1 .

LAKSHMI KANT PANDEY

UNION OF )NDIA

February 6, 1984

[P. N. BHAGWATI, R. s. PATHAK AND AMARENDRA NATH SBN, JJ.]

Adoption of Children bY foreigners-Intra-national adoptions-Normative and Procedurai safeguards to be insisted 'upon so far as a foreigner wishing to take

a child in adoption, outlined-Constit,; t; on of India, 1950 Artie/es 15,24 and 39 C and Guardian and Wards Act (Act VIII of 1890), Section-~ 7 to.9 a1Jd ]].

The petitioner, an advocate of the Supreme Court addressed a letter in public interest to the Court, complaining of mat-practices indulged in by social organiSation and vnlunhiry agencies engaged in the work of offering Indian Children in adoption to foreign parents, the petitioner alleged that not only Indian Children of tender age are under the guise of adoption "exposed to the Jong horrendous journey to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the shelter and Relief Houses, they in course of time become beggars or prostitutes ' for want of .proper care from their alleged fo&ter parents." The ptiti.oner,

accordingly, sought relief restraining Indian based private agencies ''from carrying put further activity of routing children for adopticn abroad" and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of ador)tion of Indian Children by Foreign parents. Being a public interest litiga. tion, the letter wa.s treated as a writ petition.

Disposing of the Writ Petition, after indicating the principles and norms to be observed in giving a Child in adoption to foreign p3.rets, the Court

HELD : 1 : I. Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible cnly if the child is brought up in a family. The most congenial environment would, of cotlrse, be that of the family of his bio. logic2't parents. But if for any reason it is not possible for the biolog'cal parents or other near relative to look after the child or the child is abandoned and it is either not possible to trace the parenrs or the parents .are not willin_g to take care cif the child, the next best alternative would be tofind adoptive parents for the child so ihat the child can grow up unde'r the loving care and attentiob of the adopthe :)arents. The adootive parents would be the next best substitute fo~ the biological parents. [8J3EF] ' '

1 : 2. When the parents of a child want to give it away in adoption or the child is abandOned and it is considered necessary in the inte:est of the 9hild

796 StlPRl!MB COURT REPOFTS

(1984) 2 S.C.R.

to give it in adoption, every effort must be made first to find adoptive parents fOr it within the country, because such adoP ion would steer clear of any pro

bJcms of assimilation of the child in the family of the adoptive parents which migi.1t arise on account of cultural, racial ur linguistic diftCrences in case of adoption of the child by foreign parents. If it is not possible to find suitable adoptive parents for the child within the country, it may become necessary to give the 'Child in adoption to foreign parents rather than allow the child to grow up in an orphanage or an institution where it will have no family life and no love and affeciion of parents and quite often, in the socioeconomic conditions prevailing in the country, it might have to lead the life of a destitute, half clad, half.hungry and sufferin5 from mal-nu1rition and illness. [ • '4B DJ

2: I. The primary object of giving the child in adoption should be the welfare of the child. Great care has to be exercised in permit ting the child to be given in adoption to foreign parents, lest_ the chi l.d may be neglected or abandoned by tbe adoptive parenls in the foreign country or the adoptive parents may nt be able to provide to the child a life or moral or material securi1y or the child may be subjected to moral or sexual abuse or forced labour

or e1; perimentation for meidcal or other research and n, ay be placed in a worse situation than that in his own country. [i:ll~G-H; 8l6A]

2 : 2. Since there is no statutory enactment in our country providing for adoption of a_ child by foreign parents or laying down the procedure which must be followed in such a case, resort is had to the provbions of the Guardians and Wards Act, 1890 for tl1e purpo!'e of facilitating such adoption. [8 ~4G]

2 : 3. The High Courts of Bombay, Delhi and Gujarat have laid down by Rules and Instructions certain procedure when a foreigner makes an application for adoption under the Guardian and Wards Act including issuing of a notice to the Indian Council of Social Welfare and other otllcially recognised social welfare agencies with a view to assist the ClJUrl in properly and carefully scrutinising the applications of the foreign parents for determining whether it will be in the interest of the child and promotive of its welfare, 1 o be adopred by ihe foreign parents making the application or in other words, whether such adoption will provide moral and material security to the child wi h an opportu~ nity to grow into the fu!I stature of its personality in an atmosphere of ll:ve and affection and warmth of a family he., rth and home. This procedure is eminently desirable and it can help considerably to reduce, if not e'iminate, the possibility of the child being adopted by unsuitable or undesirable parents or being placed in a family where it may be neglected, maltreated or exploited by the adoptive parents. [828B-E] ·

Rasik/al Chaganlal Mhta's case A.f.R. 1982 Gujarat 193, approved.

3 : i. The requirements which hould be insisted upon so far ali a foreigner wishing to take a child in adoption and the procedure that should be followed for the purpose of ensuring that such inter-country adopt; on'l do not lead to abuse mal-treatment or exploitation of children and secure to them a healthy, decent family life are as under :

(I) Every application from a foreigner desiring to adopt a child must.be

• \

" I

1..K., PANDEY i>. UNiON 797

sponsored bY. a social or childwelfare agency recognised or licensed by the governinent of the country in which the foreigner is resident. No application by a foreigner tor taking a child in adoplioil should be entertained dircc ly by any social or welfare ageilcy of India working in the area of inter country adoption or by any institution or centre or home to which children are com mitted by the juvenile court. This is essential primarily for three reasons. . . .

[8JIG-H]

Firstly. it will help to reduce, if not eliminate altogether, the possibility of profiteering and trafficking in children. because if a foreigner were allowed to contact directly agencies or individuals in India for the purpose of obtaining a child in adoption, he might, in his anxiety to sc;; cure a child for adoption, -be induced or persuaded to pay any unconscionable or unreasonable amount which might. be demanded by the agency o individual procuring the child. Secondly it would be almost importsi blc for the court to satisfy itself that the foreigner who wishes to take the child in adoption would be suitable as a parent for the child and whether he would be able to provide a stable and secure famiJy life to' the childand would be able ro hand!re transracial, trans.cultural and trans.national problems likely to arise from such adoption, because where the application for adopting a child _has not ben sponsored by a social or child welfa1c agency in the country

of the foreigner, there would be no proper and salisfactory home study report on which the court can rely. Thirdly, in such a case, whre the application of a foreigner for taking a child in adoption is made directly without the inter vention of a social or child welfare agency, 'there would be no authority or agency in the country of, the foreigner wh9 could be made responsible fur super vising the progress of the child and ensuring that the child is adopted at the earliest in accordance with law and grows up in an atmosphere of warmth and affection with moral and material security assured to it. [832A-E]

Every application of a foreigner for taking a child in adoption must be accompanied by a borne study report and the ocial Or child welfare agency spOosor in such appJ.cation should also send along with it a recent photograph of the family, a marriage certificate of the foreir.ner and his or her spouse as also a declaration concerning their health together with a certificate regarding rheir medical fitness duly certified by a medical doctor, a declaration regarding their financial Slatus alongwith supporting documents including employer's certificate where applicable, incorlle-tax assessment orders, bank references and particulars concerning the properties owned by them, and also a declaratiorl stating that they are willing to be appoinied guardian of the child and an undei taking that they would adopt the child according to the law cf their country within a period of not more than two years from time of arrival of the child in their country and give intimation of such adoption to 1he court appointing them as guardian.as also to the social or child welfare agency in Jndia proces. sing tbeir case, and that they would maintain the child and provide it necessary education and up bringing according to their status and they would also send to the court as also to the social or child welfare agency in lndi'a reports relat ing to the progress of the child alongwith its recent photograph, the fn.quency of such progress reports being quarterly duriug the first two years and half yearly for the next three years. The application of the foreigner must also be accompanied by a Power of Attorney in favour of an Officer of the oci8I or child welfare agency in India which is requested to process the case and such

798 SUPltEME COURT REPOltTS

[1984) 2 S.C.R.

Power of Attorniy should authorise the Attorney to handle the case on behalf of the . foreigner in ca.:; e the foreigner is not in a position to come to India.

The social or child welfare agency sponsoring the application of the foreigner 1nust also certify that the foreigner seeking to adopt a child is permitted to do so according to the law of his country. These certificates, declarations and documents must accompany the:' application of the foreigner for taking child in adoption, shouid be duly notarised by a Notary Public Whose signature should be duly attested either by an Officer of the Ministry of External Affairs or Justice or Social Welfare of the country of the foreigner or by an Officer of the Indian Embassy or High Commission or Consulate in that country: The social or child welfare agency sponsoring the applicatioh of the forcipner must also undertake while forwarding the application to the social or child welfare agency in India, that it will ensure adoption of the child by the foreigner according to the law of his country within a period not exceeding two years and as soon as the adoption is affected, it will send two certified} copies of ' 1he adoption order to the social or child welfare agency in India through which the application for guardianship is processc~. so that one c;; opy can be

filed in court and the 01her can remain with the social ol child welfare agency in India. The social or child welfare agency sponsoring the application must also agree to send to the concerned social or child welfare agency in India Progress reports in regard to the child, Quarterly during the first year and half yearly for the subsequent year nr years until the adotrtion is effected. and it must also undertake that iri case of disruption of the family of the foreigner before adoptiori can be effected, it wilt take care of the child and find a suitable alternative placement for it with the approval of the concerned social or child welfare agency in India and report such alternative placement to the .court handling the guardianship proceedings and such information shall be passed on both by the court as also by the concerned social or child welfare agency in India to the Secretary~ Ministry of Social Welfare, Government of India. [8l3C-H; 834A-E]

3: 2. The Government of India shall Prepare a list of social or child welfare agencies licensed or recognised for inter-country adoption by lhe Government of each foreign country where children from India are taken iri adoption and this list shall be prepared after getting the necessary information from the government of each such foreign country and the Indian Diplomatic Mission in that foreign country. Such lists shall be supplied by the Governm; nt of India to the various High Courts in India as also to the social or child welfare agencies operating in India in the area of inter-country adoption under licence or recognition from the Government of IAdia. l8J4B F; [835 B]

3 : 3. If the biological parents are known, they should be helped to

undertand all the implications of adoption including the possibility of adoption by a foreigner and they should be told specifically that in case the child is adopted, it would not be posllible for them to have any further contact with the ct>ild The biological parents should not be sujccted to any dure"ss io making a decision about "relinquishment and cveo aftert hey have taken a deci~

sion to relinQuish the child f0r giving in adoption, a further period of abo"ut threemonths should be allowed to them to reconsider their decision.

