Judicial Approach to Principle of Child Welfare in Adoption Laws|Adoption Regulations 2017

Fundamental principles governing adoption

The following fundamental principles shall govern adoptions of children from India, namely:

(a) the child’s best interests shall be of paramount consideration, while processing any adoption placement;

(b) preference shall be given to place the child in adoption with Indian citizens and with due regard to the principle of placement of the child in his own socio-cultural environment, as far as possible;

(c) all adoptions shall be registered on Child Adoption Resource Information and Guidance System and the confidentiality of the same shall be maintained by the Authority.

Child eligible for adoption

The following shall be eligible for adoption, namely:

• (a) any orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee;
• (b) a child of a relative defined under sub-section (52) of section 2 of the Adoption Regulations 2017.
• (c) child or children of spouse from earlier marriage, surrendered by the biological parent(s) for adoption by the step-parent.

Eligibility criteria for prospective adoptive parents- 

• (1) The prospective adoptive parents shall be physically, mentally and emotionally stable, financially capable and shall not have any life-threatening medical condition.
• (2) Any prospective adoptive parents, irrespective of his marital status and whether or not he has biological son or daughter, can adopt a child subject to following, namely;
  • (a) the consent of both the spouses for the adoption shall be required, in case of a married couple;
  • (b) a single female can adopt a child of any gender;
  • (c) a single male shall not be eligible to adopt a girl child;
• (3) No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship.

WHAT IS THE PROCEDURE RELATED TO CHILDREN FOR ADOPTION

Procedure relating to an orphan or abandoned child. 

• (1) The provisions relating to the process of declaring an orphan or abandoned child, as legally free for adoption are laid down in sections 31, 32, 36, clauses (a) to (c) and clause (h) of sub-section (1) of section 37 and section 40 of the Act, as well as under the relevant provisions of the rules made thereunder.
• (2) An orphan or abandoned child received by a Child Care Institution, including a Specialised Adoption Agency, directly without the involvement of Child Welfare Committee, shall be produced before the Child Welfare Committee within twenty-four hours (excluding the journey time) along with a report as per the format given in Form 17 of Juvenile Justice (Care and Protection of Children) Model Rules, 2016 and a copy of such report shall be submitted by the Child Care Institution or the Specialised Adoption Agency, as the case may be, to the local police station within the same period.
• (3) If a child is under treatment or not in a condition to be produced before the Child Welfare Committee, only documents related to the child shall be produced before the Child Welfare Committee within the said timeline and the Child Welfare Committee may visit the ailing child.
• (4) The Child Welfare Committee, pending inquiry, shall issue an order in Form 18 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 for a short-term placement or interim care of the child, as per the provisions of subsection (c) of section 37 of the Act and the sub-rule 26 of rule 18 of the said rules.
• (5) On admission of the child, his details and photograph shall be entered online in the Child Adoption Resource Information and Guidance System in the prescribed format by the Specialised Adoption Agency within three working days of receiving the child, and the photograph of the child shall be changed by the Specialised Adoption Agency every six months in Child Adoption Resource Information and Guidance System.
• (6) For tracing out the biological parents or the legal guardian(s), the Child Welfare Committee, after taking into account the risk factors, and in the best interest of the child, may direct the District Child Protection Unit to advertise the particulars and photograph of an orphan or abandoned child in a national newspaper with wide circulation within three working days from the time of receiving the child and also ensure entry of data in the designated portal in its missing or found column by the concerned Child Care Institution or Specialised Adoption Agency.
• (7) In case where the child is from another State, the publication shall be done in the known place of origin of the child in the local language and such publications shall be facilitated by State Adoption Resource Agency concerned.
• (8) Wherever District Child Protection Unit is not functional, the District Magistrate concerned shall get such advertisement issued.
• (9) In case the biological parents or legal guardian cannot be traced, despite the efforts specified in sub-regulations
• (6) to (8), the District Child Protection Unit shall accordingly, submit a report to the Child Welfare Committee within thirty days from the date of production of the child before the Child Welfare Committee.
• (10) The Child Care Institution or Specialised Adoption Agency shall submit a report to the Child Welfare Committee, immediately on completion of thirty days from the date of production of the child, before the Child Welfare Committee and the report shall include any information revealed by the child during his short-term placement and details of person(s) whosoever approached for claiming the child, if any.
• (11) In case the report from the local police regarding the non-traceability of the biological parents or legal guardian is not submitted within two or four months in the case of an abandoned child less than two or four years of age respectively, such report shall be deemed to have been given.
• (12) The Child Welfare Committee shall use the designated portal to ascertain whether the abandoned child or orphan child is a missing child.
• (13) The Child Welfare Committee, after taking actions as per the provisions of the Act, rules made thereunder and these regulations shall issue an order signed by any three members of the Child Welfare Committee declaring the abandoned or orphan child as legally free for adoption in the format at Schedule I within a period of two or four months, from the date of production of the child before the Child Welfare Committee, in case of a child upto two or above two years of age respectively.
• (14) The inquiry under section 36 of the Act and the order declaring an abandoned or orphan child as legally free for adoption by the Child Welfare Committee under section 38 of the Act shall be completed in the district where the child was initially found, or in the district to which the child is shifted under orders of the Child Welfare Committee.
• (15) The Child Welfare Committee and Medical Examination Report of an orphan or abandoned child shall be prepared in the format at Schedule II and III respectively and posted in the Child Adoption Resource Information and Guidance System by the Specialised Adoption Agency maximum within ten days from the date the child is declared legally free for adoption and the details shall be updated on Child Adoption Resource Information and Guidance System every six months or whenever appreciable physical changes are observed in the child.
• (16) The Child Welfare Committee and Medical Examination Report shall be made available in English, apart from the local language.
• (17) The District Child Protection Unit shall facilitate the Specialised Adoption Agency in uploading the Child Study Report and Medical Examination Report in Child Adoption Resource Information and Guidance System, in case the Specialised Adoption Agency is facing any technical difficulty.
• (18) The procedure for declaring a child of parents with mental disability as legally free for adoption by the Child Welfare Committee shall be done on the basis of a certificate reflecting mental disability of the parents from the medical board constituted by the Central Government or the State Government, as the case may be, as per guidelines for mental illness issued by the Government of India in the Ministry of Social Justice and Empowerment from time to time.
• (19) In case of siblings or twins, the Child Welfare Committee shall specify the status of the children as siblings or twins and declare the children as legally free in a single order.

