Abstract
Families are the natural environment for children to grow. Children have the right to be cared for by their parents; parents have a responsibility to provide for their children’s upbringing and development. States have the responsibility to provide special protection and assistance to millions of children in South Asia who no longer have families, who have become separated from their families, or whose families represent a serious danger to their health or development. There is a spectrum of services available to children whose parents no longer provide adequate care, known as Out of Home Care or Alternate Care.
There are growing concerns about the situation of children outside parental care and the provision of suitable alternatives in South Asia. These children often find themselves at a high risk of violence, exploitation, abuse and neglect, and their well-being is often insufficiently monitored. An inadequate care environment can impair a child’s emotional and social development, and leave children extremely vulnerable to abuse and exploitation, including sexual abuse and physical violence.
Across the South Asian region, the combined impacts of widespread poverty, prolonged armed conflict, frequent natural disasters and the spread of COVID-19 is exerting extreme pressure on families and communities, as well as on the limited social services available to support them.
The present article aims to study the various policies, laws & schemes supporting two forms of alternate care, namely, foster care & adoption in South Asia, identify the gaps in the implementation and make certain recommendations.
All countries in South Asia namely Afghanistan, Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka have ratified the United Nations Convention on the Rights of the Child (CRC), which commits the governments to ensuring that institutional care will be used only as a last resort. According to Article 20.1 of the CRC, governments have the responsibility to provide alternative care, referring to the spectrum of services available to children whose parents no longer provide adequate care.
Minimum standards should include provisions that support the rights and duties of parents according to the best interests of the child (Article 3), the participation of the child in decisions regarding his or her placement (Article 12), and the right of the child to life, survival, and development (Article 6).
The South Asian Regional Convention on Child Welfare is another international legal instrument that expands on the guidance and responsibilities outlined in the United Nations Convention on the Rights of the Child. It reaffirms the recognition that the family is the fundamental unit of society and the ideal nurturing environment for the growth and well-being of children.
However, family and community-based forms of care, which are almost always better alternatives for children than institutional care, are little explored and promoted in this region. Alternative care comes in many different forms. In South Asia, most children outside parental care live with their extended families in kinship care arrangements. Other types of alternative care, such as adoption and foster care (and many other variations of family and community-based care) are also practiced to a limited extent. In South Asia, children outside parental care and children at risk of separation are in need of protection and support.
The objectives of this study are to examine the present concepts of alternate care available to children in need of care and protection of children in their recovery and reintegration, acknowledging their advantages and limitations. This study is indirectly identifying paradigms or the lack of these to establish the groundwork for psychosocial care services that are based on professionalism, accountability and basic standards of quality care. This is also an attempt to address key issues of practical concern to those working with children placed in alternate care in South Asia.
Alternate Care: Types of Models Available to Children Who Are Out of Parental Care in South Asia
Informal family and community-based care arrangements are the most common type of alternative care provided in South Asia as these community-based arrangements are the community’s traditional response to supporting children living outside parental care. These arrangements are usually spontaneous and can take place both within the extended family (kinship care) as well as outside the extended family.
In practice, many different variations of informal family and community-based care arrangements are observed. The law in some South Asian countries specifies detailed priorities governing which family members should take custody of children outside parental care. Children may also be cared for by unrelated members of their communities.
Kinship Care
Kinship care, the spontaneous arrangement of care for a child within his or her extended family, represents the primary response to children outside parental care in South Asia. There are no regional estimates for the number of children in this type of alternative care.
Kinship care often protects child’s identity through the preservation of family relationships, cultural norms and social networks. However, living with relatives provides no guarantee of a child’s welfare or protection while in care. This form of care is unrecognised by national governments and kinship care arrangements are unsupervised, unregulated and unsupported across South Asia.
Foster Care
Foster care is defined as the placement of a child who has become separated from his or her family, or who cannot be left with his or her family, in the care of another family or individual. Unlike adoption, it is generally considered a temporary arrangement to be used while the child’s own family overcomes a problem that prevents it from offering proper care to the child, or while a more permanent placement is being sought. Foster care generally has no permanent consequences for the legal relationship between a child and his or her biological parents.
In practice, foster care takes many different forms. In some countries the term is used for placement with a family or persons to whom the child is not related, while in others it is used for the formal placement of a child with relatives other than a parent. Sometimes foster care can also become a long-term arrangement. Furthermore, foster care is not limited to the care of a single child, but can include multiple children in a single foster family. Sometimes foster care for older children takes the form of independent, family supervised living arrangements. The value of foster care is that it can offer flexible and family-based environment for children outside parental care. The use of foster care in South Asia is limited and in many cases (even excluding kinship care arrangements) foster placements are informal. Only India and Sri Lanka provide for foster care arrangements in national legislation.