But once the decision is taken and riot reconsidered within such further time as may be allowed to them, it must be regarded as irrevocable and the proc~ urc for

L. IC PANDEY V. UNION 799

giving the child in adoption to a foreigner can then be initiated without any further reference to the bi_ologica\ parents by fil(ng an application for appointment. of the foreigner as guardian of the child. Th:reafter there can be no question of once again consulting the biological parents whether they wish to give the cfiild in adoption or they want to take it back. But in order to eliminare any possibility of mischief and to rriake sure that the child bas in fact surrendered by its biological parents, i_t is necessary that the Institution or Centre or home for Child Care or social or Child Welfare Agency to which the chiJd is surrendered _by 1he biological parents, should take fiom the biological parents a document of surrender duly signed by the biological parents and attested by at least two responsible persons nnd such document of surrender should not only contain the names of the biological parents and their address but also information in regard to the birth of the child and its background, heaith and development. If the biological parents state a prefe- . rence for the religious upbringing of the child, their wish should as far as possible be respected. but ultimately the interest of the child alone should be the sole guiding factor and the biologic:il parents should be informed that the child n1ay be given in adoption even to a foreigner who professes a religion different from that of the biological parents. The biological parents ... should not be induced or encouraged oi" even be permitted to take a decision in re_gard to giving of a child in adoption before the birth cf a ch.ild or within a period of three months fro1n the date of birth. This precaution is necessary because the biological parents must have reasonable time after 1he birth of the chi id to take a decision whether to rear up the child themselves or to relinquish it for adoption and mortover it n1ay be necessary to allow some time to the child to overcome any health problems experienced afcer: birth.

[835-H; 8!6A-D; 836GH]

3: 4. It should nc.t be open to any and every agency or individual to process an application from a foreigner for taking a child in adoption and such application .should be processed only through a social or child welfare agency licensed or recognised by the Government 6f India or the Government of the State in which it is operating. Since an application for appointment as guardian can be processed onJy by a recognised social or child welfare agency and noe e!Se, any unrecognised institution, centre or agency which has a chilJ under its care would have to approach a. recognised social or child welfare agency if it desires such child to be given in inter-countiy adoption, and in that event it must send without any undue delay the name and must send without any undue delay the name and particulars of such child to the recognised social or child welfare agency throu.gh which such child is proposed to be givn in inter-country adoption. The Indian Council of Social Welfare and the Indian Council for Child Welfare are clearly tWo social or Child welfare agencies operating at the national le"vel and recognised by the Government of Jndia. But apart from these two recogoh, ed social or child welfare agencies functioning at the national level, there are other social 'or child welfare agencies engaged in child care and welfare and if they have good standing and reputa tion and are doing . commendable work in the are of child care and welfare they should also be recognised by the Government of India or the Governffient of the State for the purpose of intercountry adoptions. 'But before taking a decision to reconise any particular social or child weJfate agency for the purpose ofinter-couritry adoptions the Government of India or the GOvemment

of a State would do well to examine whether the social Or child welfare agency

soo SUPREME COURT k.EPORTS [1984] 2 s.c.R.

has proper staff with professional social work experience, because otherwise it may not be possible for the social or child welfare agency to carry out satisfactorily the highly responsible task of ensuring proper placement of a child with a foreign adoptive family. The Government of India or th c Government of a State recognising any social or child welfare agency for inter-country adoptions rnust insist as a condition of recognition that the social or child welfare a.gency shall maintain proper accounts which shall be au.dited by a charte-red accountant at the end of every year and it shall not charge to the foreigner wishing to adopt a child any amount in excess of that actually incurred by way of legal or other ex:pensrs in connection with the application for appointment of guardian inclt!ding such reasonable remuneration or honorarium for the work done al)d trouble taken in processing, filing and pursuing the application as may be fi<ed by the Court .. [837B-H; 838A-D]

3 :- 5. Every recognised social or child welfare agency must maintain _a register in which the names and particulars of all children proposed to be given in inter-country adoption through it must be entered and in regard . to each such child, the recognised social or child welfare agency must prepare a child study report through a professional social worker t_.:iving all reJevent information in regard to jhe child so as to help the foreigner to come to a decision whether or not to adopt the child and to understar d the child, if he decides to adopt it as also to assist the court Jn coming to a decision whether it will be for the welfare of the child tb be given in adoption to the foreigner wishing to adopt it. The child study report should contain as far as poss ble information in regard to the folJowing matters :--

(l) Identifying information, supported where possible by documents.

(2) Information about original parents, including their heaJth and details

of the mother's pregnancy and birth.

(3) Physical, intellectual and emotional development.

(4) Health report prepared by a registered medical practitioner preferably by a paediatrician.

(5) Recent photograph.

(6) Present environment-category of care (Own home, foster home, institution etc,) relationships routines and habits.

(7) Social worker's assessment and reasons for suggesting inter-country adoption. [838G-H; 839AE]

G 3 : 6. The recognised social or child welfare agency must insist upon approval of a specific known child and once 1hat approval is obtained the recognise:i ocial or child welfare agency should immediately without any undue delay proceed to make an application for appointment of tlie foreigner as guardian of the chiJd. Such application would have to be made in the court within whose jurisdiction the child ordinarily resides and it must be accompanied by copies of the home study report, the child study report and H other certificates and documents forwarded by the social or child welfare agency

L. K, PANDBY v. UNION 801

sponsoring the application of the foreigner for taking lhe child in adoption.

It is also necesary that the recognised social or child welfare agency through which an application of a foreigner for taking a chi1d in adOption is routed must before offering a child in a'ctoption, m1ke sure that the child is free to be adopted. The recagnised social or child welfare agency must place sufficient material before .the court to 'satisfy it that the child is legally available for adoption. It is also necessary that the recognised social or child welfare agency must satisfy itself, firstly,~ tht there is no impediment in the way of the Child entering the country of the prospective adoptive parent; secondly. that the travel documents for the child can be obtained at the appropriate iime and lastly, that' the law of .the country of the prospective adoptive parent permits legal adoption of the child and that on such legal adoption being cOnciuded, the child would acquire the same legal status and rights of inberi tance as a natural born child and would be grarited citizenship ; n the country of adoption and it should file alongwitb the application for guardianship, a certificate reciting such satisfaction. [841CD; 842H; 843AD]

3 : 7. In caaes where a child relinquished by its b1ological parents or an orphan or destitu.tc or abandoned child is brought by an agency or individual from one State to another, there should be no objection to a social or child welfare agency. taking the cbiJd to another State, even it the objl!ct be to give it in adoption, provided there aro sufficient safeguards .to ensure that such social o_r child welfare agency does not indulge in any malpracticc.

There should also be no difficulty to apply for guardianship of the child in the court of the latter State. because the child not having any permanent place of residence would then be ordi0ari1y resident in the place where it is in the care and custody of such aiency or individual.

[8~3H; 844A-F]

Section 11 of the Guardians and Wards Act, 1890 provides for notice of the application to be issued to various persons incl.uding the parents of the child if they are residing in any State to which the Act extends. But, no notice under this section should be issued to the biological parents of the child, since it would create considerable amount of embarrassment and hardship if the biological parents were 1hen to come forward and oppose the application of the prospective adoptive parent for guardianship of the child. Moreover, the biological parents would then come to know who is the person taking the child in adoption and with this knowledge they would at any time be able to trace the whereabouts of the child and they may try to contact tl'le child resulting in emo1ional and psychological disturbance for the child which might affect his future happiness. for the same reasons, notice of the application for guardianship should also not be puplished in an); newspaper.· It. the court is satisfied, after giving notice of the application to the Indian Council of Child welfare or the Indian Council for Social Welfare or any of its branches for scrutiny of the application, that it will be for the welfare of.the child to be give io adoption to the foreigner making the application for guardianship, it will only then make an order appointing the foreigner as guardian of the child and permitting him to remove ihe child to his own Country with a vie~ to eventual adoption. The Court will introduce the following conditions in the order, namely : [846A:H; 848AB]

(i) That be forei$DCf wllo is poointcd l?uardfan shal! make proper .H

SUPREME COURT REPORTS

(1984] 2 S; C.R.

provision by way of deposit or bond or otherwise to enable the child to be repatriated to lndia should it become necessary for any reason.

[847C]

(ii) That 1he foreigner who is appointed guardian shall submit to the court as ilso to the Social or Child Welfare Agency processing the application for guardi?nship, progress repOrts of the child along with a recent photograph quarterly during the first two years and half yea.rly for the aext throe years. [8470]

(iii) The order appointing gu :rdian shall carry, atta<; hed to .it, a photograrh of the child duly counter-signed by av officer of the court.

[847F] Where an order appointing guardian of a child is made by the court, immediate intimation of the same shall be given to the Ministry of Social Wei fare; Govcrnmeni of lndi~ as alsO to the Ministry of Social Welfare of the Governmen of the State in which the court is situate and copies of such order sha11 also be forwarded to the two resnective Ministries of Social Welfare. The Minis1rr of Social Welfare, Government of fr dia shall maintain a register containing names and other particulars of the children in respect of whom orders for appointment of guardian have been made as also names, addressea and other particulars of the prospective adoptive parents who have been appointed such guardians and . who have been permitted to take away the children for the pufpose of adoption. The Govt. of India will also sent to the Indian Embassy or High Commission in the country of "he pirospective adoptive parents from time to time the names, addresses an~ other particulars of such . prospective adoptive parents together with particulars of the children taken by them and requesting the Embassy or High Commission to maintain and unobtrusive watch over the welfare and progress of such children in order to safe. guard against any possible mal-treatment exploitation or use for ulterior purposes and: to immediately report and instance of rnaJ.treatment, negligence or xploitation to the Government of India for suitable action.

1 . . .

[8470-H; 848A-C] 3 : s. The social or child welfare agency which is looking after the child selected by a prospective adoptive parent, may legitimately receive from such prospective adoptive parent maintenance expenses at a rate of not exceed ini; i: Rs 60 per day (this outer limit being subjective to revision by the Ministry of Social Welfare, Government of India from time to time) from the date of selection of the child by him until the date the child leaves for going to is new home as also medical rxoense1 including hospitalisation charges, any, actually incurred by such social or child welfare agency for the child.

But the claim for payment of .such maintenance charges and medical expnses shall be Submitted to the prospective adoptive parent. [842C-D]

3 : 9. Jf a child is to be given in inter.country adoption, it would be desirable that it is given in such adoption as far as possible before it complete~ the age of 3 years.· The reason is that if a child is adopted before it attains the ag'! of understanding, it is always easier for it to get assimilated and inte grated in the new environment in which it may find itself on being adopted by a foreign parent. Children above the age of 3 years may also be given in inter-country adoption There can beno hard and fast rule in this connec .. tion. Even children between the ages of. 3 to 7 years may be able to assimilate

~~mselves in tl:~.e new s1:1rroundings withot any difficult~. Even f?hildre~

...

