|What is the first step to adopt a child?
The first step in adopting a child from India is to approach an adoption agency in one's country of residence. However this agency should be recognised by the Indian Central Adoption Resource Agency or CARA.
Adoption in India is governed by the Hindu adoption and maintenance act of 1956, applicable only to Hindus. The guardians and wards act of 1890, applicable to Non- Hindus and Juvenile Justice Care and Protection Act 2000 applicable to all Hindus as well as Non-Hindus. The prospective parents are required to undergo a home study report before they get a clearance from voluntary coordinating agency or BCA. BCA gives priority to in-country adoption over inter country adoption that sometimes gives only children with special needs for NRI adoptions.
After the clearance the case is submitted to a District Court and the custody of the child is given to the couple to adopt a child. Ideally the entire process takes 2 months but often stretches up to 13 months. Adoption agencies say that all checks and measures are carried out in good intentions.
Just take us through the whole procedure, that Non-Residence Indians, PIO's, Foreigners need to go through step by step before they can adopt a child? How should they start, once they have decided to adopt a child from India where should they begin?
The first step would be to contact a recognised placement agency either in India or in the country where they live. And should they not have a recognised placement agency in the country where they live they could approach the Indian Embassy there or the Government there who should be able to guide them. If they want to check on the list of recognised agencies because most people would not know whether the agency is recognised or not, please visit the website of CARA. We do have the entire listings of both national as well as foreign placement agencies, so that's step one.
Step 2 is what is called a Home-Study Report, which is basically an assessment by a qualified and a certified social worker, which will be a part of the placement agency or will be a nominated by the placement agency to do the study. And this will basically assess the competence of the eligible prospective, adoptive parents. The age, the family, the income, the mental, emotional, physical, financial competence and medical perhaps of the path to adopt. And after that Home Study is completed, it is sent to the recognised placement agency in India with whom the foreign placement agency has an affiliation.
Which could be the respective state and region where these agencies are?
Most of the foreign placement, infact all foreign placement agencies have an affiliation with one or more placement agencies in India. And the home-study report is then sent there. It is at this stage that based on the Home-Study Report and the profiling of the PAP (prospective adoptive parent) that a child is matched to the parent and once the child is matched then they have to go through what is called a VCA certification that is that child should have been declared a free for inter-country adoptee.
Which means the local agency should have exhausted all possibilities of placing that child within the country. And after exhausting those possibilities they approach, what was earlier known as VCA, the Voluntary Coordinating Agency, and today known as the Adoption Coordinating Agency (ACA), which is the state level coordinating agency and they certify that the local agency has made all attempts to place this child in country and that certification and the documentation is then sent to CARA, for what is called a - No Objection Certificate.
This No Objection Certificate is basically a certification by CARA to the child going across our geographical frontiers and after that the parents with the NOC from CARA and VCA certification approaches the court. They have the 3 acts to choose from either HAMA, GAWA or the JJ act, and depending on which act they choose, they get their decree from the court and they then of course they get the Visa and the Passport to the child and they proceed.
And then they go to their respective country and the adoption is actually completed there, isn't?
Well, that depends now with the coming in of the JJ act.
What is the Juvenile Justice Act?
The Juvenile Justice Act, will give you adoption decree, which is recognised, since it's a legal decree. If you are a Hindu, you can approach the court under the Hindu Adoption and Maintenance Act, HAMA as we call it and its only under the GAWA, that is the Guardianship and Wards Act, that you only get the guardianship decree, which then needs to finally be confirmed with an adoption decree from the country of residence of the adoptive parents.
And on an average in your experience how long does this or should this take if everything falls into place?
The law as well as CARA's guidelines on inter country adoption prescribe ideal time limits for all these procedures. So on an average if all those time limits are here to which as far as I understand in most cases are adhered to should take anything say between 8-10 months. I am keeping it a little on the outer side but there is one part of this procedure where we for obvious reasons cannot fix the time limit and that is of the matching of the child.
What are the laws really under which adoptions are regulated in India and are they the same in for inter country adoptions as well? How does the JJ Act specifically if at all impact NRI adoption cases, if you could just take us through the legal aspect, what are the acts, what are the regulations?
The Juvenile Justice Act is in matter, which is being tested, and even today most of the courts proceed under the Hindu Adoption and Maintenance Act or the Guardian and Wards Act. The Guardian and Wards Act is applied to non Hindus even in India or even if they are residents abroad because that is the only act which actually permits a person to obtain custody of a child till the child attempts majority (he did say majority and not maturity) at the age of 18. On attaining maturity or after attaining maturity the Indian families are at a disadvantage because they cannot complete the process of adoption being non-Hindu.
So they continued just being guardians?
They continue to remain guardian. So at the age of 18, the child might just decide to say thank you very much, it's been very nice of you to look after to me, I am now going. The parents have no recourse. In the western countries or in other countries after you are appointed as a guardian, you are entitled to complete the adoption proceeding in those countries by the applicable laws.
