advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, February 15, 2013

Central Adoption Resource Authority (CARA) - “Child Tina was an older female child (aged 7 years when the NOC was issued) and thus relaxation was permissible as per the guidelines. • The Prospective parent was 54 years of age, which is within the age up to which adoption by foreign prospective parent is permissible after relaxation i.e. 55 years. • The Prospective Adoptive Parent is otherwise also suitable as she is financially stable and there are three reference letters supporting adoption of the child by her. The Home study report of the prospective parent (Ms. Stephanie Becker) shows the child as kind, welcoming, caring and responsible individual with physical, mental emotional and financial capability to parent a female child up to age of seven years from India. • Procedures such as declaration of the child as legally free for adoption by CWC Child Welfare Committee (CWC); ensuring efforts for domestic adoption and clearance of Adoption Coordinating Agency; and taking consent of older child had been followed. • Follow-up of the welfare of the child was to be properly done through Journeys of the Hearts, USA, the authorized agency which had also given an undertaking to ensure the adoption of child Tina according to the laws in USA within a period not exceeding two years from the date of arrival of the child in her new home. The agency has also committed to send follow-up reports as required. • The Biological brother of the prospective parent, Mr. Philip Becker Jr. and his wife Ms. Linda Becker have given anPage 16 16 undertaking on behalf of the single female applicant to act as legal guardian of the child in case of any unforeseen event to the adoptive parent. This is another important safeguard. • Article 5 from the Office of Children’s Issues, US Department of State allowing child Tina to enter and reside permanently in the United States and declaring suitability of the prospective adoptive parent, was available.” 11. In view of the facts as stated above which would go to show that each and every norm of the adoption process spelt out under the Guidelines of 2006, as well as the Guidelines of 2011, has been adhered to, we find that the apprehension raised by the intervener, though may have been founded on good reasons, have proved themselves wholly unsubstantiated in the present case. If the foreign adoptive parent is otherwise suitable and willing, and consent of the child had also been taken (as in the present case) and the expert bodies engaged in the field are of the view that in the present case the adoption process would end in a successful blending of the child in the family of the appellant in USA, we do not see as to how the appellant could be understood to be disqualified or disentitled to the relief(s) sought by her in the proceedings in question. It is our considered view that having regard to the totality of the facts of the case the proposed adoption would be beneficial to the child apart fromPage 17 17 being consistent with the legal entitlement of the foreign adoptive parent. If the above is the net result of the discussions that have preceded, the Court must lean in favour of the proposed adoption. We, therefore, set aside the orders dated 17.09.2010 in Guardianship Case No. 2 of 2010 passed by the learned Trial Court and the order dated 09.07.2012 in FAO No. 425 of 2010 passed by the High Court of Delhi and appoint the appellant as the legal guardian of the minor female child Tina and grant permission to the appellant to take the child to USA. In view of the provisions of Section 41(3) of the JJ Act and to avoid any further delay in the matter which would be caused if we were to remand the aforesaid aspect of the case to the learned Trial Court, only on the ground that the same did not receive consideration of the learned Court, we deem it appropriate to pass necessary orders giving the child Tina in adoption to the appellant. The CARA will now issue the necessary conformity certificate as contemplated under clause 34(4) of the Guidelines of 2011. The appeal consequently shall stand allowed in the above terms.


Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.    1053       of 2013
(Arising out of SLP (Civil) No. 29505 of 2012)
Stephanie Joan Becker ... Appellant(s)
Versus
State and Ors. ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
Leave granted.
2. The  rejection  of  the  applications  filed  by  the  appellant
under Sections 7 and 26 of the Guardians and Wards Act, 1890
(hereinafter for short the “Guardians Act”) by the learned Trial
Court vide its order dated 17.09.2010 in Guardianship Case No. 2
of 2010 and the affirmation of the said order made by the High
Court of Delhi by its order dated 09.07.2012 in FAO No. 425 of
2010 has been put to challenge in the present appeal.