L, K. PANDEY v. UNION (Bhagwati, J.) 803

above the age of seven years may be giveb in intercountry adoption but theit wishes may be ascertained if they are in a position to indicate any preference. '

[845DG) 3: 10. The proceedings on the Application for guardianship should be . held by the Court in camera and they should be regarded as confidential and as soon as an order is made on the application for guardianship the entire proceedings including the papers and documents should be sealed. [84IC-D]

3: ll. The. social or child welfare agency which is looki11g after the child selected by a pro!lpeCtive adoptive parent, may legitimately receive from such prospective adoptive parent mainteance expenses at a rate of not excecdind Rs. 60 per day (this outer limit b:!ing subject to revision by the Ministry of Social Welfare, Government of India. fro01 .. time to time) from the date of setection Of the child by him until the date the child leaves for going to its new horiie as also medical expenses including hospitalisation charges, if any, actually incurred by sui:h social or child welfare agency for the child. But the claim for payment of such maintenance charges and edical expenses shall be submitted to .the prospective adoptive parent through the recognised social or child welfare agency which bas processed the application for guardianshiP and payfnent _in respect of such claim shall not be,_p.:ceivcd direclly by the social or child welfare agenc.y making the claim but shall be paid only through the recognised social or child welfare agency. However, a foreigner may make voluntary donatiOn to any social or child welfare agency bui no su'ch dona tion from a prospective adoptive parents shall be received until after the child has reached the country of its prospective adoptive parent, [842CG] ·

ORIGINAL JURISDICTION 1982.

Writ Petition (CRL) No. 1171 of

Under article 32 of the Constitution of India.

Petitioner in person .

FOR THE RESPONDENTS :

Miss A. Subhashini for Union of India and Ministry of Social Welfare.

Miss Kamini Jaiswal for, Indian Council of Social Welfare.

J.B. Dadachanji & Co. for Indian Council of Child Welfare and Swedish Embassy.

Dr. N. M. Ghatate for all God's Children Inc.

Arizone,

U.S.A.

P.H.' Parekh for Maharashtra State Women's Council of

Child Welfare, Bombay and for Enfants de-L'espoir.

Hi.

(1984] 2 S.C.R.

P.K. Chakeravorty for Legal Aid Service, West Bengal.

Mrs. Manik Karanjawa/a for Indian Associations for Promotion of Adoption ..

Mrs Urmila Kapur for SOS Children's Village of India.

Kai/ash Vasdev for Missionary of Charity, Calcutta.

Ba/dev Raj Respondent in person.

G.M. Coelho Bar at Law for Enfant's du Mande (France)

Miss Rani Jethama/ani for Kuanyin Charitable Trust.

B.M. Bageria for Terre Des Hommes (India) Society.

Sukumar Ghose for Mission of Hope (India) Society, Calcutta.

S.K. Mehta . for Netherlands Inter Country Child Welfare Oraganisation.

Parijot Sinha for society for International Child Welfare.

Kai/ash Vasdev for Bhavishys.

The Judgment of the Court was delivered by

BHAGWATI, J. This writ petition has been. initiated on the basis of a letter addressed by one Lax mi Kant Pandey, an advocate practising in this Court, complaining of mat-practices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The letter referred to a press report based. on "empirical investigation carried out by the staff of a reputed foreign magazine" called "The Mail" and alleged that not only Indian children of tender age are under the guise of adoption ''exposed to the long horrendous journey ' to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the Shelter and Relief Homes, they in course of time become beggars or prostitutes for want of proper care from their alleged foreign foster parents." The petitioner accordingly sought relief restraining Indian based private agencies "from carrying out further activity of routing children for adoption abroad" and directing the Govern-

;::

1 -~

L.K. PANDBY v. UNION (Bhagwati, J.) 805

ment oflndia, the Indian Council of Child Welfare and the Indian Council of Social _Welfare to carry. out their obligations in the matter of adoption of Indian children by foreign parents. This letter was treated as a writ petition and by an Order dated 1st September, 1982 the Court issued notice to the Union of India the Indian Council of Child Welfare and the Indian Council of Social Welfare to appear in answer to the writ petition and assist the Court in laying down principles and norms which should be followed in determin• ing whether a ehild should be allowed to be adopted by foreilin parents and if so, the procedure to be followed for that purpose,

with the object of ensuring the welfare of the child.

The Indian Council of Social Welfare was the first to file its written submissions in response to the notice issued by the Clouft

and its written submission ij.led on 30th September, 1982 not only carried considerable useful material bearing on the question of adoption of Indian children by foreign parents but also contained. various suggestions and recommendations for consideration by the Court in formulating principles and norms for permitting such adoptions and laying down the procedure for that purpose. We shall have occasion to refer to this large material placed before us as also. to discuss the various suggestions. and recommendations made in the written submission by the Indian Council of Social Welfare when we take up for coesideration the various issues arising in the writ petition. Suffice it to state for the present that the written submission of the Indian Council of Social Welfare is a well thought out document dealing comprehensively with various aspects of the problem in its mani-fold dimensions. When the writ petition reached hearing before the Court on 12th October, 1982 the only writtn submission filed was that tlt_e Indian Council of Social Welfare and neither the Union of India nor the Indian Council of Child Welfare had made any response to the notice issued by the Court. But there was a telegram received from a Swedish Organisation called 'Barnen Framfoer Allt Adoptioner" intimating to the Court that this Organisation desired to participate in the hearing of the writ petition and to present proper material before the Court. S .O.S, Children's Villages of India also appeared through their counsel Mrs. Urmila Kapoor and applied for being allowed to intervene at the hearing of the writ petition so that they could made their submissions on the question of adoption of Indian Children by foreign parents.

Since S.O.S. Children's Villages of India is admittedly an organisation concerned with welfare of children, the Court, by an Order dated 12th October, 1982, allowed them tq intervene and to ma!<e

' ·.~

C.l

. l H

'.)

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SUPREME COURT REPORTS [1984) 2 S.C.ll.

their submissions before the Court. The Court also by the same Order directed that the Registry may address a communication to Barnen Framfoer Allt Adoptioner informing them about the ad journed date of hearing of the writ petition and stating that if they'

wished to present any material and make their submissions, they. could do so by filing an affidavit before the adjourned date of heariJ; g: The Court also directed the Union of ndia to furnish before the next hearing of the writ petition the names of "any Indian lnsti~ tutions or Organisations other than the Indian Council or'Sociai Welfare and the Indian Council of Child Welfare, which are engaied or involved in offering Indian children for adoption by foreign parents" and observed that if the Union of India does not have this information, they should gather the requisite information so far as it is possible for them to do so and to make it available to the Court.

The Court also issued a similar direction to the Indian Council oi'

Child Welfare, Indian Council of Social Welfare and S.O.S.

Children's Villages of India. There was also a further direciion given in the same Order to the Union of India, the Indian Council of Child Welfare, the Indian Council of Social Welfare and the S.O.S. Children's Villages of India "to supply to the C.ourt information in regard to the mmes and particulars of any foreign agencies which are engaged in the work of finding Indian children for adop0 tion for foreign parenis". The writ petition was adjourned to 9th November, 1982 for enabling the parties to carry out these directions. ··

It appears that the Indian Council of Social Welfare thereafter in compliance with the directions given by the Court, filed copies of the Adoption of Children Bill, 1972 and the adoption of Children, Bill 1980. The adoption of Children Bill, 1972 was introduced in the Rajya Sabha sometime in 1972 but it was subsquently dropped; presumably because of the opposition of the Muslims stemning from the fact that it was intended to provide for a uniform law of adoption applicable to all communities including the Muslims. It is a little difficult to appreciate why the Muslims should have opposed this Bill which merely empowered a Muslim to adopt if he so wished; it had no compulsive force requiring a Muslim to act contrary to his religious tenets : it was merely an enabling legis lation and if a Muslim felt that it was contrary to his religion to adopt, he was free not to adopt. But in view of the rather strong sentiments expressed by the members of the Muslim Community and with a view not to offend their religfous susceptibilities, the Adoption of Children Bill, 1980 which was introduced in the Lok

!' I

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L.K. PANDEY v. ENION (Bhagwati, J.) 807

Sabha eight years later on 16th December, 1980, contained an ex A press provision that it shai( not be applicable to Muslims. Apart from this change in its coverage the Adoption of Children Bill, 1980 was substantially in the same terms as the Adoption of Children Bill, 1972. The Adoption of' Children Bill 1980 has unfortunatety notyet been enacted into law but it would be useful to notice some of the relevant provisions of this Bill in so far as they indicate what. •3' B principles and norms the Central Government regarded as neceSliary to be observed for securing the welfare of children sought to be given in adoption to foreign parents and what procedural safeguards the Central Governmentthought, were essential for securing this end. Clauses 23 <tn.d 24 of the Adoption of Children Bill, 1980 dealt with the problem of adoption of Indian children by parents

'.)C domiciled. abroad and, in so far as material, they provided iis follows :

" "23 (1) Except antler the authority of an order under section 24; it shall no_t be lawful for any person to take or send out of India a child who is a citizen of India to any (]) place outside India with a view to the adoption of the child by any person.

(2) Any person who takes. or sends a child out .of India to any place outside India in contravention of sub- r section (l) or makes or takes part in any arrangements for

'.IJ: transferring the care and custody of a child to any person for that purpose shall lie punishable with imprisonment for " a term which may extend to six months or with fine, or ' with both. . 1

(24) (I) If upon an application made by a person who is not domiciled in India, the district court is satisfied that the applicant intends to adopt a child.under the law of ... or within the country in which he is domiciled, and for that purpose desires to remove the child from India either immediately or after an interval, the court may make an order (in this section referred to as a provisional adoption order) authorising the applicant to remove the child for tl!e purpose aforesaid and giving to the applicant the care and custody of the child pending his adoption as aforesaid:

Provided that '!0 application shall be entertained

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SUPRBMB COURT RBPORTS [1984] 2 s.c.a

unless it is accompanied by a certificate by the Central Government to the effect that-

(i) the applicant is in its opinion a fit person to adopt the child ;

(ii) the welfare and interests of the child shali be safeguarded under the law of the country of domicile of the applicant;

(iii) the appliaant has made proper provision by way of deposit or bond or otherwise in accordance with the rules made under this Act to enable . the child to be re- patriated to India, should it become necessary for any reason.

(2) The provisions of this Act relating to an adoption order shall, as far as may be; apply in relation to a provisional adoption order made under this section.

