to take all important decisions in regard to adoption related issues in the State. The Adoption Advisory Committee will meet quarterly to discuss child welfare measures and ways and means to promote in-country adoption of children and regulate inter-country adoption. Minutes of every meeting shall be sent to CARA. The tenure of such committee will be three years. The composition of this committee shall be as under: 35
  36. 36. State Advisory Committee on Adoption 36
  37. 37. Sl. Members No. Designation No. 1. Secretary, Women & Child Development or the Administrative 1 Chairman Department for Adoption Programme 2. Director, Women & Child Development or the concerned 1 Member Directorate for Adoption Programme. Secretary 3. Representative of State Health Department 1 Member 4. Representative of CARA on invitation 1 Member 5. Programme Manager, SARA 1 Member 6. Chairperson/Representatives of Adoption Coordinating 1 Member Agencies 7. Representatives of SAA by rotation 2 Member 8. Expert in the field of Child Rights and Child Protection 1 Member 9. Legal Expert 1 Member 37
  38. 38. 10. Representative of CHILDLINE Nodal 1 Member 4.10 SARA (State Adoption Resource Agency) In order to support CARA in promoting in-country adoption and regulating inter-country adoption, ICPS shall support setting up of a State Adoption Resource Agency in every State/UT. Such SARA will coordinate, monitor and develop the work of adoption in the State and work as a bridge between State Government and CARA. In fact it will function as state nodal body on adoption matters which will maintain state level data base from the admission level till such children get adoption decree and follow up report for a period of 2 years. 4.11.1 Role and Functions SARA shall liaise with DCPU(District Child Protection Unit) at District levels and provides technical support to the Child Welfare Committees as and when required. • Its aim will be to work with the sole objective of watching the best interest of children, to make every effort to find a suitable Indian family within the district, state or within the country, ensure that every child shall be offered for the inter-country adoption when all possibilities for placing the child in in-country adoption have exhausted. • All PAPs registration records shall appear in the data bank maintained by SARA, the moment they register with a SAA, ACA and DM in a Distt. the records will be sent to the nodal body immediately. • SARA will separately maintain a list of all such Homes or Agencies handling in-country and inter-country adoptions and will maintain a list of all children who are declared legally free for adoption by the competent authorities in these institutions. • SARA to facilitate matching the list of PAPs with that of available children with the help of SAAs. It has to ensure that no birth mother/parent(s) should be forced to give up their child for monitory or any other consideration. • SARA shall monitor the adoption programme and the activities of all SAAs & ACAs within its jurisdiction. • SARA shall receive at the earliest information from SAA on admission of children, in case of death of any child, legal status and adoption status, adoptive parents registered with the SAA in the given format till online system becomes operational and as such maintain a State level database of all adoptable children and all PAPs. • All state level information compiled by SARA along with children free for inter-country adoption shall be furnished to CARA on monthly basis till online system becomes effective. 38
  39. 39. • It will coordinate the work of all its Member Agencies and other Child Welfare Institutions in the field of Indian adoption. • It shall call for a periodic meeting of Adoption Advisory Committee at least one meeting in each quarter. • It shall separately register Indian PAPs and prepare a combined list of PAPs from the data available from SAA sources and its own. Before issuing Clearances for inter-country adoption in case of PIOs/foreign PAPs, SARA shall exhaust such list who are in the queue for domestic adoption. The decision of SARA shall be final in cases of in country placements. • If at the end of 60th day, no suitable Indian adoptive parents are found, the SARA will give a Clearance Certificate to the child placed under its assistance after seeing the child and verifying all relevant documents to be placed with foreign adoptive parents. The Clearance Certificate must include a current photo of the child. • In cases where CARA Guidelines are not being followed by any RIPA, the concerned SARA will bring it to the notice of CARA. • The SARA shall undertake programmes for promotion of in-country adoption and involve itself in training and development activities including enforcement of strict criteria on quality childcare, health and hygiene at SAAs. It will take notice of any irregularities or neglect of children and further initimate the State Government or CARA as the case may be. • Besides monthly reporting, all SARAs shall submit to State Government and CARA an annual report including an audited statement of accounts and activities conducted throughout the year. • If there is no SARA in particular state, until the SARA is set-up, the concerned department of State Govt. may discharge all such functions of SARA with the help of ACA. • It shall function as the State level Resource Centre to coordinate, monitor and develop the adoption programme in the State; • It shall facilitate the setting up of SAAs and will provide legal recognition to SAAs and maintain a comprehensive list of such agencies; • It will ensure that all adoptions/permanent placements of children are done in accordance with the Guidelines of the Supreme Court of India and existing policy of Government of India and promote in-country and regulate inter-country adoptions in coordination with CARA; 39