By the
application  filed  under  Section  7  of  the  Guardians  Act,  the
appellant had sought for an order of the Court appointing her asPage 2
2
the guardian of one female orphan child Tina aged about 10
years 
whereas by the second application filed under Section 26
of the Guardians Act the appellant had sought permission of the
Court to take the child Tina out of the country for the purpose of
adoption.
3. The  rejection  of  the  aforesaid  two  applications  by  the
learned Trial Court as well as by the High Court is on a sole and
solitary  ground,  namely,  that  the  appellant,  being  a  single
prospective adoptive parent, was aged about 53 years at the
relevant point of time whereas for a single adoptive parent the
maximum permissible age as prescribed by the Government of
India Guidelines in force was 45.  
Though a no objection, which
contained an implicit relaxation of the rigour of the Guidelines
with regard to age, has been granted by the Central Adoption
Resource Authority (CARA), the High Court did not consider it
appropriate to take the said no objection/relaxation into account
inasmuch as the reasons for the relaxation granted were not
evident on the face of the document i.e. no objection certificate
in question.
4. To understand and appreciate the contentious issues that
have arisen in the present appeal, particularly, the issues raisedPage 3
3
by  a  non-governmental  organization  that  had  sought
impleadment  in  the  present  proceedings  (subsequently
impleaded as respondent No. 4) it will be necessary to take note
of the principles of law governing inter-country adoption, a short
resume of which is being made hereinbelow.  But before doing
that it would be worthwhile to put on record that the objections
raised by the Respondent No.4, pertain to the legality of the
practice of inter country adoption itself, besides the bonafides of
the  appellant  in  seeking  to  adopt  the  child  involved  in  the
present  proceeding and the  overzealous role of the different
bodies  involved  in  the  process  in  question  resulting  in  side
stepping of the laid down norms.
5. The law with regard to inter-country adoption, indeed, was
in a state of flux until the principles governing giving of Indian
children in adoption to foreign parents and the procedure that
should  be  followed  in  this  regard  to  ensure  absence  of  any
abuse, maltreatment or trafficking of children came to be laid
down by this Court in  Lakshmi  Kant  Pandey  v.  Union  of
India
1
.   The aforesaid proceedings were instituted by this Court
on the basis of a letter addressed by one Lakshmi Kant Pandey, a
1
 (1984) 2 SCC 244Page 4
4
practicing  advocate  of  this  Court  with  regard  to  alleged
malpractices indulged in by social and voluntary organizations
engaged in the work of offering Indian children in adoption to
foreign parents.  After an elaborate consideration of the various
dimensions of the questions that arose/were raised before the
Court and the information laid before it by the Indian Council of
Social Welfare, Indian Council of Child Welfare, SOS Children’s
Villages  of  India  (respondent  No.  2  herein)  and  also  certain
voluntary organizations working in the foreign jurisdictions, this
Court, after holding in favour of inter country adoption, offered
elaborate  suggestions  to  ensure  that  the  process  of  such
adoption  is  governed  by  strict  norms,  and  a  well  laid  down
procedure  to  eliminate  the  possibility  of abuse  or  misuse  in
offering  Indian  children  for  adoption  by foreign  parents  is in
place.  This Court in Lakshmi Kant Pandey (supra) also laid
down the approach that is required to be adopted by the courts
while dealing with applications under the Guardians and Wards
Act  seeking  orders  for  appointment  of  foreign  prospective
parents as guardians of Indian children for the eventual purpose
of adoption.   Such directions, it may be noticed, was not only
confined to hearing various organizations like the Indian CouncilPage 5
5
for Child Welfare and Indian Council of Social Welfare by issuance
of appropriate notices but also the time period within which the
proceedings filed before the Court are to stand decided.  Above
all, it will be necessary for us to notice that in  Lakshmi Kant
Pandey (supra) this Court had observed that :
“Of  course,  it  would  be  desirable  if  a  Central
Adoption  Resource  Agency  is  set  up  by  the
Government of India with regional branches at a
few  centres  which  are  active  in  inter-country
adoptions.  Such  Central  Adoption  Resource
Agency can act as a clearing house of information
in regard to children available for inter-country
adoption  and  all  applications  by  foreigners  for
taking  Indian  children  in  adoption can  then  be
forwarded by the social or child welfare agency in
the  foreign  country  to  such  Central  Adoption
Resource Agency and the latter can in its turn
forward  them  to  one  or  the  other  of  the
recognized social or child welfare agencies in the
country.”
