Glaring Flaws In Provisions Of Foster Care For Adoptable Children

Adoptable children hereby refer to orphan, abandoned and surrendered children who have been declared legally free for adoption (LFA) by the Child Welfare Committee as per section 38 of the JJ Act. Orphan, abandoned and surrendered (OAS) children are defined in Sections 2(42), 2(1) and 2(60) of the JJ Act, respectively.

It has been sufficiently established and well recognized in the law that adoption should be the priority for rehabilitation of adoptable children, especially those below 6 years of age. The relevant provisions under Section 44(9) of the JJ Act, Rule 23(3) and Rule 44(1)(i) of the JJ Model Rules, make it clear that placing a child in adoption is the preferred recourse for OAS children, and if that is not possible, foster care is the next suitable alternative for them.

This article highlights inconsistencies and gaps in the foster care related provisions from the perspective of adoptable children, with regards to the following:

A) Absence of a provision for foster care for adoptable children with special needs who do not get a family through adoption

B) Unclear classification of children in two categories in Schedule XVI-Foster Care Adoption

C) Contradictions in the provisions of the JJ Act, with regards to foster care

D) Unjustifiable inclusion of Kinship Care within Foster Care in the amended rules

E) Illogical provision of giving priority to extended family for foster care of OAS child who is LFA.

A. Absence Of A Provision For Foster Care For Adoptable Children With Special Needs Who Do Not Get A Family Through Adoption

Adoption Regulations 2022 state that the child who is not adopted in the prescribed time limit despite adequate efforts will fall in the category of 'hard to place child' requiring extra efforts for rehabilitation. Regulation 8 provides separate time period for different categories including normal and special needs children, for availability, in order to place them in adoption. The definition of "hard to place child" has been given in 2(13) of AR 2022 (refer to Box – 2: Definition of Hard to place child). A conjoint reading of Regulation 8 and Regulation 2(13) of AR 2022 shows that children with special needs are not included in the 'hard to place' category.

Regulation 53 of AR 2022, (reproduced below) by invoking Rule 44 and adhering to Schedule XVI, emphasizes that foster care is a means of rehabilitation of such hard to place children. 

53 (1) The Authority with the approval of its Steering Committee, may make additional efforts for adoption of hard to place children, through foster care on the Designated Portal.

(2) The children who are not being adopted after being declared legally free for adoption may be eligible for foster care by suitable foster parents under rule 44 of the rules and the Schedule XVI of the Regulations

(3) The hard to place children shall be eligible for foster care and list of such children along with other categories of children as stipulated in rule 44 of the rules shall be accessible to District Child Protection Unit (DCPU) and the State Adoption Resource Agency (SARA) through the Designated Portal.

Here it is pertinent to mention that in the principal JJ Model Rules before the amendment 2022, clause (iv) of sub-rule (1) of Rule 44 specifically addressed the foster care placement of children with special needs who were legally free and had not been placed in adoption for a year after being declared free for adoption. This provision has been omitted in the amended rules (Refer point 30 of Juvenile Justice (Care and Protection of Children) Model Amendment Rules, 2022). There is no equivalent provision in the AR 2022 or the amended JJ Model Rules for foster care placement of adoptable special needs children.

As children with special needs are not included in the definition of "hard to place" nor is there a reference to them in Rule 44 or Schedule XVI of the AR 2022, it is apparent that adoptable children with special needs who are not placed in adoption have been left out of the scope of foster care. This implies that an adoptable child with special needs who has not been placed in a family through adoption, cannot access family based care through foster care either.

This needs to be rectified as the existing set of provisions is discriminatory and a violation of the rights of a child with special needs.

B. Unclear Classification Of Children In Two Categories In Schedule XVI- Foster Care Adoption

A careful reading of the Schedule XVI of AR 2022 also raises doubts about the categories of children listed therein. This schedule appended in view of Regulation 53(2) specifies that children who are not being adopted after being declared legally free for adoption may be eligible for foster care by suitable foster parents. Schedule XVI titled as "Foster Care Adoption", classifies the children as follows:

(1) Children available for family foster care and later adopted by the foster parents―

(a) Category-1: Children legally free for adoption who do not get a family either in in-country adoption or in inter-country adoption as stipulated in rule 44 of the Juvenile Justice Rules and Guidelines on Foster Care notified by the Government from time to time.

(b) Category-2: Hard to place children also called children available for immediate placement as provided in clause (13) of regulation 2 of the Adoption Regulations 2022, who do not get a family either in in country adoption or in inter-country adoption after they are declared legally free for adoption by Child Welfare Committee.