  40. 40. • SARA shall maintain a centralized (state-specific) database of adoptable children with the help of District Child Protection Units, CCIs, SAAs and ACAs; • It shall supervise the work of Adoption Coordinating Agency (ACA) and Specialized Adoption Agencies (SAA) and ensure coordination between them within State and enhance capacity of those working in the adoption system; • It shall provide comprehensive adoption data to CARA on monthly basis; • It shall suggest necessary punitive action to State Government when malpractices occur in the adoption programme whether by licensed /recognized adoption agencies or by unlicensed individuals or organizations; • It shall carry out all other functions as directed by State Government and CARA envisaged under ICPS(Integrated Child Protection Scheme) and take help of DCPU to carry out its mandate. Inspection/monitoring of Adoption Agencies SARA shall call for information and data every month from all SAAs in order to monitor the functioning of these agencies. The data shall be called for in a proforma to be prescribed by the Central Adoption Resource Authority. An annual report and audited statement of accounts shall be received from all Adoption Agencies. Monitoring should include visiting the care settings in which they live, and undertaking investigations into any alleged situation of violation of children’s rights in those settings, on complaint or on its own initiative, recommending relevant policies to State Government, physical and mental status of children etc. SARA has to conduct frequent inspections comprising both foreseen and unannounced visits, involving discussion with and observation of the staff and the children. To the extent possible and appropriate, inspection functions should include a component of training and capacity building for care providers. SARA will periodically and at least once a year, inspect all SAAs in order to verify the following:- • That adoption as an activity is being pursued by the organization as a welfare measure in the interest of children and not as a commercial activity. • That proper record is being maintained for children admitted to the homes. • That the children admitted are provided with quality child care and basic minimum facilities for their care, education and development in the institution or Foster Homes. 40
  41. 41. • That lists of persons interested in adopting a child are being maintained by the organisation regularly. • That the accounts of the organisation are being maintained and audited annually without delay and that the auditor’s reports confirm that the accounts are fair and accurate; that any organisation which is in receipt of foreign funding is duly registered with the Ministry of Home Affairs and has otherwise complied with the provisions of the Foreign Contributions (Regulation) Act, 1976. • That the organisation is receiving regular progress reports about the well-being of children given in adoption. • That qualified staff having social work experience are employed by the agency/organisation to supervise the care of children or they have access to such staff. • That in the case of children placed in pre-Adoption care/foster care with prospective adoptive parents, the cases have been legalized. • A separate register is kept for children given in pre-adoption foster care in all cases. • That a Central Register of prospective adoptive parents is maintained. • That there are sufficient carers in residential care settings to allow individualized attention and to give the child, where appropriate, the opportunity to bond with one of their number. Carers should also be deployed within the care setting in such a way as to implement effectively its aims and objectives and ensure child protection. • That before a RIPA proposes to place a child in the Inter country adoption, it must apply to the SARA for assistance for Indian placement. • During inspection, SARA has to scrutinize all records and registers as provided in Part V of the Guidelines. Besides, relevant information on sources of the children, referrals to SARA for placement with Indian parents, cross verification of referrals with SARA records, adoption fee received from PAPs, follow-up of children placed in adoption, qualification and motivation level of staff and health conditions of children. • Particularly, SARA has to see about its family preservation efforts, whether unwed mother / pregnant woman are kept in the Home or a separate Home is there for them; if so, whether counseled to keep these children and told of alternatives and support services available; if a child is being surrendered by a parent other than unwed mother, then reasons, and if any other alternative support or counseling has been done etc. 41