6. Pursuant  to  the  decision  of  this  Court  in  Lakshmi  Kant
Pandey  (supra) surely,  though  very  slowly,  the  principles
governing  adoption  including  the  establishment  of  a  central
body,  i.e.,  Central  Adoption  Resource  Authority  (CARA)  took
shape and found eventual manifestation in a set of elaborate
guidelines  laid  down  by  the  Government  of  India  commonly
referred  to  as  the  Guidelines  For  Adoption  from  India  2006Page 6
6
(hereinafter referred to as “the Guidelines of 2006”).  A reading
of the aforesaid Guidelines indicates that elaborate provisions
had been made to regulate the pre-adoption procedure which
culminates in a declaration by the Child Welfare Committee that
the child is free for adoption.   Once the child (abandoned or
surrendered) is so available for adoption the Guidelines of 2006
envisage distinct and separate steps in the process of adoption
which may be usefully noticed below :
(1) Enlisted  Foreign  Adoption  Agency
(EFAA)
 The applicants will have to contact or register
with  an  Enlisted  Foreign  Adoption  Agency
(EFAA)/Central  Authority/Govt.  Deptt.  in
their country, in which they are resident,
which will prepare the a  Home  Study
Report  (HSR)  etc.  The  validity  of  “Home
Study Report” will be for a period of two
years. HSR report prepared before two years
will be updated at referral.
 The applicants should obtain the permission
of the competent authority for adopting a
child  from  India.  Where  such  Central
Authorities or Government departments are
not available, then the applications may be
sent by the enlisted agency with requisite
documents  including  documentary  proof
that the applicant is permitted to adopt from
India
 The  adoption  application  dossier  should
contain  all  documents  prescribed
in Annexure-2. All  documents  are  to  bePage 7
7
notarized.  The  signature  of  the  notary  is
either  to  be  attested  by  the  Indian
Embassy/High  Commission  or  the
appropriate  Govt.  Department  of  the
receiving country. If the documents are in
any language other than English, then the
originals must be accompanied by attested
translations
 A copy of the application of the prospective
adoptive parents along with the copies of
the HSR and other documents will have to
be forwarded to RIPA by the Enlisted Foreign
Adoption Agency (EFAA) or Central Authority
of that country.
(2)   Role  of  Recognized  Indian  Placement
Agency (RIPA)
 On  receipt  of  the  documents,  the  Indian
Agency will make efforts to match a child
who is legally free for inter-country adoption
with the applicant.
 In case no suitable match is possible within 3
months, the RIPA will inform the EFAA and
CARA with the reasons therefore.
(3) Child  being  declared  free  for  intercountry adoption - Clearance by ACA
 Before a RIPA proposes to place a child in the
Inter country adoption, it must apply to the
ACA for assistance for Indian placement. 
 The child should be legally free for adoption.
ACA will find a suitable Indian prospective
adoptive parent within 30 days, failing which
it will issue clearance certificate for intercountry adoption.Page 8
8
 ACA  will  issue  clearance  for  inter-country
adoption  within  10  days  in  case  of  older
children above 6 years, siblings or twins and
Special Needs Children as per the additional
guidelines issued in this regard.
 In case the ACA cannot find suitable Indian
parent/parents  within  30  days,  it  will  be
incumbent  upon  the  ACA  to  issue  a
Clearance Certificate on the 31
st
day.
 If ACA Clearance is not given on 31
st
day, the
clearance  of  ACA  will  be  assumed  unless
ACA  has  sought  clarification  within  the
stipulation period of 30 days.
