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Report No. 153

The Role of the Central Authority and the recognised institutions

5.11. Every effort must be made by the recognised child welfare agency to find placement for the child in adoption in an Indian family. It is only if no Indian family comes forward to take a child in adoption within a maximum period of two months that the child may be regarded as available for inter-country adoption.

However, if the child is handicapped or is in a bad state of health needing urgent medical attention, the recognised social welfare agency need not wait for a period of two months and it can and must take immediate steps for the purpose of giving such child in inter-country adoption. All private adoptions conducted by unauthorised individuals or agencies should be stopped.1 Any application for taking a child in adorion should be processed only through a child welfare agency recognised by the Liovernment of India in order to ensure2:

(a) Elimination of the possibility of profiteering and trafficking in children.

(b) Proper and satisfactory home study report on which court can rely and decide whether a foreigner would be suitable as a parent for the child and would be able to handle trans-racial, trans-cultural and transnational problems likely to arise from such adoption.

(c) Authority or Agency in the country of the foreigner who could be made responsible for supervising the progress of the child and ensuring that the child is adopted at the earliest in accordance with the law grow up in the atmosphere of warmth and affection with moral and material security assured to it.

On receiving an application from a foreigner for adoption of an Indian child, the recognised agency must send the photograph and child study report of a suitable child who fit into the environment and community of the prospective adopter for the purpose of obtaining approval to the adoption of such child from the foreigner wishing to adopt Indian child. The practice of accepting a general approval of the foreigner to adopt any child should not be allowed. A child study report3 containing legal and social data in regard to the child is prepared by the recognised social welfare agency.

1. L.K. Pandey v. Union of India, (1984) 2 SCR 837.

2. Supra, p. 832.

3. Appendix E.

5.12. The procedural safeguards as laid down by the Court may be briefly summarised as under:

(1) An adoption application proceedings should be completed1 by the Court expeditiously and as far as possible within a period of two months from the date of filing of the application for the guardianship of the child.

(2) The proceedings on the application of guardianship should be held in camera2 and they should be regarded as confidential and as soon as an order is made on the application, the entire proceedings including the paper and documents should be sealed.

(3) When an order appointing guardian of a child is made by the Court, the immediate intimation3 of the same shall be given to the Ministry of Welfare, Government of India and to the Ministry of Social Welfare of the Government of the State in which the Court is situated.

(4) It is desirable4 that a child is given in inter-country adoption as far as possible before it completes the age of 5 years. It does not mean that children above the age of three years should not be given in inter-country adoption. Even children above the age of 7 years may be given in inter-country adoption but their wishes may be ascertained if they are in a position to indicate any preference.

(5) The child not having any permanent place of residence would be ordinarily resident in the place where it is in the care and custody of social welfare agency or individual. In such event, the Court within which jurisdiction the child is ordinarily residing will exercise its jurisdiction on an application of guardianship made by the recognised social welfare agency for tie foreigner wishing to adopt the child.6

(6) In order to eliminate trading in children in the name of inter-country adoptions, the child welfare agency may legitimately receive from prospective adoptive parents maintenance expenses,7 from the date of selection of the child by the foreigner until the date the child leaves for getting to its new home as also medical expenses including hospitalisation charges, if any, actually incurred by such social welfare agency for the child.

(7) A foreigner is not prevented from making voluntary donations to any social or child welfare agency but no such donation from him shall be received until after the child has reached his country.

1. Supra, pp. 845-847.

2. Supra, p. 847.

3. L.K. Pandey v. Union of India, (1984) 2 SCR 847.

4. Supra, p. 845.

5. Miscellaneous Petition No. 178 of 1982 quoted in L.K. Pandey, (1984) 2 SCR 795 (843).

6. Supra, p. 841.

7. Supra, p. 842.

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