The other caluses of the Adoption of Children Bill, 1980 were $Ought to be made applicable in relation to a provisional adoption order by reason of sub-clause (3) of clause 24. The net effect of this provision, if the Bill were enacted into law, would be that in :1 view of clause 17 no institution or organisation can make any arrangement for the adoption of an Indian child by foreign parents unless such institution or organisation is licensed as a social welfare Institution and under Clause 21, it would be unlawful to make or to give to any person any payment or reward for or in consideration of the grant by that person of any eonsent required in connection f with the adoption of a child or the transfer by that person of the care and custody of such child with a view to its adoption or the making by that person of any arrangements for such adoption.

Moreover, in view of Clause 8, no provisional adoption order can be made in respect of an Indian child except with the consent of tile parent or guardian of such child and if such child is in the care G of an institution, except with the C0nsent of the institution given on its behalf by all the persons entrusted with or in charge of its management, but the District Court can dispense with such consent if it is satisfied that the person whose consent is to be dispensed with has abandoned, neglected or persistently ill-treated the child or has persistently failed without reasonable cause to discharge

0his . ; !)bligation as parent or guardian or can not be found or is incapable B of giving consent or is withholdin~ consent unreuonably. When a

l..11:. :PANDEY v. UNION (Bhagwati, J.) ' 809

provisional adoption order is made by the District Court ou the application of a per son domiciled abroad, such persou would be entitled to obtain the care and custody of the child in respect of which the order is made and to remove such child for the purpose of adopting it under the law or within the. country in which he is domiciled .. These provisions in the Adoption of Children Bill, 1980 will have to be borne in mind when we formulate the guidelines which must be observed in permitting an Indian child to be given in

adoption to foreign parents. Besides filing copies of the Adoption of Children Bill, 1972 and the Adoption of Children Bill, 1980 the Indian Council of Social Welfare also filed two lists, one list giving names and particulars of recognised agencies in foreign countries engaged in facilitating procurement of children from other countries for adoption in their own respective countries and the other list c6ntaining names and particulars of institutions arid organisations in India engaged in the work of offering and placing Indian children for adoption by foreign parents.

The Writ Petition thereafter came up for hearing on 9th D November, 1982 when several applications were made by various <I institutions and organisations for intervention at the hearing of the writ petition. Since the questions arising in the writ petitio'n were of national importance, the Court thought that it would be desirable to have assistance from whatever legitimate source it. might come and accordingly, by an order dated 9th November, 1982, the Court granted permission to eight specified institutions or organisations to file affidavits or statements placing relevant material before the Court in regard to the question of adoption of Indian children by foreign parents and directed that such affidavits or statements should be filed on or before 27th November, 1982. The Court also. issued

notice of the writ petition to the State of West Bengal directing it to file its affidavit or statement on or before the same date. The Court also directed the Superintendent of Tees Hazari courts to produce at the next hearing of the writ petition quarterly reports in regard to the orders made under the Guardian and Wards Act , 1890 . entrusting care and custody of Indian children to foreign parents during the period of five years immediately prior to 1st October,

1982. Since the Union of India had not yet filed its affidavit or . statement setting out what was the attitude adopted by it in regard to this question, the Court directed the Union of India to file its affidavit or statement within the same time as the others.

The Court then adjourned the hearing of the writ petition to 1st December '1982 in order that the record may be completed by that time.

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SUPREME COURT REPORTS [1984] 2 s.o.il.

Pursuant to these directions given by the Court, various affidavits and statements were filed on behalf of the Indian Council of Social Welfare, Enfants Du Monde, Missionaries of Charity, En fants De L's Espoir, Indian Association for promotion of Adoption Kuan-yin Charitable Trust, Terre Des Homes (India) Society; Maharashtra- State Women's Council, Legal Aid Services West Bengal, SOS Children's Villages of India, Bhavishya International Union. for Child Welfare and the Union of India. These affidayits and statements placed before the Court a wealth of material. bearing , upon the question of adoption of Indian children by foreign parents 1 and made valuable suggestions and recommendations for the consi- , deration of the Court. These affidavits and statements were supple-. mented by elaborate oral arguments which explored every facet of the question, involving not .only legal but also sociological considerations. We are indeed grateful to the various participants in_, this inquiry and to their counsel for the very able assistance rendered,, by them in helping us to formulate principles and norms which should be observed in giving Indian children in adoption to foreign parents and the procedure that should be followed for the purpose. of ensuring that such inter-country adoptions do not lead to abuse maltreatment or exploitation of children and secure to them a healthy, decent family life.

'• ·, I

• '!': It is obvious that in a civilized society the importance of child E welfare cannot be over-emphasized, because the welfare of the entire~ community, its growth and development, depend on the health and" well-being of its children. Children are a "supremely importani national asset" and the future well being of the nation depends on how its children grow and develop. The great poet Milton , put it admirably when he said : "Child _shows the man a~ F morning shows the .day" and the Study . Team on Social Welfare said much to the same effect when it observed that "the physical.· and mental health oflhe nation is determined largely by .. the manner in which it is shaped in the early stages". The child iS a soul with a being, a nature and capacities of its own, who must lie ' helped to find them, to grow into their maturity, into fulness of' G physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; orherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique mental immaturity and incapacity to look-after themselves. That is why therr is a growing realisation in every part of the globe that H children must be brought up in an atmosphere of love and affection

_rm..

i:;.K.· PANDEY v. UNION (Bhagwati, J.) 811

and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and ecquire self-confidence and self-respect and a balanced view of life with full appreciation and realisation of the role which they have to play in the nation buildit1g process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process. In India this consciousness is reflected in the provisions enacted in tl1e Constitution. Clause (3) of Article 15 enables the State . to make special provisios inter alia for children and Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses (e) and (f) of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and. strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against tnoral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect. and safeguard the .interest. and welfare of children in the county.

The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goal-oriented preambula!ory introduction : ·

"The nation's children are a supremely important asset. Their nurture and solicitude are our responsibility.' Children's programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skills and motivations needed by society. Equal oppor- . tunities for development to all children during the period of growth should be our aim, for this would serve our larger purpose ofreducing inequality and ensuring social justice."

The National Policy sets out the measures which the Governmen.t of India proposes to adopt towards attainment of the objectives set out in the preamoulatory introduction and they include measures designed to protect children against neglect, cruelty and exploitation

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812 SUPRBME COURT REPORtS (1984j 2 s.c.ll:

A' and to strengthen family ties "so that full potentialities of growth of children are realised within the normal family neighbourhood and community environment." The National Policy also lays down priority in programme formation and it gives fairly hlgh priority to maintenance, education and training of orphan and destitute children.

There is also provision made in the National Policy for const_itution B of a Natioual Children's Board and pursuant to this provision, the Government of India has Constituted the National Children's Board with the Prime Minister as the chair person. It is the function of the National Children's Board to provide a focus for planning and review and proper coordination of the multiplicity o{ services striving to meet the needs of children and to ensure at different levels C continuous planning, review and coordination of all the essential services. The National Policy also stresses the vital tole which the voluntary organisations have to play in the field of education, health recreation and social welfare srrvices for chlldren and declares that it shall be the endeavour of State to encourage and strengthen such voluntary organisations.

D There bas been equally great concern for the welfare of children at the international level culminating in the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on 20th November, 1959. The Declaration in its Preamble points out that "the child, by reason of his physical and mental E immaturity, needs special safeguards and care, including appropriate. legal protection, before as well as after birth", and that "mankind.

owes to the child the best it bas to give" and proceeds to formulate several Principles of which the following are material for our present purpose:

F "PRINCIPLE 2 : The child shall enjoy special protection and shall be given opportunities and facilities by law and by. other means, to enable him to develop physically mental ly morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the' enactment of laws for this purpose the best interests of the G child shall be the paramount consideration."

PRINCIPLE 3 : The cliild shall be entitled from his birth to a name and a nationality.

PRINCIPLE 6 : The Child, for the full and harmonious development of hls personality, needs love and under- .

7 . '

Lit, p ANDBY v. UNION (iJhagwati, J.) ill~

standing. He shall, wherever possible, grow up in the care and under the responsibility of his parents, nd in any case ln an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be seperated from his mother. Society and the public authorities shall have t.he duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable.

PRINCIPLE 9 : The child shall be protected against all forms of_neglect, cruelty and exploitation. He shall not be. the subject of traffic, in any form.

PRINCIPLE 10 : The child shall be protected from practices which may foster racial, religious and any other form of discrimination.

He shall be brought up. in a spirit of understanding, tolerance friendship among peoples, peace and universal brotherhood and in full consciousness that his energy and'talents should be devoted to the service of his fellow men."

Every child hos a right to love and be loved and to grow Up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family. The mosl congenial environment would, of course, be that of the family of his biological parents. But if for any reason it is not possible for the biological parents or other near relative to look after . the child or the child is abandoned and it is either not possible to trace the parents or :the parents are not willing to take care of the child, the next best alternative would be to find adoptive parents for the child so that the child can grow up under the loving care and atten• tion of the adoptive parents. The adoptive parents would be the . next best substitute for the biological parents. The practice of: adoption has been prevalent in Hindu Society for centuries and it is recognised by Hindu Law, but in a large number of other countries it .is of comparatively recent origin while in the muslim countries it is totally unknown. Amongst Hindus, it is not merely ancient Hindu 4w which recognises the practice of adoption but it has also be.en legislatively recognised in the Hindu Adoption and Maintenance Act, 1956. The Adoption of Children Bill 1972 sought to provide for a uniform law of adoption applicable to all communities includ-

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: UPREME COURT REPORTS [1984] !2 s.c.il.

ing the muslims but, as pointed out above, it was dropped owing to the strong opposition of the muslim community. The Adoption of Children Bill, 1980 is now pending in Parliament and if enacted, it will provide a uniform law of adoption applicable to alt communities in India excluding the muslim community. Now when the parents . of a ?hild want to give it away in adoption or the child is abandoned and it is considered necessary in the interest of the child to give it in adoption, every effort must be made first to find adoptive parents for it within the country, because such adoption would steer clear of any problems of assimilation of the child in the family of the adoptive parents which might ari1e on .account of cultural, racial or linguistic differences in case of adoption of the child by foreign parents. If it is not possible to find suitable adoptive parents for the child within the country, it may become necessary to give the child in adoption to foreign parents rather than allow the child to grow up in an orphanage or an institution where it will have no family life and no love and affection of parents and quite often, in the socioeconomic conditions prevailing in the country, it might have to lead the life of a destitute, half clad, half hungry and suffering from mal-nutrition and illness. Paul Harrison a free-lance journalist working for several U.N. Agencies including the International Year of the Child Secretariat points out that most third world children suffer "because of their colintry's Jack of resources fo' development as well as pronounced inequalitie' in the way available resources are distributed" and they face a situation of absolute material deprivation. He proceeds to say that for quite a large. number of children in the rural areas, "poverty and lack of education of their parents, combined with little or no access to essential services of health, sanitation and education, prevent the realisation of iheir full human potential making them more . likely to grow up uneducated, unskilled and unproductive" and their life is blighted by malnutration, lack of health care and disease and illness caused by starvation, in1pure water alld poor sanitation.

