Inter Country Adoptions: Delhi HC Issues Directions For Enabling Parties To Obtain Certification From DMs, Foreign Authorities And CARA

The Delhi High Court has issued various steps for enabling adoptive and biological parents to obtain the required certification and no- objection from District Magistrates, foreign authorities and Central Adoption Resource Authority(CARA) in relation with inter country adoptions.

Justice Pratibha M Singh issued the following steps to be considered by the concerned authorities for implementation:

(i) Creation of a database of all SDMs/District Magistrates as also the State Adoption Resource Agencies and District Child Protection Unit who will need to be contacted for the purpose of verification and issuance of certificates;

(ii) Publication of such a database on CARA's website;

(iii) Creation of a help desk at CARA which shall be available both physically and online. The help desk/helpline should have a 24- hour helpline, considering the time differences in different jurisdictions. This would enable adoptive parents to contact CARA as per their convenience. The feasibility of the same shall be reviewed by CARA and shall be submitted before this Court by way of a status report;

(iv) CARA shall also consider permitting advocates/lawyers to appear as authorized representatives to coordinate and facilitate the various formalities that are required to be undertaken;

(v) Mechanism to be created to enable biological or adoptive parents to appear even virtually or be available telephonically, whenever CARA requires to contact them or interact with them;

(vi) All communications with foreign authorities or District Magistrates or any other parties made by CARA shall also be copied by an e-mail to the party concerned as also their authorized representatives so that the procedure being followed and the progress of the application is within their knowledge as well. This would also enable the parties concerned to follow up with the concerned foreign authority or with the District Magistrate for issuance of the certification.

The development came while the Court was dealing with three cases relating to international adoption of Indian children. 

In all three cases, the children, as also their biological parents were in India but the adoptive parents have settled abroad. The adoptions were carried out under the provisions of HAMA. However, certain challenges were faced in movement of the children abroad, including in obtaining passports and visas. The adoptive parents were required to obtain a NOC from CARA.

The Court also appointed Advocate Atul Nagarajan as an Amicus Curiae to assist the Court in the petitions.

The Court also directed CARA to submit a status report within two weeks mentioning the details of the number of applications which are pending for inter-country adoption and the time period for which they have been pending with CARA.

"Steps taken qua each of the applications and their respective status shall also be placed before the Court. In the case of all inter-country adoption applications which are pending, CARA shall inform the parties concerned about the 2021 Regulations so that the said applications can also be processed towards issuance of NOCs," the Court added.

While issuing notice to the Central Government, the Court also directed it to file a status report in respect of the implementation of the 2021 Regulations.

Earlier, the Court had observed that CARA has been extremely callous in its approach towards compliance of a judicial order, requiring the authority to frame guidelines for inter-country adoptions under Hindu Adoptions & Maintenance Act (HAMA).

It further noted that the authority had been unnecessarily harassing the Petitioners, who are adoptive parents and young minor children, by prolonging the process of grant of NOC for adoption.

Background

In order to ensure the welfare of children in inter country adoptions and in view of CARA's experience in such matters, the Court had directed CARA to act as the enabling body for inter-country adoptions under HAMA.

Since there existed no procedure for the same, a shortened procedure that existed in respect of adoptions which were effected prior to the coming into force of the JJ Act, 2015 could be followed for issuance of an NOC in case of inter country adoptions which are already recognized under HAMA, the Court had said.

It was further opined that whenever any inter-country adoption takes place under HAMA and a NOC was required for any purpose, including for issuance of a passport or VISA, upon an application being filed before CARA, a special Committee would be appointed to verify the particulars. Details of the special Committee constituted to deal with HAMA adoptions was also directed to be specified in the report.

In view of the prevalent regime under the Hague Convention, though HAMA adoptions are not governed by the JJ Act, 2015, the Court had held that there was a clear need to create a mechanism to enable inter-country adoptions under HAMA.

Accordingly, the Court had directed CARA to verify the documents submitted by the present petitioners and grant the same within a period of one month. 

Case Title: RAJWINDER KAUR & ANR v. CENTRAL ADOPTION RESOURCE AUTHORITY

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