 NRI parent(s) (at least one parent) HOLDING
Indian Passport will be exempted from ACA
Clearance, but they have to follow all other
procedures as per the Guidelines.
(4) Matching  of  the Child  Study  Report  with
Home Study Report of FPAP by RIPA
 After  a  successful  matching,  the  RIPA  will
forward  the  complete  dossier  as  per
Annexure  3  to  CARA  for  issuance  of  “No
Objection Certificate”.
(5) Issue  of  No  Objection  Certificate  (NOC)
by CARA
 RIPA shall make application for CARA NOC in
case of foreign/PIO parents only after ACA
Clearance Certificate is obtained.
 CARA will issue the ‘NOC’ within 15 days from
the date of receipt of the adoption dossier if
complete in all respect.
 If  any  query  or  clarification  is  sought  by
CARA, it will be replied to by the RIPA within
10 days.Page 9
9
 No  Indian  Placement  Agency  can  file  an
application in the competent court for intercountry  adoption  without  a  “No  Objection
Certificate” from CARA.
(6) Filing of Petition in the Court
 On receipt of the NOC from CARA, the RIPA
shall file a petition for adoption/guardianship
in the competent court within 15 days.
 The  competent  court  may  issue  an
appropriate order for the placement of the
child with FPAP.
 As per the Hon’ble Supreme Court directions,
the concerned Court may dispose the case
within 2 months.
(7) Passport and Visa
 RIPA has to apply in the Regional Passport
Office  for  obtaining  an  Indian  Passport  in
favour of the child.
 The  concerned  Regional  Passport  Officer
may issue the Passport within 10 days.
 Thereafter  the  VISA  entry  permit  may  be
issued  by  the  Consulate/Embassy/High
Commission  of  the  concerned  country  for
the child.
(8) Child travels to adoptive country
 The  adoptive  parent/parents  will  have  to
come to India and accompany the child back
to their country.
7. Even after the child leaves the country the Guidelines of
2006  contemplate  a  process of continuous monitoring of the
welfare of the child through the foreign placement agency untilPage 10
10
the process of adoption in the country to which the child has
been  taken  is  completed,  which  process  the  Guidelines
contemplate completion within two years.  The monitoring of the
welfare of the child after the process of adoption is complete and
the steps that are to be taken in cases where the adoption does
not materialize  is also contemplated  under  the  Guidelines of
2006.   As the said aspects are not relevant for the purposes of
the present adjudication the details in this regard are not being
noticed.  What, however, would require emphasis, at this stage,
is  that  by  and  large  the  Guidelines  of  2006  framed  by  the
Ministry of Women and Child Development are in implementation
of  the  decision  of  this  Court  in  the  case  of  Lakshmi  Kant
Pandey (supra).
8. Two  significant  developments  in  the  law  governing
adoptions may now be taken note of.  Section 41 of the Juvenile
Justice (Care and Protection of Children) Act, 2000 (hereinafter
for  short  the  “JJ  Act”)  was  amended  by  Act  33  of  2006  by
substituting sub-Sections 2, 3 and 4 by the present provisions
contained  in  the  aforesaid  sub-Sections  of  Section  41.   The
aforesaid amendment which was made effective from 22.8.2006
is significant inasmuch as under sub-Section 3 power has beenPage 11
11
conferred  in  the  Court  to  give  a  child  in  adoption  upon
satisfaction that the various guidelines issued from time to time,
either by the State Government or the CARA and notified by the
Central Government have been followed in the given case.  The
second significant development in this regard is the enactment
of the Juvenile Justice (Care and Protection of Children) Rules
2007 by repeal of the 2001 Rules in force.  Rule 33 (2) makes it
clear that “for all matters relating to adoption, the guidelines
issued by the Central Adoption Resource Agency and notified by
the Central Government under sub-section (3) of Section 41 of
the Act, shall apply.”  Rule 33 (3) in the various sub-clauses (a)
to  (g)  lays  down  an  elaborate  procedure  for  certifying  an
abandoned child to be free for adoption. Similarly, sub-rule (4) of
Rule 33 deals with the procedure to be adopted for declaring a
surrendered child to be legally free for adoption.  Once such a
declaration is made, the various steps in the process of adoption
spelt out by the Guidelines of 2006, details of which have been
extracted hereinabove, would apply finally leading to departure
of the child from the country to his/her new home for completion
of the process of adoption in accordance with the laws of the
country to which the child had been taken.  In this regard thePage 12
12
order of the courts in the country under Section 41(3) of the JJ
Act would be a step in facilitating the adoption of the child in the
foreign country.