By plain reading, it is not clear what type of children are being included in Category-1 and the reference to Rule 44 does not provide the necessary clarity as Rule 44 of the amended rules provides for foster care only for those adoptable children who are categorised as 'hard to place children', which in turn have been covered in Category-2. In short, Category-1 and Category-2 of the Schedule XVI cover the same set of children. The Schedule XVI needs to be reviewed and amended to remove this redundancy.

C. Contradictions In The Provisions Of The JJ Act With Regards To Foster Care

The JJ Act, JJ Model Rules and AR 2022 have contradictory provisions pertaining to foster care and kinship care which confuse the implementers of these provisions.

The JJ Act has defined foster care and foster family -

Section 2(29) "foster care" means placement of a child, by the 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 2(30) "foster family" means a family found suitable by the District Child Protection Unit to keep children in foster care under section 44;

The above definitions indicate that for foster care the child must be placed in a family other than child's biological family which is selected through a proper process by the District Child Protection Unit. However, Section 44 (1) of the JJ Act additionally suggests that for foster care the child may be placed in a family which doesn't include the child's biological or adoptive parents or in an unrelated family.

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.

There is a slight contradiction between these two propositions. While the definition under the JJ Act completely negates the possibility of the child being placed with relatives or extended family members under foster care, Section 44(1) excludes only parents, both biological or adoptive, implying that relatives or extended family of the child may be recognised as a suitable family for providing foster care.

The contention is that when the very definition of foster care is limited only to an unrelated family as given in Section 2(29), how is it possible to involve extended family members as foster care givers in the related provision of the JJ Act? This discrepancy between Section 2(29) and Section 44(1) needs to be removed for effective functioning of a system of alternative family- based care.

D. Unjustifiable Inclusion Of Kinship Care Within Foster Care In The Amended Rules

Kinship care is defined in the Model Foster Care Guidelines 2016 in 2(xviii) as follows- "Kinship Care" is family-based care within the child's extended or joint family. These guidelines emphasize that in our country the practice of kinship care has been traditionally accepted and hence this kind of arrangement has not been formalized in the guidelines.

The difference between foster care and kinship care becomes clear by overall reading of the relevant provisions in the JJ Act, the Rules and Regulations made thereunder as well as the "Mission Vatsalya scheme 2022" and the "Model Guidelines for Foster Care 2016". Our law and policy also envisage separate supporting funds for caregivers from the biological family and foster families. Specific eligibilities have been prescribed for prospective foster parents (PFPs) and a specific process has been set out for Foster Care.

The JJ Act does not define Kinship Care but recognises restoration of the child to the original family as the prime objective of the system.

Section 39(1) states that "the process of rehabilitation and social integration of children under this Act shall be undertaken, based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care."

Further, Rule 82 of the JJ Model Rules and Regulation 30(1)(K) of AR 2022 reaffirm this position on restoration.

But section 44(1) of the JJ Act and the Juvenile Justice (Care and Protection of Children) Model Amendment Rules 2022, by insertion of Rule 23(1)(A), seem to be blurring the lines between foster care and kinship care. For the purpose of foster care, Rule 23(1A) gives priority to extended families followed by other types of families. This order of preference introduced pursuant to the Juvenile Justice (Care and Protection of Children) Model Amendment Rules 2022 is also seen in Schedule XVI of AR 2022.

There seems to be an attempt to bring kinship care under the aegis of foster care. But this attempt has no justification. Those children whose parents/guardians have been declared temporarily unfit/incapacitated due to unfortunate circumstances can be kept in the care of relatives or extended family, if it is in their best interest, as restoration to the biological family is legally allowed under the JJ Act. If that is not possible, then the child can be placed in foster care. There is no need for merging these two.

E. Illogical Provision Of Giving Priority To Extended Family For Foster Care Of OAS Child Who Is LFA

When we consider the category of adoptable children, treating kinship care as a part of foster care, as is being suggested in Schedule XVI 3(b) is inconsistent with the definition of an OAS child. Schedule XVI 3(b) states: "The DCPU shall complete matching of the child with PFPs & while selecting foster care givers, priority shall be given to extended family member relations followed by neighborhood care & group foster care."

The fact that the child is in the OAS category and was declared legally free for adoption implies that no such relatives were available or willing or capable of taking care of the child. Therefore, the question of giving priority to placement of such a child with "extended family relations" is in dissonance with the very definition of OAS. Hence 3(b) of Schedule XVI should be amended.

The gaps and inconsistencies identified in the above analysis will make implementation of the foster care provisions difficult. These provisions should be appropriately amended or necessary clarification be issued immediately by the concerned authorities, if the State's objectives to create a robust alternative family based care system for children in need of care and protection are to be realised.

The authors are Legal Consultants and Trainers . Views are personal.