  42. 42. • It shall work for the training and support of professionals, improvement of the quality of child protection services, improvement of the legal framework for intervention in tune with the UN Convention on the Rights of the Child. • In addition to the above, the State Government has to verify the records that are maintained in case of all inter-country adoptions. Issue of SARA Clearance • SARA will issue clearance for inter-country adoption within 10 days in case of older children above 6 years, siblings or twins and Special Needs Children as per the additional guidelines issued in this regard. • In case the SARA cannot find suitable Indian parent/parents within 60 days, it will be incumbent upon the SARA to issue a Clearance Certificate on the 61st day. • NRI/OCI parent(s) (at least one parent) holding Indian Passport will be exempted from SARA Clearance, but they have to follow all other procedures as per the Guidelines. • The Clearance Certificate (CC) stating that all efforts to find a suitable Indian family for the child within the time frame have been exhausted and hence the child is released for inter-country adoption, shall be co- signed by the Director concerned (DWCD/Social Welfare) and the Chairperson/Secretary of ACA. However, in absence of the Director, the Programme Manager, SARA shall be empowered to be the co-signatory on the Clearance Certificate. 4.12 CWC (Child Welfare Committee) Composition of the CWC, tenure of the Committee, qualifications of Chairman and members of the Committee, conditions for their selection and disqualifications, allowances, sitting, role and functions, procedure in relation to the Committee and, production of a child before CWC procedure for inquiry, production of a child before the Committee shall be as per JJ Model Rules (2007) or its corresponding State JJ Rules. CWC shall determine legal status of all orphan, abandoned and surrendered children. It shall work as a single window system in case of all such children for declaring children legally free for adoption. However, it will not be involved in placement activities. The procedure in regards to production of a Child before CWC and further its declaration about the Child’s legal status shall be as per Rules under JJ Amendment Act 2007. CWC shall send report on children declared free for adoption to SAAs, ACA and SARA. 42
  43. 43. Transfer The issue of transfer of a child from one to another institution, say from CCI/unrecognized agency to SAA has to be dealt carefully and in such case, an orphan, abandoned or surrendered child for non-institutional care shall be transferred as far as possible to the nearest SAA by an order of the nearest CWC. All other requirements and procedures shall be applicable as provided under the JJ Rules to be framed by State Government or Model JJ Rules-2007. No child can be transferred from one place to another within the state without the consent of concerned CWC. The CWC shall facilitate transfer of children at all levels for either their restoration to their families or placing the child in long or short-term rehabilitation through institutionalization, adoption, foster care and sponsorship. In such matters, the CWC may be guided by the simple logic that in the best interest of a child, the child needs to be transferred to the nearest SAA. In case the agency has its own unit within the state, such transfer to its own unit only may be permitted after the child is declared free for adoption. Inter-state transfer can be done with the agreement of both the State Governments through their Directors/Commissioners of the concerned Departments in the best interest of the child with the help of SARA. Transfer of the child should be accompanied by available documents pertaining to its admission, preliminary case history, documentary evidence to prove that the child is legally free for adoption, and a permission letter of transfer of the child. The SAA shall verify all the facts before accepting the child, as it is legally responsible for the placement. In case in a SAA, a child is not able to find a family within 6 months, in such case the child may be transferred by CWC to the nearest SAA/RIPA in the state for further rehabilitation SARA has to ensure that no orphan, abandoned or surrendered child is institutionalized without adequate reasons. 4.13 Birth Certificate issuing Authority 43
  44. 44. Birth registration of a child is mandatory. The SAA has to retain the name of the child if already known or otherwise has to give him/her a new name. Birth certificate shall in case of an orphan, abandoned or surrendered child shall be issued based on court order. In case of a surrendered child, the SAA shall record the exact time and date of birth of the baby before taking custody of the baby. In case of abandoned child, where the date of birth has not been recorded officially anywhere, the Adoption Agency concerned must make an application to the local Magistrate along with any other material which the Adoption Agency considers relevant in the form of an affidavit made by a responsible person belonging to the Adoption Agency. Such information may also be supported by an assessment of the civil surgeon. The local magistrate will then pass an order approving the particulars to be entered in the birth certificate and on the basis of the magisterial order; the requisite certificate will be issued by the local birth certificate issuing authority of the city/town/area where the child has been found. This process shall be initiated only after the adoption is finalized, so that the particulars of the adoptive parents are available for inclusion in the certificate. In case the child has attained the age of three, and the adoption has still not been finalized, the Agency may obtain a birth certificate, if it is found necessary, after informing the court in the form of an affidavit: That to the best of its knowledge the child has attained the age of three years; a. That his/her adoption has