9. It will also be necessary at this stage to take note of the fact
that the Guidelines of 2006 stand repealed by a fresh set of
Guidelines  published  by  Notification  dated  24.6.2011  of  the
Ministry of Women and Child Development, Government of India
under Section 41(3) of the JJ Act.  The time gap between the
coming into effect of the provisions of Section 41(3) of the JJ Act
i.e. 22.08.2006 and the publication of the 2011 Guidelines by the
Notification dated 24.6.2011 is on account of what appears to be
various  procedural  steps  that  were  undertaken  including
consultation  with  various  bodies  and  the  different  State
Governments.  A reading of the  Guidelines of 2011 squarely
indicate  that  the  procedural  norms  spelt  out  by  the  2006
Guidelines  have  been  more  elaborately  reiterated  and  the
requirements of the pre-adoption process under Rules 33(3) and
(4) have been incorporated in the said Guidelines of 2011.   As a
matter of fact, by virtue of the provisions of Rule 33(2) it is the
Guidelines of 2011 notified under  Section 41(3)  of the JJ Act
which will now govern  all matters pertaining to inter-countryPage 13
13
adoptions  virtually conferring on the said Guidelines a statutory
flavour and sanction.  Though the above may not have been the
position on the date of the order of the learned trial court i.e.
17.9.2010, the full vigour of Section 41(3) of the JJ Act  read with
Rule 33 (2) of the Rules and the Guidelines of 2011 were in
operation on the date of the High Court order i.e. 9.7.2012. The
Notification  dated  24.06.2011  promulgating  the  Guidelines  of
2011 would apply to all situations except such things done or
actions completed before the date of the Notification in question,
i.e., 24.06.2011.  The said significant fact apparently escaped the
notice of the High Court.   Hence the claim of the appellant along
with  consequential  relief,  if  any,  will  have  to  be  necessarily
considered on the basis of the law as in force today, namely, the
provisions of the JJ Act and the Rules framed thereunder and the
Guidelines of 2011 notified on 24.6.2011.  In other words, if the
appellant is found to be so entitled, apart from declaring her to
be natural guardian and grant of permission to take the child
away  from  India  a  further  order  permitting  the  proposed
adoption would also be called for.  Whether the order relating to
adoption of the child should be passed by this Court as the same
was not dealt with in the erstwhile jurisdictions (trial court  andPage 14
14
the High Court)  is an incidental aspect of the  matter which
would require consideration.
10. The facts of the present case, as evident from the pleadings
of the parties and the documents brought on record, would go to
show that the appellant’s case for adoption has been sponsored
by an agency (Journeys of the Heart, USA) rendering service in
USA which is recognized by CARA.  The Home Study Report of
the family of the appellant indicates that the appellant apart
from being gainfully employed and financially solvent is a person
of amicable disposition who has developed affinity for Indian
culture and Indian children.  The appellant, though unmarried,
has the support of her brother and other family members who
have  promised  to  look  after  the  child  in  the  event  such  a
situation becomes necessary for any reason whatsoever.  The
Child  Study  Report  alongwith  medical  examination  Report
prepared by the recognized agency in India has been read and
considered by the appellant and it is only thereafter that she had
indicated  her willingness to adopt the child in question.  Before
permitting  the  present  process  of  inter  country  adoption  to
commence, all possibilities of adoption of the child by an Indian
parent were explored which however did not prove successful.Page 15
15
The matter was considered by the No Objection Committee of
the CARA and as stated in the affidavit of the said agency filed
before this Court, the No Objection Certificate dated 03.02.2010
has  been  issued  keeping  in  mind  the  various  circumstances
peculiar to the present case, details of which are as hereunder :
“Child Tina was an older female child (aged 7 years when the
NOC was issued) and thus relaxation was permissible as per the
guidelines.