What Paul Harrison has said about children of the third world applies to children in India and if it is not possible to provide to them in India decent family life where they can grow up under the loving care and atten tion of parents and enjoy the basic necessities of life such as nutritive food, health care and education and lead a life of basic human digi:tity with stability and security, moral as well as material, there is no reason why such children should not be allowed to be given H • in adoption to foreign parents. Such adoption would be quite consistent with our National Policy on Children because it would

L; it, PANDEd v. UNION (Bhagwati, J.) 815

provide an opportunity to children, otherwise destitute, neglected

A >. or .abandoned, to lead a healthy decent life, without privation and suffering arising. from poverty, ignorance, mal-nutrition and lack of sanitation and free from neglect and exploitatio~, where they would be . able to realise "full potential of growth". But of course .. as we ... said above, every effort must be made first to see if the child can fl be rehabilitated by adoption within. the country and if that is not B possible, then only adoption by foreign parents, or as it is some ti.1ne called 'inter country adoption' should be acceptable. This ptinciple stems from the fact th.at inter country adoption may in-.i valve trans-racial, trans-cultural and trans-national aspects which. would not arise in case of adoption within the country and the fist - ".:\ alternative should therefore always be to find adoptive parents for . C the child within the country. In fact, the Draft Guidelines of Procedures Concerning Inter-Country Adoption formulated at the International Council of Social Welfare . Regional Conference of Asia aud Western Pacific held in Bombay in 1981 and approved .at the Workshop on Inter Country Adoption held in Brighton, U.K. on 4th September, 1982, recognise the validity of this principle in clause 3.1 which provides: "Before'any plans are considered for a child to be adopted by a foreigner, the appropriate authority or agency shall consider all alternatives for permanent family care within tbe child's own country". Where, however, it is not possii l D

ble to find placem 'nt for the child in an adoptive family within the country, we do not see anything wrong if : a home is provided to E the child with an adoptive family in a foreign country. The Government of India also in the affidavit filed on its behalf by Miss B. Sennapati Programme Officer in . the Ministry of Social Welfare seems to approve of inter-country adoption for Indian children and 1

the proceedings of the Workshop on Inter Country Adoption held in Brighton, u.K. on 4th September, 1982 clearly show that the Joint . F Secretary, Ministry of Social Welfare who represented the. Govern-' nient_ of India at the Workshop "affirmed support of the' Indian -

Governinent to the efforts of the international organisations in pro-· moting measures , to protect wajfare and interests of.children who" are addpted aborad."

But while supporting inter-country adoption, it is necessary to bear in .mind that the primary object of giving the child in adoption

being the welfare of the child, great care has to be exercised in permitting the child to be given in 'adoption to foreign parents, .Jest" the child may be neglected or abandoned by the adoptive parents in

: ,.

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816 SUPREMll COURT REPORTS [19&1] 1 s.c.I\,

the foreign country or the adoptive parents may not be able to .pro vide to the child a life of moral or material security or the child may be subjected to moral or sexual abuse or forced labour or ex perimentation for medical or other research and may pe placed in a worse sitnation than that in his own country. The Economic and Social Council as also the Commission for Social Development have therefore tried to evolve social and legal prihci plcs foF the protection and welfare of children given in inter-country adoption, The Economic and Social Council by its Resolution 1925 LVIII requested the Secretary General of the United Nations to convene a group of Experts with relevant experts with relevant experience of family and child welfare with the following mandate :

"(a) To prepare a draft decleration of social and legal princip_les relating to adoption and foster placement of children nationally and internationally, and to review and appraise the recommendations and guidelines incorporated in the report of the Secretary General and the rele vant material submitted by Governments already available to the Secretary General and the regional commissions.

(b) To draft guidelines for. the use of Governments in the implementation of the above principles, as well as suggestions for improving procedures within the context of their social development-including family and child wel fare-programmes.''

Pursuant to this mandate an expert Group meeting was convened in Geneva in December, 1978 and this Expert Group adopted a "Draft declaration on social and legal principles relating to the protection and welfare of children with special reference of foster placemnt and adoption, nationally and internationally". The Commission , for Social Development considered the draft Declilration at its 26th Session and expressed agreement with its contents and the Economic and Social Council approved the draft Declaration and request ed the General Assembly to consider it in a suitable manner.

None of the parties appearing could give us information whether any action has been taken by the. General Assembly. B'ut the draft Declaration is a very important document in as much it lays down certain social and legal principles which must be observed in case of inter-country adoption. Some of the relevant principles set out

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L, K, PANDBY r. UNION (Bhagwatl, J.) 817

in thC' draft Declaration may be referred to with advantage : • "Art. 2. It is recognised that the best child welfare is good family welfare.

4. When biological family care is unavailable or in appropriate, substitute family care should be considered.

7. Every child has a right to a family. Children who cannot remain in their biological family should be placed in foster family or adoption in preference to institutions, unless the child's particular needs can best be met in a specialized facility.

8. Children for whom institutional care was formerly regarded as the only option should be placed with families, both foster and adoptive.

12. The primary purpose of adoption is to provide a permanent family for a child who cannot be cared for by his/her biological family.

14. In considering possible .adoption placements, those responsible for the child should select the most appropriate environment for the particular child concerned.

15. Sufficient time and adequate counselling should be given to the biological parents to enable them to reach a decision on their child's future, recognizing that it is in the child's best in.terest to reach this decision as early as possible.

16. Legislation and services should ensure that the child becomes an integral part of the adoptive family.

17. The. need of adult adoptees to know about their background should be recognized.

19.

Governments should determine the adequacy of their national services for children, and recognize those children whose needs are not being met by existing services.

For some of these children, inter-country adoption may be considered as a suitable means of providing them with a family.

21, In each countrr. placements §hould bo macle a

A /). ·"

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SUPRBMB COURT REPORTS

(1984) 2 S.C.R.

through authorized agencies competent to deal with intercountry adoption services and providing the same safe-·· .guards and standards as are applied in national adoptions.

22. Proxy adoptions are not acceptable, in consideration of the child's legal and social safety.

23. No adoption plan should be considered before it has been established that the child is legally free for adoption and the pertinent documents necessary to complete the adoption are available. All necessary consents must be in a form which is legally valid in both countries. It must be definitely established that the child will be able to imm'.- grate into the country of the prospective adopters and can subsequently obtain their nationality.

24. In intercountry adoptions, legal validation of the adoptio11 should be assured in the countries involved.

25. The child should at all times have a name, nationality and legal guarC!iati."

Thereafter at the Regional Conference of Asia and Western Pacific held by the International Council on Social Welfare in Bombay in i9ll, draft guidelines of procedure concerning inter-country adop- tion were formulated and, as pointed out above, they were approved at the Workshop held in Brighton, U.K. on 4th September, 1982.

These guidelmes were based on the Draft Declaration and they are extremely relevant as they reflect the almost unanimous thinking of participants from various countries who took part in the Regionat Conference in Bombay and in the Workshop in Brighton, U.K.

There are quite .a few of these guidelines which are important and which deserve serious consideration by us : ·

"1.4. In all inter-country adoption arrangements, the welfare of the child shall be prime consideration.

G Biological Parents: :)

2.2. When the biological parents are known they shall he offered social work services by professionally qualified workers (or experienced personnel who are supervised by such qualified workers) before and after the birth of the JI ohild. "

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L, K. PANDEY 4. UNION (Bhagwati, ii.) 819

2.3. These services shall assist the parents to consider .all the alternatives for the child's future. Parents shall not be subject to any duress in making a decision about adoption. No commitment to an adoption plan shall be permitted before the birth of the child. After allowing parents a reasonable time to reconsider any decision to relinquish a child for adoption, the decision should become irrevocable.

2.5. If the parents decide to relinquish the child for adoption, they shall be helped to understand all the implications, including the possibility of adoption by foreigners and of no further contact with the child.

2.6. Parents should be encouraged, where possible, to provide information about the child's background and development, and their own health.

2.8. It is the responsibility of the appropriate autho-

B 6

rity or agency to ensure that when the parents relinquish a D child for adoption all of the legal requirements are met. •1

2.9. If the parents state a preference for the religious up-bringing of the child, these wishes shall be respected as far as possible, but the best interest of the child will be the paramount consideration.

2.10. If the parents are not known, the appropriate authority or agency, in whose care the child has been placed, shall endeavour to trace the parents and ensure that the above services are provided, before taking any action in relation to adoption of the child.

The Child:

3.1. Before any plans are considered for a child to be adopted by foreigners, the appropriate authority or agency shall consider all aHernatives for permanent family care

within the child's own country.

3.2. A child-study report shall be prepared by professional workers (or experienced personnel who are supervised by such qualified workers) of an appropriate authority '

or agency, to provide information which will form a basis for the selection of prospe9tive adopters for the child, H

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SUPREME COURT REPORTS [1984] 2 s.c.R.

assist with the child's need to know about his original family at the appropriate time, and help the adoptive parents understand the child and have relevant information about him/her.

33. As far as possible, the child-study report shall B include the following : ·

' ., D

3.3.1. Identifying information, supported where possible by documents.

3.3.2. Information about original parents, including their health and details of the mother's pregnancy and the birth.

3.3.3. Physical, intellectual and emotional development.

3.3.4. Health report.

3.3.5. Recent photograph.

3.3.6. Present environment-category of care (Own home, foster home, institution, etc.) relationships, routines and habits.

3,3.7. Social Worker's assessment and reasons for suggesting inter-country adoption.

3.4. Brothers and sisters and other children who have been cared for as siblings should not be separated by adoption placement except for special reasons.

3.5. When a decision about an adoption placement is finalised, adequate time and effort shall be given to preparation of the child in a manner appropriate to his/her age and level of development. Information about the child's new country and new home, and counselling shall be pro vided by a skilled worker.

3.5. (a) Before any adoption placement is finalized the child concerned shall be consulted in a manner appropriate to his/her age and level of development.

3.6. When older children are placed for adoption, . 1 the adoptive parents should be encouraged to come to the

. H child's country of ori11in, to meet him/her there, lea~!)

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L.K. P~NDBY v. UNION (Bhagwati, J.) 821

personally about his/her. first environment ; ind escort the child to its new home.

Adoptive Parents :

4.3. In addition to the usual capacity for adoptive, parenthood. applicants need to have the capacity to handle

the trans-racial, trans.-cultural and trans-national aspects of

 B inter-country adoptions.