India
Law for Foster care
In India, The Juvenile Justice (Care and Protection of children) Act, 2015, Section 1(29) states that ‘foster care’ means placement of a child, by the Child Welfare Committee for the purpose of alternate care in the domestic environment of a family, other than the child’s biological family, that has been selected, qualified, approved and supervised for providing such care.
Section 1 (32) ‘group foster care’ means a family-like care facility for children in need of care and protection who are without parental care, aiming on providing personalised care and fostering a sense of belonging and identity, through family-like and community-based solutions.
Section 44 (1) The children in need of care and protection may be placed in foster care, including group foster care for their care and protection through orders of the Committee, after following the procedure as may be prescribed in this regard, in a family which does not include the child’s biological or adoptive parents or in an unrelated family recognised as suitable for the purpose by the State Government, for a short or extended period of time.
(2) The selection of the foster family shall be based on family’s ability, intent, capacity and prior experience of taking care of children.
(3) All efforts shall be made to keep siblings together in foster families, unless it is in their best interest not to be kept together.
Guidelines
The Ministry of Women and Child development has also drafted the Model Guidelines for Foster Care, 2016. The Guidelines derive strength from Section 44 of the Juvenile Justice (Care and Protection of Children) Act 2015, the Integrated Child Protection Scheme (ICPS) and the United Nations Convention on the Rights of the Child (1989). These Guidelines do not include pre adoptive foster care as Regulations for Adoption 2016 framed under JJ Act, will apply.
Scheme
The Integrated Child Protection Scheme (ICPS)
It is a centrally sponsored government–civil society partnership scheme to institutionalise essential services and strengthen structures for emergency outreach, institutional care, family and community-based care, counselling and support services at the national, regional, state and district levels; in order to strengthen child protection at family and community level, create and promote preventive measures to protect children from situations of vulnerability, risk and abuse;
Recently, this year a PIL was filed by Advocate Ashwini Kumar Dubey who has sought directions to declare that the discriminatory grounds of Adoption and Guardianship are violative of Articles 14, 15, 21 of Indian Constitution and to frame Uniform Guidelines for Adoption and Guardianship for all citizens irrespective of Religion.
Advocate has contended that the current practice of adoption is blatantly discriminatory as Hindus have a codified law of Adoption but Muslims, Christians and Parsis do not have it in India.
Sri Lanka
Policy
Sri Lanka’s National Policy on the Alternative Care of Children outlines a comprehensive range of alternative care options and encourages the reforming of all formal structures that provide at-home and out-of home services for children deprived of care and protection or at risk of being so. This policy also extends to children under care of the Juvenile Justice System. It provides policy solutions to programming for children at risk of family separation and facing deprivations such as child abuse, neglect, child labor, poverty, addiction, imprisonment, human trafficking, mental and physical disabilities, HIV/AIDS, domestic violence, orphanhood, abandonment and displacement and so on.
Considering the economic, social and cultural conditions of Sri Lanka, this policy aims to guide the work of the Government, its service provider agencies, developmental partners, private service providers and all other stakeholders to implement their obligations towards children deprived of or at risk of losing family environment.
Foster care under this policy is defined as care provided by authorized couples or individuals in their own homes for a fee. Long-term foster care can meet the needs of a specialised group of children for whom family care is provided for many years, even up to adulthood where adoption is not a viable option due to various reasons. Moreover, there are concerns about the cultural and traditional appropriateness of the foster care in Sri Lanka.
Maldives
Regulations
In Maldives, The Ministry of Law and Gender has enacted new regulations governing foster care for children under state care, the first institutional and legal framework of its kind in the Maldives which lays out procedures for placing children under foster care and specifies eligibility criteria for foster parents.
Children can be placed in foster care for six months, during which a case worker from the gender ministry will conduct a field assessment of the child’s treatment by the foster parents. Based on which, the foster period can be extended a further six months, after which the foster parents will be granted permanent custody of the child. Children who do not have the option of living with family or relatives or whose family members have not contacted or visited at shelter will be eligible for foster care provided they have no serious health complications. The government is now interested to facilitate a ‘structured foster care system.’
The applicants for foster care must be a Maldivian married couple between the age of 25 to 40. Applicants must also be listed in the ‘foster parents registry’ and must possess the financial, physical and mental capacity to be a parent.
Applicants cannot be a relative of a child who is already under state care or an individual who has returned the custody of a child placed under foster care.
Foster parents must not have a criminal record or be facing criminal prosecution. They also must be literate and know Islamic prayer rituals, including how to perform the five daily prayers and recite the Holy Quran.
The state will not provide financial assistance for foster parents and they are not allowed to reside outside of Maldives during the interim foster period.