not been finalized and is likely to take some time or may never be finalized in all probability; b. That a certificate is required for educational/medical/legal purposes or any other reasonable purpose, which may be specified. c. That person(s) will stand in as local parents to the child (this person/these persons shall be a responsible person/responsible persons belonging to the agency) till such time he/she attains majority, or is adopted, whichever is earlier. In such cases a second birth certificate may be issued after adoption to provide for a change in the name/names of the child and the adoptive parent(s) after obtaining an order to that effect from the court, which had passed order for issuing the original birth certificate. d. In the birth certificate itself, the name of the city or village of birth may figure instead of the name of the Orphanage and the name of the adoptive parents may appear as “parents”. ***** PART-V ASSOCIATED AGENCIES: ROLE & FUNCTIONS 44
  45. 45. 5.1 SPECIALIZED ADOPTION AGENCY (SAA) (i) SAA (Specialized Adoption Agency) In order to facilitate the placement of orphaned, abandoned and surrendered children for adoption, the Juvenile Justice (Care and Protection of Children) Amendment Act 2006 empowers the State Government to recognize one or more of its institutions or voluntary organizations in each district as SAA for placing children in domestic adoption. The SAA shall work under the overall supervision of SARA. In order to run a SAA, a Child Care Institution (CCI) must be registered under the provisions laid down by the Juvenile Justice (Care and Protection of Children) Amendment Act 2006 under Section-34(3). The State Government shall recognize such CCI as SAA under the provisions of Section-41(4) of the Act. A SAA may be an NGO or Government run Home getting grants from central government to place children in domestic adoption or licensed by State Government for such purpose. ii) RIPA(Recognized Indian Placement Agency) CARA is empowered to give special accreditation to SAAs to place children in inter-country adoption in accordance with the provisions laid down under Hague Convention on Inter-country Adoption. CARA shall recognize/accredit selected SAAs as Indian Placement Agencies for Inter-country Adoption (RIPA) based on State Government’s recommendation. RIPAs shall function as accredited bodies as per the Hague Convention on Inter-country Adoption 1993. As per article 11 of Hague Convention on Protection of Children and Cooperation – 1993: An accredited body shall – a) pursue only non-profit objectives according to such conditions and within such limits as may be established by the competent authorities of the State of accreditation; b) be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of inter-country adoption; and c) be subject to supervision by competent authorities of that State in regards to its composition, operation and financial situation. Role and Functions of SAA 45
  46. 46. SAA has to motivate people to adopt, match home study with the child study report possibly by a Committee constituted for the purpose, organize training and development activities to spread awareness about the programme, promote ethics that may include respect for human dignity, respect for moral integrity. SAA should retain professional social worker/counselor having Master of Social Work or Psychology to deliver best service to the client. Counselling service to unwed mother/biological parents, older children and adoptive parents should be confidential, complete, appropriate and prompt. The entire programme of child rehabilitation should be seen purely as a welfare measure and not as a sort of profit. It has to dispel all mis-misinformation related to child adoption, educate and enrich the staff working in the Agency in early childhood care, guard itself against the violations of established norms and rule of law and should have a multidisciplinary team to put holistic approach to the very cause of adoption. Every SAA shall maintain a separate file for each child with the child's complete case history. Every child should have a Child Study Report, which shall be shown to the prospective adoptive parents. Format of such a report is placed at Annexure- . SAA may lodge complaint with CWCs and police authorities if nursing homes/hospitals are found involved in Illegal adoptions. SAA has to carry out such functions as mentioned in the following paragraphs. Developing good practice SAA is required to promote non-institutional care and ensure every child’s right to a family. It has to strengthen the family as a unit and prevent family disintegration and develop preventive, supportive, community-based, family- oriented outreach programmes for children in need of care and protection as defined under JJ Amendment Act, 2006. Determining Adoptability of a Child A child’s adoptability must be established before a particular matching is considered. Adoptability establishes that a child has no legal claimant. When the child seems legally adoptable because of parental consent, SAA has to ensure that the consent is freely given, without pressure, without material compensation, or otherwise. The SAA must counsel and assist the parents of the child to consider alternatives other than adoption, ensure that the parents are informed of the possibility of a future contact in the event of a search for origins by their child and in such cases, the biological parents would be required to cooperate with the SAA to meet the child. Online/monthly Reporting 46