4.4, A family study re.oort shall be prepared by professional worker (oi experienced personnel who are supervised by such qualified workers) to indicate the basis on which the applicants were accepted as prospective adopters.

It should include an assessment of the parents' capacityto parent a particular type of child and provide relevant information for other authorities such as Courts.

4.5.

The report on the family study, which must be made in the community where the applicants are residing, shall include details of the following :

4.5.1.

Identifying information about_ parents and other members of the family, including any necessary documentation.

4.5.2.

Emotional and intellectual capacities of prospective adopters, and their motivation to adoption.

4.5.3. Relationship (material, family, relatives, friends, community)

4.5.4.

Health.

4.5.5.

Accommodation and financial position.

4.5.6.

Employment and other interests.

4 5.7.

Religious affiliations and/or attitudes.

4.5.8.

Capacity for adoptive parenthood, and details of child preferred (age, sex, degree of disability).

4.5.9. Support available from relatives. friends, com- . munity.

4.5.10.

Social worker's assessment and details of adoption authority's approval.

[\984) 2 S, C, R:

4,5.11. Recent photograph of family.

Adoption A•thorities and Agencies :

5.1. Inter-country adoption arrangements should be made only through Government adoption authorities (or agencies recognised by them) in both sending and receiving countries. They shall use experienced staff with professional social work education or experienced personnel supervised by such qualified workers.

5.2. The appropriate authority or agency in the child's country should be informed of all proposed intercountry adoptions and have the opportunity to satisfy itself that all alternatives in the country have been considered, .and that inter-country adoption is the optimal choice of care for the child.

5.3. Before any inter-country adoption plan is considered, the appropriate authority or agency in the child's country should be responsible for establishing that the child is legally free for adoption, and that the necessary documentation is legally valid in both countries.

5.4. Approval of inter-country adoption applicants is a responsibility of the appropriate authorities or agencies in both sending and receiving countries. An application to adopt a child shall not be considered by a sending countrf unless it is forwarded through the appropriate authority or agency in the receiving._ country.

5.5. The appropriate authority or agency in both countries shall monitor the reimbursement of co, ts involved in inter-country adoption to prevent profi_teering and traffic king in children.

5.6. xx xx xx xx

5.7. When a child goes to another country to be adopted, the appropriate authority or agency of the receiving country shall accept responsibility for supervision of the placement, and for the provision of progress reports for the adoption authority or agency in the sending country for the period agreed. upon,

:--,-

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L, K. fANDBY v. UNION (Bhagwati, J.) 823

5.8. In cases where the adoption is not to be finalised in the sending country, the adoption authority in the receiving country shall ensure that an adoption order is sought as soon as possible but not later than 2 years after placement. It is the responsibility of the appropriate authority or agency in the receiving country to inform the appropriate autnority or agency in the sending country, of .the details of the adoption order when it is granted.

5.8.1. In cases where the adoptioA is to be .finalised in tho sending country after placement, it is the responsibility of the appropriate authority or agency fo both the sending and receiving country to ensure that the adoption is finalised as soon as possible.

5.9. If the placemenfiisdisnipted before the adoption is finalised, the adoption authority in the receiving country . shali be responsible for ensuring, with the agreement of 'the adoption authority in the sending country that a satisfaciory alternative placement is made with prospective adoptive parents who are approved by' the adoption authorities of both countries.

Adoption Services ond Communities :

6.1. Appropriate . authorities o; agencies in.receiving countries shall ensure that there is adequate feedback to the appropriate authorities or agencies in sending countries, both in relation to intercountry adoption generally and to individual children where required.

6.2. xx xx xx xx

6.3.

The appropriate authorities and agencies in both sending and receiving countries have a responsibility .for public education in relation to inter-country adoption, to ensure that when such adoption is appropriate for children, public attitudes support this. Where public attitude is known to be discriminatory or likely to be hostile on. grounds of race or colour, the. appropriate authority or , agency in the sending country should not consider placement of the child,

[1984] 2 S.C, R.

Status of the Child ;

7.L Family;

It is essential that in inter-country adoption child.is given the same legal status and rights of inheritence, as if she/he had been born to the adoptive parents in marriage.

7.2. Name;

When the legal adoption process is concluded the child shall have the equivalent of a birth registration certificate.

7.3. Nationality;

When the legal adoption is concluded, the child shall be granted app<opriate citizenship.

74. xx xx xx xx

7.5. Immigration;

Before an inter-country adoption placement with particular prospective adopters is proposed, the appropriate authority or agency in the child's country shall ensiare that there is no hindrance, to the child entering the prospective adopters' country, and that travel documents can be obtained at the appropriate time.

We shall examine these provisions of the Draft Declaration and the draft guidelines of procedure when we proceed to consider and lay down the principles and norms which should be followed in intercountry adoption.

Now it would be convenient at this stage to set out the procedure which is at present being followed for giving a child in adop tion to foreign parents. Since there is no statutory enactment in our country providing for adoptivn of a child by foreign parents or laying down the procedure which must be followed in such a case, resort is bad to the provisions of the Guardians & Wards Act 1890 for the purpose of facilitating such adoption. This Act is an oldstatute enacted for the purpose of providing for appointment of guardian of the person or property of a minor. Section 4 subsection (5) clause (a) defines the "court" to mean the district court

-,.·

Uc. PANDEY ' UNION (Bhagwati, J.) 825

having jurisdiction to entertain an application under the Act for an A order appointing or declaring a person to be a guardian and the expression "district court" is defined in sub-section (4) of section 4 to have the same meaning as assigned to it in the Code of Civil Procedure and includes a High Court in the exercise. of its ordinary original civil jurisdiction. Section 7 sub-section (1) provides that where the court is satisfied that it is for the welfare of a minor that B an order should be made appointing a guardian of 'his person or property or both or declaring a person to be such a guardian, the court may make an order accordingly and, according to section 8, such an order shall not be made . except on the application of one of four categories of persons specified in clauses (a) to (d), one of them being "the person desirous of being the guardian of the minor" C and the other being "any relative or friend of the minor". Sub section (I) of section .9 declares that if the 'application' is with respect to the guardianship of the person of the minor-and that is the kind of application which is availed of for the purpose of intercountry adoption-it shall be made to the district court having jurisdiction in the place where the minor ordinarily resides. Then D follows section.11, subsection (I) which prescribes that if the court is satisfied that there is ground for proceeding on the aplication, it shall fix a date for the hearing thereof aud cause notice of the application and or the date fixed for the hearing to be served on the parents of the minor if they are residing in any State to which the Act extends, the person if any named in the petition as having E the custody or possession of the person of the minor, fhe person proposed in the application to be appointed guardian and any other person to whom, in the opinion of the court, special notice of the application should be given. Section 17 provides 'that 1n appointing guardian of a minor, the court shall be guided by what, consi.•- tently with the law to which the minor is subject, appears in the F circumstances to be for the welfare of the minor and in considering what will be for the welfare of the minor, the .court shall have regard to the age -sex, and religion of the minor, the character and .capacity o( the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his G property. The last materi.al section is section 26 which provides that a guardian of the person of a minor appointed by the court shall not, without the leave of the court by which he was appointed, remove the ward' from the limits , of its jurisdiction, except for such purposes as may be prescribed and the leave to be granted by th'e

A '

D . ..

826 SUPREME COURT REPoRTS .

[1982) 2 S.C.R.

court may be special or general. These are the relevant provisions of the Guardians and Wards Act 1890 which have a bearing on the procedure which is at present being followed for the purpose of carrying through intetcountry adoption. The foreign parent makes an application to the court for being appointed guardian of the person cif the child whom he wishes to take in adoption , and for leave of the court to take the child with him to his country on being appointed such guardian. The procedure to be followed by the court in disposing of such application is laid down by three High Courts in the country with a view to protecting the interest and safeguarding the welfare of the child, but so far .as the rest of the High Courts are concerned, they do not seem to have taken any steps so far in that direction. Since most of the applications by foreign parents wishing to take a child in adoption in the State of Maharashtra are made on the original side of the High Court of . . Bombay that .High Court has issued a notification dated !0th May 1972 incorporating Rule 361-.B in Chapter XX of the Rules of the High-Court of Bombay (Original Side) 1957 an this newly added Rule provides inter a/ia as follows :

When a foreigner makes an application for being appointed as the guard1an of the person or property of a minor, the Prothonotary and Senior Master shall .address a letter to the Secretary of the Indian Council of Social Welfare, informing him of the presentation of the application and the date fixed for the hearing thereof-he shall also inform him that any representation which the Indian Council of Social Welfare may make in the matter would be considered by the Court before passing the order on the application. A copy of the applicat1011 shall be forwarded to the Secretary of the Indian Council of Social Welfare alon6with the Jetter of Prothonotary and Senior Master."

The High Court of Delhi. has also issued instructions on the same lines to the Courts subordinate to it and these instructions read as follows :

-~-. -.,_.

(i) A foreigner desirous' of-being appointed guardian or the person of a minor and praying for leave to remove the minor to a foreign country, shall make an application for the purpose in the prescribed form under the Guardians and Wards Act, attaching with it three copies of passport size

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L.ic. PANDEY v. ENION (Bhagwati, J.) 827

photographs of the minor, duly attested by the person having custody of the minor at the time ; ·

(ii) If the court is satisfied that there is no ground for proceedings on the application, it shall fix a day for the hearing there of and cause notice of the application and of the date fixed for the hearing on the person and in the manner mentioned in Section 11, Guardians and Wards Act, 1890 as also to the general public and the Secretary of the Indian Council of child Welfare and consider their representation ;

(iii) Every person appointed guardian of the person of a minor shall execute a bond with or without .a surety or sureties as the court may think fit to direct and in such sum as the court may fix, having regard to the welfare of the minor and to ensure his production in the court if and when so required by the court ;

(iv) On the court making an order for the appointment of a foreigner guardian of the person of an Indian minor, a copy of the minor's photograph shall be counter-signed by the Court and issued to the guardian or joint guardian, as the case may be, appointed by the court alongwitb the certificate or

guardianship."

The High Court of Gujarat has not fra1ned any specific rule for this purpose like the High Courts of Bombay and Delhi but 'in a judgment delivered in 1 ~32 in the case of Rasiklal Chaganlal Mehta,(') the High Court of Gujarat bas maqe the following obser vations:

"In order that the Courts cari satisfactorily decide an intercou11try adoption case against the aforesaid back ground and in the light of the above referred gµidelincs, we consider it necossary to gi1'e certain direction>. In ali such cases, the Couri should issue notice to the Indian Council of Social Welfare (175, Dadabbai Naroji Road, Bombay

(I) AIR 1982 Guj. 193.

