An Unvocal Area Of Adoption

Karan Thukral

17 Aug 2020 6:54 AM GMT

  • An Unvocal Area Of Adoption

    “There can be no more intense discovery of society’s spirit than how it treats its youngsters.” -Nelson Mandela

    Inter-country adoption is an inexorably normal type of family development. It very well may be characterized as a reception of a kid by an individual of another nation.

    In the course of the most recent ten years the number of children who are received by families who live outside the birth country of the child has increased significantly. The increasingly globalized world is obscuring the edges of racial, ethnic or national personalities and opening the doors of a forever home for these children.

    The expansion in the number of children being received by families from different nations has additionally been the reason for a colossal increment in Public Policy Controversy, prompting The Hague Convention and Treaty on International Adoption, and various nations changing their inside laws and approaches, to regulate intercountry adoption practices. It has likewise prompted a genuine lessening in the opportunity for a huge number of kids who need families to ever have this chance or to gain from this opportunity early enough in their lives to get away from the assaults of absence of sustain, regulation, hunger, and lack of educational facility.

    A survey of the examination of results for children embraced globally finds that the kids for the most part do very well. Connection, personality, and solace with appropriation issues are commonly answered to be acceptable. Universal adoptee regularly sees racial segregation issues as more disturbing than issues originating from adoption. The rates at which international adoption upset or lead to the return of the kid to the pre-supportive condition are proportional to those for domestic adoptions. Nonetheless, the procedure in regards the repatriation of the child has not been clarified by the legislation across the world including India.

    In lieu of flags raised above, focus has to be shifted towards the only regulatory legislation dealing with inter-country adoption in India, The Juvenile Justice (Care and Protection of Children) Act, 2015 read with Adoption Regulations, 2017. The Act of 2015 was passed by the Parliament of India amidst intense controversy, debate and protest of many of its provisions by Child Rights Fraternity. The Act created a universally accessible adoption law for India, overtaking the Hindu Adoptions and Maintenance Act, 1956 and the Guardians and Wards Act, 1890 thereby trying to ensure the filling of existing gaps and loopholes in the system.

    Adoption as we know and believe is the act of taking something as your own. It usually refers to the legal process of becoming a non-biological parent more often referred to as the adoptive parent. Adoption can be the most beautiful solution not only for a childless couple and single people but also for homeless children desperately in need of a family environment crucial for their overall development. Howsoever, a failed adoption can equally be a nightmare if not cumbersome for a child who is unable to adjust within a family. The point of origin of this paradox emanates from the fact that legislation that promises to ensure the paramount interests of a child is unable to speak much about the instances of dissolution of an adoption. The aforementioned Juvenile Justice Act responsible for regulating each and every procedure pertaining to Inter-country Adoption has glorified its essence by placing reliance on the following principles enumerated in Section 3 of the Act as "Principle of Best Interest, Principle of Safety and Principle of Repatriation and Restoration".

    Questions and doubts related with affirmation of these principles are very much alive for they have been beautified in the legislation however when it arrives at the stage when it demands real application, they seem to stay on paper. Apart from the capability these principles carry within them the act has kept itself away from elaborative provisions concerned with adoption dissolution, corresponding repatriation and restoration of a child.

    The Adoption Regulations of 2017 has laid down contents for a follow up procedure in case the adopted child is unable to adjust in the adoptive family or that the continuance of the child in the adoptive family is not in the best interests of the child. Regulation 19 throws certain light on the withdrawal process of the child in a disrupted adoption case. Even though the regulations are capable of demarcating the crucial responsibilities vested in the Authorised Foreign Adoption Agency or Central Authority in facilitating the dissolution or disruption process but till date clarity pertaining to this aspect could not be obtained.

    Regulation 40 seems to be ahead in stating about the repatriation process that is to be undertaken by Indian diplomatic missions in consultation with local authorities, adoption agency concerned and the Authority. It is to be borne in mind that the role of the abovementioned authorities towards the welfare of the child remains and holds its status as a statutory provision on paper. Till date there has been no apparent and sharp procedure for the actual functioning of the process with regard to dissolution or disruption of adoption. It is pertinent to state that the law specifically goes on to say that in case of disruption of adoption, a report shall also be sent to the concerned authority enumerating the grounds and reasons that lead to such disruption. However, the focal point remains that had the process been in full force, such report itself would have been vocal enough to depict the success or failure of adoption. In consonance with whatever the outcome of adoption is which comes into light within 6 to 24 months of a completed process, it can easily be culled out whether the principle of best interest has been successfully implemented in adoption or not.

