Twelve-year-old Ananya (named changed) has lived at an orphanage in Kerala’s Kannur district ever since the district Child Welfare Committee (CWC) brought her there after her stepfather was found to be mistreating her. However, in the two years since she arrived at the orphanage, neither her mother nor other relatives have enquired about her. Ananya, too, doesn’t want to meet her mother. There are many other children from similar backgrounds who prefer not to go back to their families.
However, according to a recent letter from the National Commission for Protection of Child Rights (NCPCR), children who have families and are residing at child care institutions (CCIs) should be restored to their families or be considered for adoption or foster care. According to the Commission, keeping such children at these institutions for long is depriving them of their natural homes and parents. After a social audit of the CCIs, the Commission says it has found that the five southern states have the maximum number of CCIs and children in need of care and protection (CNCP) placed in these homes “which paints an unsettling picture indicating a pitiable condition of children in these CCIs”.
Although NCPCR said the exercise will be implemented in a phased manner, many orphanages as well as child welfare experts have opposed the directive, stating that an immediate and imprudent action like this would have an adverse effect on the children.
In a letter dated September 23, the NCPCR said it is initiating the exercise of monitoring the repatriation and restoration of the CNCP placed in CCIs, except children with Specialised Adoption Agency (SAA) and Observation Homes.
The first phase of the repatriation and restoring process will be conducted in eight states — Kerala, Karnataka, Tamil Nadu, Andhra Pradesh, Telangana, Maharashtra, Mizoram and Meghalaya. These states, according to the Commission, have a higher number of CCIs than other states.
The letter directs the district collectors from the eight states to send the children who have parents back to their families while others should be sent to families under adoption or foster care, and this should ideally be done within 100 days.
The letter also states that poverty cannot be a reason for the children to stay at CCIs. It adds that authorities should make sure that the family is linked to various social welfare schemes and entitlements that have been introduced by the state government to tackle poverty.
Based on a Social Audit Reports analysis, the Commission observed that “the number of children in need of care and protection (CNCP) residing in these CCIs in excess poses a potential risk to the rights and protection of these children. Such a vast number of children being deprived of their natural homes and parents is a matter of grave concern.”
The Commission said it was implementing this per its powers conferred under section 13 and 14 of the Commission for Protection of Child Rights (CPCR) Act, 2005 and as per its mandate under section 109 of the Juvenile Justice (JJ) Act, 2015 read with Rule 91 of the Juvenile Justice Rules, 2016.
"The commission will monitor this entire exercise until its thorough implementation and till every child in need of care and protection placed in these CCIs is repatriated and restored back to his or her family or placed for adoption, foster care, etc,” states the letter from Raman K Gaur, a senior consultant at NCPCR’s legal division.
Varghese Thudiyan, director of Emmanuel Orphanage in Kerala’s Angamaly, explained why the NCPCR’s decision is impractical. “There are 70 children in the orphanage. There are children who come from unhealthy family environment, those who face abuse from step-parents, as well as children abandoned by a single parent or abused by relatives. So, how can we send these children back to the same vulnerable situations? We’re functioning for the last 20 years and thousands of students have stayed here. All of them received better education,” he said.
A statement signed by 724 civil society workers has also condemned this move by the NCPCR. The signatories include those from child rights and humanitarian organisations from All India Network of Individuals and NGOs working with National and State Human Rights Institutions (AiNNI), Enfold Proactive Health Trust, HAQ: Centre for Child Rights, People’s Watch, Against Child Trafficking, Dalit Women Collective, to name a few, as well as individuals.
“The NCPCR’s “one size fits all” approach and its assumption that restoration is the only option belies the experiences of children who have been subjected to physical and sexual violence, neglect and exploitation within the family. There is enough evidence to prove that children are not safe within their own families,” the statement argues. It adds that NCPCR’s orders do not take into account a child’s views, whether he/she may actually want to return to the family.
Rajendra Prasad, the Chief Programme Coordinator of MV Foundation, an NGO in Telangana’s Secunderabad working towards the welfare of children rescued from child labour, told TNM that there are many children in the institution who cannot go back to their homes due to various reasons. “The letter only talks about sending children with families back to their homes but does not speak about how to restore children who come from unhealthy family environment,” he said, pointing out the unviability of the directive.
Four NGOs providing shelter and other facilities for children — Catalyst for Social Action and Prerana based in Maharashtra, Udayan Care based in New Delhi, and MV Foundation — have also sent a letter to the NCPCR asking it to withdraw the directive.
“Any action taken in haste, without following the due process as specified in the Juvenile Justice Act and without ensuring proper monitoring and family support systems are in place, could have a severe adverse, immediate and long-term impact on the rights of the children,” the collective letter reads.
They said that it is critical to study each child, to understand if the vulnerability the child went through has been thoroughly addressed and effectively resolved. “Restoration of the child simply on the basis of the presence of family members cannot be an adequate reason to restore the child back with family, as this will only lead to what is known as a “revolving door” syndrome, where children may again be abandoned, surrendered, abused, pushed to child labour, etc (sic),” the letter said, reminding that sending the children back to their family/relatives will not be the “best interest of the child’.
“Technically, these children do have parents. In many cases, children are brought to these homes after they were abused by their parents or a close relative. One of the parents might be struggling with substance abuse or have mental health issues. So, if they’re sent back, they’re going back to the same vulnerable environment, especially if the very situation that made them eligible for external support has not changed in any way,” explained Anwar Karakkadan, Childline Coordinator in Kerala’s Malappuram district, who has been involved in rescuing children.
“If the psycho-social atmosphere at home remains the same, the child will go through a similar situation and will have to be rescued once again. The cycle, thus, will repeat if the new directive is implemented,” he said, adding that if there is an ongoing legal case, sending the child back to the family could create a threat to the child.
The NCPCR, with this direction, has also ignored the larger issue of systemic failures, the statement by 724 civil society workers points out. “Strengthening the system has been a continuous demand and call for adequate resources. The child protection sector received only 0.06 per cent of the Union Budget in the year 2020-21, a reduction of 0.01 percentage points from the previous year. […] The COVID-19 pandemic has added further pressure and practical difficulties in carrying out the required tasks. The problem is more systemic and not just about the functioning of CCIs. The NCPCR has failed to see that children end up bearing the brunt of systemic failures.”
Apart from pointing out that the NCPCR has undermined the CWCs and JJ Act with this move, the statement also notes that the body has ignored the need for families’ preparedness for receiving the children as well as alternative care measures. The former, the letter states, could make children vulnerable to greater distress if the families are unprepared, and this once again emphasises the need for individual care as well as post-restoration follow up as opposed to a mass restoration drive.
Speaking about adoption and foster care, the letter by the four NGOs pointed out that not every child gets that privilege. “It is also clear from the data that most children who are preferred for adoption belong to the age group of six years and below. The chances of adoption of children above six years reduce drastically (sic),” the letter said.
Though organisations agree that poverty alone cannot be a reason to stay in these institutions, they say finding a solution to poverty will not be possible in a short span of time, and would only adversely affect the children sent back home.
“In Kerala, poverty is not always a reason for the child to be sent to such shelters. So, factors other than poverty really matter,” reminded Anwar.
“We would urge the Commission to withdraw its letter and defer any large scale and hasty restoration drive in the current situation considering the risk and harm it may cause to the children,” the letter added.