E .

l l

~ UPRBME COURT REPORTS (1984j 2 s.c.fl..

400001) and seek its assistance. If the Indian Counc.l of Social Welfare so desires it should be made a party to the proceedings. If the Indian Councilof Social

Wlfare does not ap.pear, or if it is unable, for some reason, to render assistance, the Court should issue notice to an independent, reputed and publicly/o!ficially recognised social welfare agency working in. the field and in that area and request it to render assistance in the matter." The object of giving notice to the Indian .Council of Social

Welfare or the Indian Council for Child Welfare or any other independent, reputed and publicly or officially recognised social welfare agency is obviously to ensure that the application of foreign

parents for guardianship of the child with a view to its eventual adoption is properly and carefully scrutinised and evaluated by an expert body .having experience in the area of child welfare with a view to assisting the Court in coming to the conclusion whether it will be in the. interest of the child, promotive of its welfare, to be adopted by the foreign parents making the application or in other words, whether such adoption will provide moral and material security to the child with an oppor.tunity to grow into the full stature of its personality in an atmosphere of love and affection and warmth of a family hearth and home. This procedure which has been evolved by the High Courts of Bombay, Delhi and Gujarat is, in our opinion, eminently desirable and it can help . considerably to reduce, if not eliminate, the possibility of the child boing adopted by unsuitable or undesirable parents or being placed in a family where it may be neglected, maltreated or exploited by the adoptive parents. We would strongly commend. this procedure for acceptance by every court .in the country which has to deal with an application by a foreign parenf for appointment of himself as guardian of a child with a view to its eveutual adcption. We shall discuss this matter a little more in detail when we proceed to consider what p_rinciples and norms should be laid down for inter-country adoption, but, in the meanwhile, proceeding further with the narration of the procedure followed by the courts in Bombay, Delhi and Gujarat, we may point out that when notice is issued by the court, the Indian Council of Social Welfare or the Indian Council for Child Welfare or any other recognised social welfare agency to which notice is issued, prepares what may conveniently be described as a child study report and submits it to the Court for its consideration. What are the different aspects relating to the child in respect of which the child study report should give information is a matter which we shall presently discuss, but suffice it io state fo~ the time

t..K. PANDEY v. UNION (Bhagwati, J.) 829

being that the child study report should contain legal and social data in regard to the child as .also an assessment of its behavioural pattern and its , intellectual, emotional and physical development.

The Indian Council of Social Welfre has evolved a standardised form of the child study report and it has been annexed as Ex. 'C" to the reply filed in answer . to the notice issued by the Court.

Ordinarily an adoption proposal from a foreign parent is sponsored by a social or child welfare agency recognised or licensed . by the Government ohhe country in which the foreign parents resides and the application of the foreign parent for appointment as guardian of the child is accompanied by a home study report prepared by such social or child welfare agency.

The home study report contains an assessment of the fitness and suitability of the foreign parent for taking the child in adoption based on his antecedents, family background, financial condition, psychological and emotional adapta bility and the capacity to look after the child after adoption despite racial, national and cultural differences, The Indian Council of Social Welfare has set out in annexure 'B' to the reply filed by it, guidelines for the preparation of the home study report in regard to the foreign parent wishing to take a chiid in adoption, and it i obvious from these guidlines which we shall discuss a little later, that the home study report is intended to provide social and legal facts in regard to the foreign parent with a view to assisting the court in arriving at a proper determination of the question whether it will be in the interest oft.he child to be given in adoption to such foreign parent.

The court thus has in most cases where an application is made by a foreign parent for being appointed guardian of a child in the courts in Bombay, Delhi and Gujarat, the child study report as well as the home study report together with other relevant material in order to enable it to decide whether it will be for the welfare of the child to be allowed to be adopted by the foreign parents and if on a consideration of these reports and material, the court comes to the.conclusion that it will be for the welfare of the child, the court makes an order appointing the foreign parent as gurdian of the child with liberty to him to take the child to his own country with view to its eventual adoption. Since adoption in a foreign country is bound to take some time and till then the child would continue to be under the guardianship of the foreign parent by virtue of the order made by the court, the foreign -parent as guardian would continue to be accountable to the court for the welfare of the child' and the court therefore takes a bond from him with or without surety or sureties in such sum as may be thought .for ensuring its production if and . when required by the court.

SUPRBMB COURT RBPORTS

(1984] 2 S C.R.

' The foreign parent then takes the child to his own country either personally or through an escort and the child is then adopted by the foreign parent according to the law of his country and on such adoption, the child acquires the same status as a natural born child with the same rights of inheritance and succession as also the same nationality as the foreign parent adopting it. This is-broadly the procedure which is followed in the courts in Bombay, Delhi and Gujarat and there can be no doubt that, by and large, this procedure tends to ensure the welfare of the child, but even so, there are several aspects of procedure and detail which need to be considered in order to make sure that the child is placed in the right family where it will be. able to grow into full maturity of its personality with moral and material . security and in an atmosphere of love and warmth and it would not be subjected to neglect, maltreatment or exploitation.

Now one thing is certain that in the absence of a law providing for adoption of an Indian child by a foreign parent, the only way in which such adoption can be effectuated is by making it in accordance with the law of the country in which the foreign parent resides.

But in order to enable such adoption to be made in the country of the foreign parent, it would be necessary for the foreign parent to take the child to his own country where the procedure for making the adoption in accordance with the law of that: country can be followed.

However, the child which is an Indian national cannot be allowed to be removed. out of India by the foreign parent unless the foreign parent is appointed guardian of the person of the child by the Court and is permitted by the Court to take the child to his

' own country under the provisions of the Guardians and Wards Act

1890. Today, therefore, as the law stands, the only way in which a foreign parents can take an Indian child in adoption is by making an application to the Court in .which the child ordinarily resides for being appointed guardian of the person of the child with leave to remoye the child out of India and take it to his own country for the purpose of adopting it in accordance with the law of his country.

We are definitely of the view that such inter-country adoption should be permitted after exhausting the possibility of adoption within the country by Indian parents. It has been the experience of a large . number of social welfare agencies working in the area of adoption that, by and large, Indian parents are not enthusiastic about taking a stranger child in adoption. and even if they decide to take such child in adoption, they prefer to adopt a boy rather than a girl and they are. wholly averse to adopting a handicapped child, with the result that the majority of abandoned, destitute or orphan girls and

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L.K. PANDBY.d. UNION (Bhagwati, J.) 831

. handicapped children have very little possibility of finding adoptive parents within the country and their future lies only in adoption by foreign parents. But .at the same.time it is necessary to bear in mind that by reason of the unavailability of children in the developed countries for adoption, there is a . great demand for adoption of children from India and consequently there is increasing danger of ill-equipped and sometimes even undesirable organisations or individuals activising themselves in the field of inter-country adoption with a view to trafficking in children and sometimes it mav also happen that the immediate prospect of transporting the_ child from neglect and abandonment to material comfort and security by placing it with a foreigner may lead to other relevant factors such as the intangible needs of the child, its emotional and. psychological requirements and possible difficulty of its assimilation and integration in a foreign family with a different racial and cultural background, being under-emphasized, if not ignored._ It is therefore necessary to evolve normative and procedural safeguards for ensuring that the child goes into the right family which would provide it warmth and affection of family life and help it to grow and develop physically, emotionally, intellectually and spiritually.

These safeguards we now proceed to examine ..

We may make it clear. at the outset thatwe arc not concerned here with cases of adoption of children living with their biological parents,. for in such class of cases, the biological parents would be the best persons to decide whether to, give their child in adoption to foreign parents. It is only in those cases where.the children sought to be taken m adoption are destitute or abandoned and are Jiving in social or child welfare centres that it is necessary to consider what normative and pr.ocedural safeguards seould be forged for protecting their interest and promoting their welfare.

Let us first consider what are the requirements which should be insisted upon so far ar a foreigner wishing to take a child in adoption is concerned. In the first place, every application from a foreigner desiring to adopt a chiid must be sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner is resident.

No application by a foreigner for taking a child in adoption should be entertained directly by any social or welfare agency in India working in the area cf inter-country adoption or by any institution or centre or home to which children are committed by the juvenile.court. This is essential primarily for three reasons. ·

832 SUPREME COURT llBi>ORtS

[J984J~ S.C.R,

Firstly, it will help to reduce, if not eliminate altogether the possibility of profiteering and trafficking in children, because if a foreigner were allowed to contact directly agencies or individuals in India for the purpose of obtaining a child in adoption, he might in his anxiety to secure a child for adoption, be induced or persuaded to pay any unconscionable or unreasonable amount which might be demanded by the agency or individual procuring the child.

Secondly it would be almost impossible for the court to satisfy itself that the foreigner who wishes to take the child in adoption would be suitable as a parent for the child and whether he would be able to provide a stable and secure family life to the child and would be able to handle trans-racial, trans-cultural and trans-national problems likely to arise from 'such adoption, because, where the application for adopting a child has not been sponsored by a social or child welfare agency in the country of the foreigner, there would be no proper arid satisfactory home study rport on which the court can rely. Thirdly, in such a case, where the application of a foreigner for taking a child in adoption is made directly without the intervention of a social or child welfare agency, there would be no . 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 earlist in accordance with law and grnws up in an atmosphere of warmth and affection with moral and materia 1 security assured to it. The record shows that in every foreign country where children from India are taken in adoption, there are social and child welfare agencies licensed or recognised by the government and it would not therefore cause an'y difficulty hardship or inconvenience if it is insisted that every application from a foreigner for taking a child in adoption must be span- . sored by a social or child welfare agency licensed or recognised or recognised by the government of the country in which the foreigner resides. It is not necessary that there should be only one social or child welfare agency in the foreign country through which an application for adoption of a child may be routed ; there may be more than one such social or child welfare agencies, but every such social or child welfare agency must be licensed or recognised by the govern- ment of the foreign country and the cout should not make an order for appointment of a foreigner as guardian unless it is satisfied that the application of the foreigner for adopting a child has been sponsored by such social or child welfare agency. The social or child welfare agency which sponsors the application for taking a child in adoption must get a home study report prepared by a prpfessional

L.K. PANDBd v. UNION (Bhagwatl, J.) 833

worker indicating the basis on which the application cif the foreigner for adopting a child has been sponsored by it. The home study report should broadly include information in regard to the various matters set out in Annexure 'A' to this judgment though it need not strictly adhere to the requirements of that Annexure and it should also contain an assessment by the social or child welfare agency as to whether the foreigner wishing to take a child in adop~ tion 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. Every application of a foreigner for taking a child in adoption must be accompanied by a home study report and the social or child we1fare agency sponsoring such application should also 'send along with it a recent photograph of the family, a marriage certificate of the foreigner and his or her spouse as also a declaration concerning their health together with a certificate regarding their medical fitness duly certificate by a medical doctor, a declaration regarding their financial status alongwith _ supporting documents including employer's certificate where applicable, incometax assessment orders, bank references and particulars concerning . the properties owned by them, and also a declaration stating that they are willing to be appointed guardian of the child . and undertaking that they would 'adopt the child according to the law -of their country within a period of not more th'an two years from the time of arrival of the child in their country and give intimation of such adoption to the court appointing them as guardian as also to the social or child welfare agency in India processing their case, they would maintain the child and provide it necessary education and up-bringing according to their status and they would also send to the court as also to the social or child welfare agency in India reports relating to the progress ofthe child alongwith itnecent photograph, the frequency of such progress reports being quarterly during the first two years and half yearly for the next three years.