• The Prospective parent was 54 years of age, which is within the
age  up  to  which  adoption  by  foreign prospective  parent  is
permissible after relaxation i.e. 55 years.
• The Prospective Adoptive Parent is otherwise also suitable as
she is financially stable and there are three reference letters
supporting adoption of the child by her. The Home study report
of the prospective parent (Ms.  Stephanie Becker) shows the
child as kind, welcoming, caring and responsible individual with
physical, mental emotional and financial capability to parent a
female child up to age of seven years from India. 
• Procedures such as declaration of the child as legally free for
adoption by CWC Child Welfare Committee (CWC); ensuring
efforts  for  domestic  adoption  and  clearance  of  Adoption
Coordinating Agency; and taking consent of older child had
been followed.
• Follow-up of the welfare of the child was to be properly done
through Journeys of the Hearts, USA, the authorized agency
which had also given an undertaking to ensure the adoption of
child Tina according to the laws in USA within a period not
exceeding two years from the date of arrival of the child in her
new home. The agency has also committed to send follow-up
reports as required. 
• The Biological brother of the prospective parent,  Mr.  Philip
Becker  Jr.  and  his  wife  Ms.  Linda  Becker  have  given  anPage 16
16
undertaking on behalf of the single female applicant to act as
legal guardian of the child in case of any unforeseen event to the
adoptive parent. This is another important safeguard.
• Article 5 from the Office of Children’s Issues, US Department
of State allowing child Tina to enter and reside permanently in
the United States and declaring suitability of the prospective
adoptive parent, was available.”
11. In view of the facts as stated above which would go to show
that each and every norm of the adoption process spelt out
under the Guidelines of 2006, as well as the Guidelines of 2011,
has been adhered to, we find that the apprehension raised by
the intervener, though may have been founded on good reasons,
have proved themselves wholly unsubstantiated in the present
case.  If the foreign adoptive parent is otherwise suitable and
willing, and consent of the child had also been taken (as in the
present case) and the expert bodies engaged in the field are of
the view that in the present case the adoption process would end
in a successful blending of the child in the family of the appellant
in  USA,  we  do  not  see  as  to  how  the  appellant  could  be
understood to be disqualified or disentitled to the relief(s) sought
by her in the proceedings in question.  It is our considered view
that having regard to the totality of the facts of the case the
proposed adoption would be beneficial to the child apart fromPage 17
17
being  consistent  with  the  legal  entitlement  of  the  foreign
adoptive parent.  If the above is the net result of the discussions
that  have  preceded,  the  Court  must  lean  in  favour  of  the
proposed adoption.  We, therefore, set aside the orders dated
17.09.2010 in Guardianship Case No. 2 of 2010 passed by the
learned Trial Court and the order dated 09.07.2012 in FAO No.
425 of 2010 passed by the High Court of Delhi and appoint the
appellant as the legal guardian of the minor female child Tina
and grant permission to the appellant to take the child to USA.
In view of the provisions of Section 41(3) of the JJ Act and to
avoid any further delay in the matter which would be caused if
we were to remand  the  aforesaid aspect  of the  case to the
learned Trial Court, only on the ground that the same did not
receive  consideration  of  the  learned  Court,  we  deem  it
appropriate to pass necessary orders giving the child Tina in
adoption  to  the  appellant.   The  CARA  will  now  issue  the
necessary conformity certificate as contemplated under clause
34(4) of the Guidelines of 2011.  The appeal consequently shall
stand allowed in the above terms.
...…………………………J.
[P. SATHASIVAM]Page 18
18
.........……………………J.
[RANJAN GOGOI]
                                            .........……………………J.
[V. GOPALA GOWDA]
New Delhi,
February 08,  2013.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.