    Like any other law though a systematic step by step monitoring and a surprise check of the role being performed by these statutory provisions happens to be the need of the hour to actually look how these regulations have been implemented. It is feared that it will bring into focus the functioning of certain authorities assuring the citizens of this country with their assistance even beyond the boundaries.

    From regulations, the focus pertaining to adoption be shifted to the authorities vested with powers to make sure that the process reaches its conclusion and not just at the stage of conclusion but also with a pinch of success.

    It is incumbent to stress on the functioning of the only governing body which regulates intercountry adoption in India, "Central Adoption Resource Authority (CARA)".Having attained the highest status for regulating a procedure which is not just a formal procedure but involves investment of emotions, time and the overall development with regard to a family, the authorities involved in the process seem to be reluctant to effectuate the process in a humane manner.

    Like certain other statutory laws framed along with the need and urge of the same, Juvenile Justice Act, 2015 also traces its origin from a parent legislation i.e. the Hague Convention on Protection of Children and Co-operation brought into existence on 29 May, 1993 that in turn reaffirms the intent behind the Juvenile Justice Act pertaining to the principles of best interests, safety and welfare of a child.

    The Juvenile Justice Act, 2015 however cannot be entirely said to be an outcome of the Hague Convention and also contains within it the guidelines provided by the Apex Court in Laxmikant Pandey Vs. Union of India [AIR1984 SC469] that ultimately also lead to the birth of an authority solely responsible for regulating the inter-country adoption procedure.

    Despite various amendments that were needed as per cropped up requirements, this legislation is in existence just without proper claws to fulfill its intent and purpose. A contradictory approach can easily be culled out from the fact that at initial stage when an adoption procedure has to commence, the authorities create a havoc pertaining to the validity of said adoption and would even rule out genuine cases from taking recourse to an otherwise properly formulated legal pathway. However, when in fact the role demands life at its end, it is found to be absent with adopted children left at their behest in a country they can't denote to as their own.

    It can be derived that now it has been accepted that the prevailing legislation exists with gaps and loopholes as common nature, but a factor that cannot be and in fact should not be ignored remains the repatriation of a child gone away from his motherland. A child who has been adopted by foreign citizens can take his own time to either adjust to his new family or will never be able to adapt and would want to go back to the institution he was brought up in. The probability of either of the above two mentioned possibilities must be kept inequality for there is no reason to equate as to how a child might respond to the said adoption process.

    Further more complicating the situation is the age factor of an adopted child. A child below the age of 5 years would ordinarily grow up with an innocent acceptance of his parents however a child more than the age of 5 years can be in a position to frame his mind towards the process and would obviously invite his application of mind in that scenario. Tracing ahead the pathway leading to ultimate repatriation is the point that if aforementioned authorities are not applying the already vested powers to be exercised in case of dissolution or disruption of an adoption, there is apparently no way to make out the will of the child after the process is done away with. Had the follow-up process being given the same weight that is emphasized at the commencement of adoption, a child who is unable to determine his own rights would have always been within the protection of law that promises to offer him the same.

    Further complicating the situation is unaccountable approach held by the departments involved. Having said a lot in respect of repatriation, the topic demands the involvement of factors pertaining to the altered citizenship and immigration issues. As much as it becomes difficult for a child to trace his way back to his motherland due to the absence of functioning and following of regulations specifically enumerated under the law, his status pertaining to citizenship also comes within a red zone. The completion of an inter-country adoption process gifts a child with a new land and corresponding citizenship of the state he ultimately goes to with his/her adoptive parents but the said boon has the capability of transforming itself into a curse when the process meets failure and his citizenship also comes within a radar and ambiguity. The concerned authorities juggle up their role pertaining to this process with no concrete answer or solution. However, there is a higher probability that there is no one to even put forward these questions to them for they work or rather refrain from the same in consonance with each other. The irony remains in the fact that these prevalent and profiled issues exist in the application of a law that is meant to be in existence for ease of innocent children.

