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Now we have a new legislation called "Juvenile & Justice Act, 2015" replacing the JJ Act of 2000. In this new act, adoption has assumed a significant importance with an exclusive chapter. Subscribe and follow this blog for more information in the days to come.

Tuesday, December 15, 2009

Why an Inter-country adoption from India needs to be under the JJ Act?

When the article was published in Times of India on November 16th 2009, about a 14 year old Indian girl being repatriated from the US who was placed in a home under the guardianship for the purposes of adoption, alarm bells seem to have rung loudly in many circles.

Such incidences may be rare but it is one too many to ignore and it is time to find the solution without delay. Before finding the solution, we need to analyze the case to see exactly where the ball may have been dropped.

To foreign citizens, custody of Indian children is given under the Guardians and Wards Act 1890 (GAWA) for the purposes of adoption at a later date to be completed according to the domicile laws of a resident country. Till such a time, the child’s custody remains with the Indian court that had granted the custody. Different countries have different time frames to allow the adoption to be completed. This adoption process needs to be facilitated, assisted and monitored by CARA, Indian adoption agency, and the Enlisted Foreign Adoption Agency (EFFA) to ensure that the adoption is completed by doing post-placement visits to the family by a competent social worker, requiring the family to submit frequent reports and photos and finally submitting the copy of adoption decree granted by the local court etc.

The fact that the child was repatriated indicates that the adoption was not completed for reasons only the custodian family in the US can reveal. Had the adoption been completed, adoptive family would have assumed the rights, privileges and the responsibilities of a legitimate child according to the Hague convention on inter-country adoptions to which India and the United States are signatories. Family would be required to care for the child just like they would in case of a biological child and failing to do so will subject them to the accountability standards of the law.

Now, coming to the solutions, idea of 5000 dollars as a safe deposit is short sighted and counterproductive to the vibrancy of inter-country adoptions. Rather, court may explore the possibility of allowing the inter-country adoptions under Juvenile and Justice Act, 2006 (JJ Act) which allows the adoption process to be completed in India itself.

If the sub section (a) of section 8 of the Guardians and Wards Act, 1890 (GAWA) that states “the PERSON desirous of being, or claiming to be, the guardian of the minor” can entitle a foreign citizen to apply and obtain the guardianship of an Indian child (for the “welfare of a minor” as per the sub section (1) of the section 7 of GAWA) for the purpose of adoption in the domicile country at a later date , clause (a) of sub section 6 of section 41 of Juvenile & Justice Act (JJ Act) which states “The Court may allow a child to be given in adoption - to a PERSON irrespective of marital status or;”can most certainly entitle a foreign citizen to apply and obtain the adoption order (in the best interest of the child as per the sub section (aa) of section of 2 of JJ Act) in India.

If for any reason this cannot be done, then the placement of children under GAWA needs to be strengthened because we can no longer turn the blind eye to the inter-country adoptions by maintaining status quo under GAWA nor can we afford to stop the inter-country adoptions altogether.

Consider these suggestions:

1.Mandate psychological/ psychiatric evaluation of an adoptive child that is older than six years of age.

2.Blacklist an enlisted foreign adoption agency (EFFA) for life if they do not enable the guardianship family to complete the adoption within one year of guardianship.

3.Make the prospective adoptive families to spend not less than one month to spend in India with the adoptive child if they are older than six years of age.

If either of these options (allowing under JJ Act or strengthening the process under GAWA), then the government of India must promulgate a new law to cover the inter-country adoptions without delay which is a requirement for the nations that have ratified the Hague convention on inter-country adoptions.

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