The adoption of Indian children by foreign nationals is a controversial issue. To some people it is incomprehensible why Indian children should be sent abroad at all. This situation arises because adoption is still a bit of a stigma in India.
Indians are not very open to the idea of adoption. In foreign countries, there is the opposite problem where children are in short supply for adoption. While there are innumerable cases of Indian orphas being given a secure and loving home in another country, newspapers have reported a number of cases where the child has gone to an alien land only to be mistreated. Such children have been used as domestic servants, beggars and even for prostitution. In other cases, so-called adoption agencies have demanded exorbitant amounts from foreign nationals in consideration of giving a child in adoption and often this is under the label of maintenance charges and medical expenses supposed to have been incurred for the child. It is these cases that leave a bad taste in the mouth and make people wary of adoption by foreign nationals. In the matter of L.K. Pandey vs. Union of India, the Supreme Court of India has laid down certain guidelines that have to be followed in the case of foreign adoption in an attempt to safeguard the interests of the children.
A foreign national adopts an Indian child under the provisions of the Guardian and Wards Act, 1890. The Indian court will appoint the foreigner as the child’s guardian. The foreign national will take the child to his own country and adopt him or her as per the laws of his country.
Assessing the fitness of the applicant
A Social or Child Welfare Agency licensed or recognized by the government of the country in which the foreigner resides must sponsor every application of a foreigner for adoption of an Indian child. This agency will appoint a professional social worker to prepare a Home Study Report that will indicate the basis for the sponsorship of the foreigner’s application. The Home Study Report will include the following details: the applicant’s family background, marital status, his education and employment history, his financial status and dwelling conditions, his health profile, information about other offspring, if any, and references. The agency must assess whether the applicant is fit and suitable and has the capacity to parent a child coming from a different racial and cultural milieu and whether the child will be able to fit into the environment of the adoptive family and the community in which it lives.
The foreign national is required to submit supporting documents along with his application. These include: a recent family photograph, his marriage certificate, a declaration of theapplicants’ physical fitness duly certified by a medical doctor, a declaration of the applicants’ financial status with corroborating documents such as an employment certificate, income-tax returns, bank references, and particulars of property owned by them.
Another important annexure to the application is a declaration of willingness. This document will state that the foreigner is willing to be appointed as the child’s guardian. He will also have to furnish an undertaking that he will adopt the child in accordance with the law of the country in which he resides at the earliest, but not later than two years from the date of the child’s arrival in his country. The applicant must also declare that he will maintain the child and provide it with necessary education and upbringing according to their status. The foreign national is also required to sign an undertaking that states that he will send the Indian agency and the court a progress report and a photograph of the child monthly in the first year, quarterly in the second year, and half yearly up to five years. In addition, the foreigner is expected to sign a power of attorney in favour of an officer of the Social or Child Welfare Agency in India so that the officer can process the case.
All the certificates, declarations and documents that are attached to the foreigner’s application are required to be duly notarized by a Notary Public. The notary’s signature, in turn, will have to be duly attested either by an officer of the Ministry of External Affairs or Justice or Social Welfare of the country of which the foreigner is a resident. An officer of the Indian Embassy or High Commission or Consulate in that country can also attest the notary’s signature.
Role of the foreign welfare agency
The Social and Child Welfare Agency sponsoring the application of the foreigner must certify that the foreigner seeking to adopt a child is permitted to as per the laws of his country. The agency must undertake to ensure the adoption of the child by the foreigner according to the law of his country within a period of two years. Once the adoption procedure is complete, it is the duty of the agency to send two certified copies of the adoption order to the Social and Child Welfare Agency in India through which the application for guardianship was processed. One copy of the adoption order will have to be filed in court and the other will remain with the Indian agency for their records. The agency sponsoring the guardianship application must also agree to send progress reports of the child to the Indian agency. These reports will be quarterly in the first year and half yearly in the following years till the adoption has been effected. The foreign agency will also have to undertake that in the event of the disruption of the adopting family before the completion of the adoption procedure, it will take care of the child and find a suitable alternative placement for it with the approval of the Indian agency. In the case of an alternative placement becoming necessary, this development will be reported to the court handling the guardianship proceedings and this information will be passed on by the court and the Indian agency to the Secretary, Ministry of Social Welfare, Government of India, New Delhi.
The application for guardianship must be made before the court of the District Judge within whose jurisdiction the Social and Welfare Child Agency in India that is processing the application of the foreigner is located. The application will be filed by the Indian welfare agency or a person duly authorized by them in this regard. Next the court issues notices to the Indian Council for Child Welfare (ICCW) and the Indian Council for Social Welfare (ICSW) in order that they scrutinize the guardianship application. These organizations are expected to give their considered opinion whether they believe that adoption by the foreign national is in the child’s best interests. The ICCW or ICSW make their representation to the court after carefully studying the application with all the annexures, the Home Study Report, and the Child Study Report and making all necessary inquiries.
The court will first hear all the concerned parties and examine all the documents. The court must be satisfied that the foreigner will be a suitable adoptive parent for the child and will provide the child a secure and loving home. The court must also be convinced that the child will be able to assimilate itself into the family and community of the foreigner. If the court is satisfied on all these counts, it will pass an order appointing the foreigner as the child’s guardian and the foreigner will be allowed to take the child back to his country with a view to eventual adoption. In some cases, the court may even put a condition that the foreign national make provision by way of deposit or bond for the repatriation of the child to India should such a situation arise. The photograph of the child is attached to the order and counter-signed by the judge.
It is a well-documented fact that court procedures are excruciatingly slow in India. Keeping this in mind, the Supreme Court of India, in the matter of L.K. Pandey vs. Union of India, has fixed a maximum period of two months for the disposal by the courts of applications made under the Guardians and Wards Act, 1890. The same judgement has categorically dispensed with the personal presence of the foreign national for the purpose of completing legal formalities.