Which means from guardianship you can attain parenthood?
Yes, in foreign countries not in India. In India the only act which permits adoption is the Hindu Adoption and Maintenance Act and that applies across the board the Hindus irrespective of the country where they residing. They can invoke the Hindu Adoption and Maintenance Act for the purposes of adopting a child and succeed in getting an adoption decree with the court in India. The Juvenile Justice Act one has to read with a certain amount of trepidation because the legislative functions, which should have been incorporated in specific terms, have been kept a bit vague.
Is there a need to create a law for Indian adult adoptees to come back to India and who want to search for their roots because the law and the domicile agencies do not give any identifying information and don't give much help to search for their natural parents?
It is not a law; it is a right, which an individual has to trace out his antecedents. But here are the two factors, which you must remember children who come from orphanages come in situations where their antecedents are sort to be hidden by their unwed mother. An unwed mother comes to an orphanage to give birth to a child because she is not in a position to go back to the society. She comes and gives information which she deems it to be her correct, we know that the orphanages may or may not receive correct information from a person who may be chastised by society in due course of time.
Second is that a large number of cases where policemen come and pick up and have found children lying on the street and have taken them to juvenile court and some parents is from there. There is no trace of antecedents of the parents you cannot trace out who they are. Third, there are circumstances where natural parents have come and abandoned children for various reasons. When they have done that they have chosen to severe connections with the child. It is a question of how much you would like to encourage this because the child might have an impression that his natural parents might want him back but if the natural parents wanted him back they wouldn't have quit him or abandoned the child with the orphanage.
How much can you breach this initial trust on the basis of which the child was placed to the family? These are very powerful moral questions that arise because if it right of the person abandoning the child or is it right of a person who has been abandoned to seek and trace out his roots. One has to work out a balance here to say that you are entitled by right, yes you are entitled by right but to what extent can the right be exercised.
I recently adopted a 4-year-old boy from Pune but it took 2.5 years to complete the process. The agency that I had hired and paid in advance did absolutely nothing to help me out, we had to complete all the legalities in India on our own without any guidance or help. Despite this CARA re-licenses these agencies year after year. Shouldn't CARA ensure that these agencies that they are not licensed and there has to be an assessment system to ensure that they are doing their work?
It is a feedback prospective adoptive parents and therefore in my view to be taken extremely seriously. Well the good news is that we have now worked out a concept paper for financial rationalization and transparency whereby we will be holding agencies and all actors in this field accountable to giving us their financial details.
We do understand that despite a supreme court ruling in the LK Pandey case whereby the court did lay down what should be the maximum fee and we find that it is being followed more in the breach than in the acceptance so we do believe that we have the force of the Supreme court behind us and of course the Indian governments policy. We are working out a computerized data which will call into accountability all financial details of the agencies and we are collaborating with UNICEF on this and we hope to have it up in running perhaps in a year from now.
I say a year because it is a massive exercise and are planning to bring in a whole lot of facts and figures and the third thing about how to get CARA to listen to your woes so at least visit our website send us questions, call me up, I am perfectly willing to function as a switch board operator and give whatever advise or guidelines that I can.
There are no clear directives in the Indian legal system when it comes to hearing adoption cases specially inter country adoptions as a result; case of international adoption tend to be less of a priority than perhaps a local case, now why isn't something being done to avoid delays like that and to ensure that these are adoption cases given priority?
That Basic perception is wrong, priorities are given to these cases and the Supreme Court also contemplates the time frame of 2 to 21/2 months in disposal of these matters. Actually 2 months is what the supreme court says and court try and finish of these cases within 2 months, once you enter the court premises with your cases they disposed of with due expedition and they are given more priority then the local case exceptions being the criminal jurisdiction matters which are also concurrent to the district judge. But by and large it will be incorrect to say that priorities are not given on time schedules to these cases.
Why NOC seem to vary in time lines for each area for example between Pune and Mumbai? Why the discrepancy? What exactly is the process within CARA?
The prescribed time limit is 5 weeks for a NOC and the way we tackle NOCs is strictly logical which should be the way it is first come first served, so it may seem at the time your application for an NOC comes in lets say we haven't got too many cases in which case we have and NOC committee meeting once every week and its possible that say that particular 5 week period we have got only 20 cases which means they can all be tackled at the first NOC committee meeting itself. But say in that 5 weeks period we get 200 then obviously it may take second or the third NOC committee meeting if you are down in the chronological ladder for your case to come up but otherwise the time limit is 5 weeks and we haven't violated it as far as I know unless there has been a genuine reason for it, medical problems or something else.
A child was adopted from India and raised in the US by American parents. Now whether the child can till be defined as a PIO. Also she did not have a choice in her adoption which will she be able to explore dual citizenship in India as and when that happen?
I would think so because the PIO is a person of Indian Origin, not withstanding adoption in US, she continues to be a person of Indian origin and she would be entitled to obtain all the benefits which if you are a PIO in accordance with the policies of the government of India.
Source: South Asia World