Follow-up of the progress of the adopted child

• (1) The Specialised Adoption Agency which has prepared the Home Study Report, shall prepare the post-adoption follow-up report on six monthly basis for two years from the date of pre-adoption foster placement with the prospective adoptive parents, in the format as provided in Schedule XII and upload the same in Child Adoption Resource Information and Guidance System along with photographs of the child.
• (2) In case the adoptive parents relocate, they shall inform the agency which has conducted their home study and the District Child Protection Unit of the district where they relocate.
• (3) The District Child Protection Unit of the district of the current residence shall prepare the post-adoption follow-up report and upload the same in Child Adoption Resource Information and Guidance System.
• (4) The Specialised Adoption Agency or the District Child Protection Unit as the case may be, shall arrange for counselling the adoptive parents and adoptee by social worker or link them to the counseling center set up at the Authority or State Agency, whenever required.
• (5) In case the child is having adjustment problem with the adoptive parents, the Specialised Adoption Agency shall arrange the required counseling for such adoptive parents and adoptees or link them to the counseling center set up at the Authority or State Agency, wherever required.
• (6) In case of disruption in in-country adoption. -
  • (a) at the stage of pre-adoption foster care before filing a petition, the child shall be taken back by the Specialised Adoption Agency concerned with information to District Child Protection Unit;
  • (b) at the stage of pre-adoption foster-care after the petition has been filed in the court, the child shall be taken back by the Specialised Adoption Agency and adoption application shall be withdrawn from the court concerned with intimation to District Child Protection Unit;
  • (c) where the child has been taken to another State during the adoption process, the repatriation of the child shall be coordinated by State Adoption Resource Agency in the State where the child is residing and the State of origin.
• (7) In case of dissolution, the application for annulment of adoption order shall be filed in the court which issued the adoption order.
• (8) After disruption or dissolution of adoption, as the case may be, the status of the child shall be updated as legally free for adoption in Child Adoption Resource Information and Guidance System by the Specialised Adoption Agency.