    The aforementioned happen to be a trailer of the in-depth discrepancies that exist in the process of inter-country adoption. As much as the initiation of a procedure entails numerous factors for actually bringing it to a conclusion, the law in hand has constantly overlooked the casualties that a child would have to face upon the breakdown of the said process. It is stated with emphasis that Juvenile Justice Act, 2015 happens to be a much-needed push considering the welfare of all those children who were, in fact, devoid of the love of a family, but yet remains mute to the conditions wherein the children are stuck in an atmosphere that in no way helps them to grow.

    An inter-country adoption derived more relevance than an in-country adoption due to the very fact that the latter still leaves scope for the children with regard to their ethnicities, however, in the former adoption scenario a child has to anyhow undergo the obliviousness of a foreign land and nowhere to go in situations where he actually needs help.

    The formation of authorities under the aforementioned legislation was primarily to ensure the functioning of an already cumbersome process but an outright denial and no explanation whatsoever from their end make it difficult for every party involved in an adoption process.

    Furthermore, the discordance between authorities and departments involved appears to be blame-shifting acts with no heed whatsoever with regard to the principles enunciated above and meant for simple beautification of legislation. Not only the above-stated arena is an area of concern, but the fact that despite statutory provisions for a follow-up procedure, the same remains absent in actual practice. Had the authorities been functional enough to ensure that a child who is far away from his land is in reality bearing the fruits of successful adoption, the real picture in respect of this area would have already found light of the day.

    The fact that derives more relevance however is that any actual practice can only be challenged if it is not in consonance with a prevailing provision in a statute. The bigger issue in this particular context remains that the process of dissolution of adoption is a hidden procedure whose veracity can only be checked by the authorities concerned or the Courts claiming and justifying the surety of justice. Despite various precedents by the Apex Court of India reiterating time and again the urge and need to ensure the best interests of children, the same happens to be a talk of town for its relevance and application seems to be absent in reality.

    In a country like India, where its superior most body time and again reaffirms the basic principles with more and more emphasis with regard to child-centric and children welfare laws, the immediate authorities working in that direction seem to be in charge of direct violation of those principles. Certain landmark judicial precedents by the Hon'ble Supreme Court of India always reflect the child welfare centric jurisprudence of our legal system. This affirmation has been beautified in Vivek Singh v. Romani Singh, (2017) 3 SCC 231.

    Furthermore, there has been a detailed elaboration by the Hon'ble High Court of Delhi in PKH v. CARA 2016 about the evolvement of adoption law, its origin, its loopholes in the form of submissions by the parties involved and observations made by amicus curiae in light of welfare centric law the Juvenile Justice Act, 2015 claims itself to be. The Supreme Court has time and again reiterated that welfare of the child is of utmost importance and great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in a foreign country.

    The Hon'ble Supreme Court of India remains and retains its authority through Laxmikant Pandey Vs. Union of India AIR 1984 SC 469, that has ensured and never failed to establish the recurrent need to be borne into mind the betterment of a child who is unable to speak for itself. No matter how far in past it finds its traces, it remains as one of the precedents by the Hon'ble Court looking over the stance taken years back with no jeopardizing of a child's welfare, care and development. It further laid special emphasis on cases where the children sought to be taken in adoption are destitute or abandoned and are living in social or child welfare centres. It becomes necessary to consider what normative and procedural safeguards should be forged for protecting their interest and promoting their welfare. Since an already abandoned or destitute child has underwent the loss of his most beautiful phase in life i.e. his childhood, he shouldn't be allowed to undergo the wrath of his past experiences when it comes to actually accepting a new life with bright future prospects.

    Even though the Juvenile Justice Act, 2015 entails a slight negative aspect to its existence but the same has never culled out as a blot on the legislations pertaining to a child's welfare due to the very existence of an optimistic approach it carries. The Act of 2015 has till date been a home and origin for various parentless children in search of a family capable enough to guarantee them the love and care required for his/her development into a responsible citizen of this country. It can be stated without a doubt that a child in need of care, love and protection can come out to be as a yielding individual for a country when offered the best in his surroundings. The above stated law and corresponding authorities are working in compliance with each other every day to achieve the goals that are still a long way to go. In near future when it hits the final mark it will probably be able to look back and find its own success in the eyes and smiles of thousands of content children.

    Mr.Karan S.Thukral is an Advocate at the Supreme Court of India. Views are personal.

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