Nepal
The Act Relating to Children, 2075 (2018) Nepal under Section 48 and 49 allows the children in need of special protection such as orphan children, children that have been left found abandoned in hospitals or other public places or separated from parents or left unclaimed, with the identity of their parents unknown, children that are deprived of appropriate care due to serious physical or mental disability or incapacity of their parents, out of the children in conflict with law, those who have been referred for alternative care under the diversion process, children who are staying in prison being dependent on their father or mother who is detained or imprisoned, infants born due to rape or incestuous relationships that are punishable by law and concerning whom application has been made to the child welfare authority, stating inability to maintain them, children who have been separated from their families for their best interests due to abuse, violence or neglect by their respective father, mother or guardian, to be given alternate care such as foster care.
Afghanistan
In Panjshir province in Afghanistan, an informal ‘foster care’ programme functions to place children in need of care in the community and to subsequently monitor their care.
Adoption
Adoption provides a permanent family-based solution. Adoption is a way of providing a new,
permanent family to children who have been irreparably separated from their biological family. Adoption establishes legal guardianship for the child to the adopting family. It is a diverse phenomenon and in some societies there are different forms of adoption that serve different purposes. Some forms of adoption are primarily a way of transferring property; others are a way of consolidating the composition of a new nuclear family (for example, when the spouse of a widowed or divorced person adopts the children of his or her new partner in marriage).
Adoption is generally divided into two broad categories: national (or domestic) and intercountry. Domestic adoption involves the adoption of a child from one country by a couple or individual living in the same country. In intercountry adoption, a child can be adopted by a family living in a country other than his, or her own. In South Asia, legal provision for adoption exists only in India, Sri Lanka and Nepal.
Kafalah provides a permanent alternative in Muslim countries. Adoption is not recognised by Islamic law, because it is considered because it is considered incompatible with the child’s right to identity. Kafalah is a form of alternative care intended to ensure the right of every child to a family environment.
The Declaration on Child Rights and Protection in Islam states that: Islam views the family, based on legal wedlock, as the natural environment for the upbringing of the child and stipulates that every child has the right to live in a family which is built on mutual amity and compassion, no matter whether it is his or her own natural family or a foster family that provides him or her with Kafalah in cases where his or her natural family is lost, or in cases of abandonment by his or her natural family (Principle 6)
Pakistan
In Pakistan, there is no special law on adoption, which is covered under the Guardian and Wards Act, 1890. In the absence of any concrete legislation related to adoption and foster care in Pakistan, there are no clear, standardised policies, ethical practices and follow-up mechanisms related to adoption (Implementing Child Rights in Pakistan, 2015).
Many children without parental care are residing in the private orphanages, institutions and shelters that are registered with the national or provincial governments. However, these are neither provided with any benchmarks for quality standards of care nor monitored for any child rights violations by the Social Welfare and other relevant departments. Boarding schools and religious institutions (madrasas) housing many children (not necessarily without parental care) do not come under any standardised child rights monitoring mechanisms and laws.
Maldives
Formal adoption is not allowed under Maldivian law. Adopted children will not have the legal responsibilities and inheritance rights of biological children.
Nepal
Article 21 of CRC deals with child adoption in Nepal. Further, the Hague Convention on protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 has provision for adoption management. The ‘Terms and Conditions and Process for Granting Approval for Adoption of Nepali child by an Alien, 2065’ and Inter-country Adoption Management Development Committee (Formation) Directive, 2067 include various provisions for adoption. The 6th amendment (1976) of the General Code (1973) has provision for intercountry adoption of children. The government has been implementing the ‘Terms and Conditions and Process for Granting Approval for Adoption of Nepali child by an Alien, 2008’ (Gale and Khatiwada, 2016).
With some conditions as per the General Code (1973), domestic adoption has been in practice. In the past, the registration of domestic adoption is used to take place in the office of land revenue. However, the provision amended lately. As per the Nepal Act Repeal and Amendment Act, 2015, the responsibility now has been shifted to district court.
India
In India, The Ministry of Women & Child Development has notified adoption regulations taking care of the procedures for in country and inter country adoptions. The Central Adoption Regulation Authority is responsible to provide guidance and approvals required by adoptive parents through an online system named Child Adoption Resource Information and Guidance System (CARINGS).
Bhutan
Child Adoption Act of Bhutan 2012 came into force on 25 May 2012. The National Commission for Women and Children has been designated by the Government as the competent authority under this Act. A civil society organisation shall apply to the competent authority for accreditation as an adoption service provider for the purpose of providing adoption services and counselling to the biological parents on relinquishment, adoptive parents and adoptee child, adoption plan. Such a plan may include the exchange of information with respect to the child’s medical background or condition and any other matter relating to adoption of the child as prescribed by the rules made under this Act (Child Care and Protection Act of Bhutan, 2011).
Subject to this Act, an application for adoption of a child may be made by a Bhutanese Citizen who:
Is of good moral character Is financially secure Is not convicted of a crime Is capable of support and care for the child Is at least 30 years of age and the age difference between the adopting parent and the child to be adopted shall be at least 15 years
Subject to this Act, the following Bhutanese child may be adopted:
A child below 18 years of age A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopting parent as one’s own child since childhood A child whose parent, guardian or adopting parent has died Any other child that the Competent Authority has taken cognizance of as being in difficult circumstances
Inter-country Adoption
A foreign national may adopt a Bhutanese child if the person:
Is at least 30 years of age at the time of filing an application for adoption and the age difference between the adopting parent and the child to be adopted shall be at least 15 years; If married, a written consent of the spouse, has the capacity to act and assume all rights and responsibilities of a parent under one’s national laws; Is not convicted of a crime involving moral turpitude or other offences; Is eligible to adopt under one’s national laws; Pays adoption and other fees; Undertakes to provide inheritance to the adopted child; Is in a position to provide proper care and support and to give necessary moral values to the adopted child; and Submit an undertaking that the adopting parents will submit status report of the child to the Bhutanese Embassy/Consulate/Mission/ Designated Representative.
A Bhutanese National may adopt a foreign child only if the person, in addition to Section 30: Has resided in the country from which the child is to be adopted for more than three years and is able to produce evidence that the primary reason for residing in that country was not for adoption; Has not more than one child biological or otherwise. The Ministry of Home and Cultural Affairs shall be the relevant Ministry to issue directives and set limits on the number of inter-country adoption.
In Bhutan, where the government recognises no formal care systems, financial support is provided to extended families caring for orphaned children by the National Women’s Association Orphans Scheme.
Sri Lanka
In Sri Lanka, orphaned or abandoned children can be adopted under the provisions of the Adoption of Children Ordinance. Domestic adoptions are more prevalent than international adoptions and re more preferable in line with the child’s right to her ethnic, culture and linguistic inheritance and each province varies in their processing time of adoption requests. Some provinces have long waiting lists of potential adoptive parents but do not have any children suitable for adoption to make an effective match while other provinces have short waiting lists and less processing time of cases.
Bangladesh
Bangladesh Children Act 2013 Act is an attempt to put in place a modern system for diversion and rehabilitation, including greater use of community-based interventions and the promotion of initiatives to deal with children and juvenile offenders.
Afghanistan
Collapse and fragmentation of infrastructure are a feature of this war-torn country. Community networks were seriously affected by the first decade of war. Extended family networks—the most essential of traditional coping mechanisms—were seriously eroded by the second decade of war.
There are a range of institutions for children in Afghanistan, from orphanages which represent the only possibility for children who are truly orphans, having neither mother nor father, because there are no community-based alternatives. There are also hostels and day care centres, that children of beleaguered families are encouraged to attend, as they provide food, or education, or vocational training. Some of these institutions provide residential care whilst others operate as day centres.
There is a great need for the formulation of Social Policy with the Ministry of Labour and Social Affairs (2006) as a framework within which practical family support and child protection systems and services can operate in Afghanistan.
Conclusions
This study highlights the support or the lack of support provided by these identified policies, laws and schemes supporting foster care and adoption in South Asia to the children in need of care and protection. For the South Asian countries, that has a law or policy or guideline or scheme on Alternate care, an attempt has been made to identify its strength in supporting children on one hand and the gaps that should be addressed on the other hand. It is left to the readers to research further on each of these aspects of alternate care.
A UNICEF publication on South Asia indicated that the number of children without parental care is increasing (UNICEF, 2006, 2008). Not many academic studies are available in this regard. At the same time, models of care exist on the ground in various communities in the region that can be seen as good practices which can be up scaled; but are neither documented well nor widely shared.
There is a huge scope for all South Asian countries to learn from each other, given the cultural similarities in the region. There is a need for collaborative regional thinking of how to prevent and mitigate this heightened risk and vulnerability to violence, abuse and neglect of children in South Asia, so as to ensure the most appropriate Alternate care depending on the needs of every child.
The functions under the alternative care system in the South Asian countries, listed here is a devolved subject, where the State/Provincial Governments and their respective agencies should play more role. The provincial authorities should develop and implement their own programming when it comes to alternative care. Therefore, presented here is only one recommendation, that it is critical for each Country to provide a framework by way of a policy, law, scheme on these two forms of alternate care and guidelines to ensure quality and implementation standards across the country to ensure children’s best interests are protected in family-based alternate care, regardless of the place of residence. Governments should try to update the status of children that are being supported under alternate care on a regular basis.