The application .of the foreigner must also be accompanied by a Power of Attorney in favour of an Officer of the social or child welfare agency in- India which is requested to process the case and such Power of Attorney should authorise the . Attorney to handle the case on behalf of the foreigner in case the foreigner is n:ot in a position to come to India. The social or child welfare agency sponsoring the application of the foreigner must also certify that the foreigner seeking to adopt ii child is permitted to do so according to the law of his country. These certificates, declarations a11d documents which must accompany the application of the foreig-

834 SUPREMe couRt REPORTS

(1984) 2 s.c.R.

A ner for taking a child in adoption, should be duly, notarised by a Notary Public whose signature should be duly attested either by an Officer of the Ministry of External Affairs or Justice or Social Wei fare of the country of the foreigner or by an Officer of the Indian Embassy or High Commission or Consulate in that country. The social or child welfare agency sponsoring the application' of the B

0foreigner must also undertake while forwarding the appllcation to the social or child welfare agency in lndia, that it will ensure adop tion of the child by the foreigner according to the law of his country within a period not exceeding two years and as soon as the adoption is effected, it will send two certified copies of the adoption order to the social or child welfare agency in India through which the appli C cation for guardianship is processed, so that one copy can be filed in court and the other can remain with the social or child welfare agency in India. The social or child welfare agency sponsoring the application must also agree to send to the concerned social or child welfare agency in India progress reports in regard to the child, quarterly during the first year and half yearly for the subsequent year D or years until the adoption is effected, and it must also undertake that m case of disruption of the family of the foreigner before adop ti on can be effected, it will take care of the child and find a suitable alternative placement for it with the approval of the 'concerned social or child welfare agency in India and report such alternative placement to the court handling the guardianship proceedings and E such information shall be passed on both by the court as also by the concerned social or child welfare agency in India to the Secretary, Ministry of Social Welfare, Government of India. The Government of India shall prepare a list of social or cluld welfare agencies licensed or recognised for inter-country adoption by the government of each foreign country" where children from India arc taken in adop, F tion and this list shall be prepared after getting the necessary information from the government of each such foreign country and the Indian Diplomatic Mission in that foreigne country.

We may point out that the Swedish Embassy has in Annexure II to the affidavit filed on its behalf by Ulf Waltre, given names of seven Swedish organisatiqns or agencies which are authorised by the

G National Board for Inter-Country Adoption functioning under the Swedish Ministry of Social Affairs to "mediate" applications for adoption by Swedish nationals and the Indian Council of Social Welfare hasalso in the reply filed by it in answer to the writ 'peti; tion given a list of government recognised organisatios or agencies dealing in inter-country adoption in foreign countries. It should not ft therefore be difficult for the Gevernment of India to prepare a list

L.K. PANDEY v. UNION (Bhagwati, J.) 835 ' of social or child welfare agencies licensed or recognised for intercountry adoption by the Government in various foreign countries.

We direct the Government of India to prepare such list within six . months from today and copies of such list shall be supplied by the Government of India to. the various High Courts in India as also to the social or child welfare agencie> operating in India in the area of inter-country adoption under licence or recognition from the Government of India. We may of course make it clear that application of foreigners for appointment of themselves as guardians of children in India with a view to their: eventual adoption shall not be. held up until such list is prepared by the Government of India but they shall be processed and disposed of in the light of the principles and norms iaid down in this judgment.

We then proceed to consider the position in regard to, biological parents of the child proposed to be taken in adoption. What are 'the. safeguards which are required to be provided in so far as biological parents are concerned ? We may make it clear at the outset that when we . talk about biological parents, Vie mean botn parents .if they are together or the mother or the father if either is alone.

Now it sould-be regarded as an elementary requirement that if the biological parents are known, they should be properly assisted in making a decision about relinquishing the child for adoption, by the Institution or centre or Home for Child Care or social or child welfare agency to which the child is being surrendered. Before a dec.ision . is taken by the biological parents to surrender the chikl for adoption, they should be helped to understand all the implications of adoptions including the possibility of adoption by a foreigner and they should be told specifically that in case the child is .adopted, it would not be possible for them to have any further contact with the child. The biological parents should not be subjected to any duress in making a decision about reli1>quishment and even after they have taken a decision to' relinquish ihe child. for giving in adoption~ a further period of about three months should be allowed to them to reconsider their decision. But once the decision is taken and not reconsidered within such further time as may beall owed to them, it must be regarded as irrevocable a11d the procedure for giving the child in adoption to a foreigner can then be initiated without any further reference to'the biological parents by filing .an application for appointment of the foreig!'er as guardian of the child.

Thereafter there can be no question of once again consulting the biological parents whether they wish to give the child in adoption

IJT they want to take i\ back.· It wou\d be most unfair if after a

. (1984) 2 S.C.R.

child is approved by a foreigner and expenses are incurred by him for the purpose of maintenance of the child and some times on medical assistance and even hospitalisation for the child, the biological parents were once again to be consulted for giving them a locus penitentia to reconsider their decision. B.ut in order to eliminate any possibility of mischief and to make sure that the child has in fact , heen surrendered by .its biological parents, it is necessary that the Institution or Centre or Home for Child Care or social or child welfare agency tO which the child is surrendered by the biological parents, should take from, the biological parents a document of surrender duly signed by the biological parents and attested by at least two responsible persons and such document of surrender should not only contain the names of the biological parents and their address but also information in regard to the birth of the child and its background, health and development. If the biological parents state a preference for the religious upbringing of the child, their wish should as far as possible be respected, but ultimately the interest of the child alone should be the sole guiding factor and the biological parents should be informed that the child may be given in 11dop- . tion even to a foreigner who profe1ses a religion different from that of the biological parents. This procedure can and must be followed where the biological parents are known al)d they relinquish the child for adoption to an Institution or Centre or Home for Child Care or hospital or social or child welfare agency.

But where the child is an orphan, destitute or abandoned child and its parents are not known, the Institution or Centre or Home for Child Care or hospital or social or child welfare agency in whose care the child has come, must try to trace the biological parents of the child and if the biological parents can be traced and it is found that they do not want to take back the child, then the .same procedure as outlined above should as far as possible be followed.

But if for any reason the biological parents cannot be traced, then there can be no question of taking their consent or consulting them. It 'may also be pointed out that the biological parents should not be imduced or encouraged or even be permitted to take a decision in regard to giving of a child in adoption before the birth of the child or within a period of three months from the date of birth. This p_recaution is necessary because the biological parents must have reasonable timeafter the birth of the child to take a decision whether to rear up the child themselves or to relinquish it for adoption and moreover it may be necessary to allow some time to the child to overcome any health problems experienced after birth.

7 ._).·· -

L.K. PANDEY v. UNION (Bhagwati, J.)

We may now turn to consider the safeguards which should be observed in so far as the child proposed to be taken in adoption is concerned. It was generally Mreed by all parties appearing before the Court, whether as interveners or otherwise, that it should not be open to any and every ageacy or individual to process an application from a foreigner for taking a child in adoption and such application . should be processed only through a social. or child welfare agency licensed or recognised by the Government of India or the Government of the State in which it .is operating, or to put it differently in the language used by the Indian Council of Social Welfare in the reply filed by it in answer to the writ petition, "all private adoptions conducted by unauthorised individuals or agencies . should be stopped". The Indian Council of Social Welfare and the Tndian Council for Child Welfare are clearly two social or child welfare agencies operating at the national level and recognised by the Government of India, as appears clearly from theJetter dated 23rd August, 1980 addressed by the Deputy Secretary to the Government of India to the Secretary, Government of Kerela, Law Department, Annexure 'F' to the submissions filed by the Indian Council for Child Welfare in response to the writ petition. But apart from these two recognised social or child welfare agencies functioning at the national level, there are other social or child welfare agencies engaged in child care and welfare and if , they have good standing and reputation and are doing commendable work in the area of child care and welfare, there is no reason why they should not be recognised by the Government of India or the Government of a State for the purpose of inter-country adoptions. We would direct the Government of India to consider and decide within a period of three months from today whether any 'of the institutions or agencies which have appeared as interveners in the present \Hit petition are engaged in child care and welfare and if so, whether they deserve to be recognised for inter-country adoptions. Of course it would be open to the Government of India or the Government of a State suo m©tu or on an application made to it to recognise any other social or child welfare agency for the purpose of inter-country adoptions, provided such social or child welfare agency enjoys good reputation and is known fo~ its work in the field of child care and welfare.

We would suggest that before taking a decision to recognise any particular social or child welfare agency for the purpose of intercountry adoptions, the Government of India or the Government of a State would do well to examine whether the social or child welfare agency has proper staff with prfessional social work experience, pecause o\l)erwise it may not be possible for the social or ch.ild wel-

838 StIPREMB COURT REPORTS

(1984] 2 S.C R.

A fare agency to carry out satisfactorily the highly responsible task of .ensuring proper placement of a child with a foreign adoptive family.

It would also be dseirable not to recognise an organisation or agency whcih has been set up only for the purpose of placing children in adoption : it is only an organisation or agency which is engaged in the work of child care and welfare which should be regarded as B eligible for recognition, since iriter-country adoption must be looked upon not as an independent activity by itself, but as part of child welfare programme so that it may not tend to degenerate into tradmg. The Government of India or the Government of a State recognising any social or child welfare agency for inter-country adoptions must insist as 'a condition of recognition that the social or child C welfare agency shall maintain proper accounts which shall be audited by a chartered accountant at the end of every year and it shall not charge to the foreigner wishing to adopt a child any amount in excess of I.hat actually incurred by way of legal or other expenses in connection with the application for appointment of guardian including such reasonable remuneration or h9norarium for the work D done and trouble taken in processing, filing and pursuing the application as may be fixed by the Court.

Situations may frequently arise where a child may be in the care of a child welfare institution or centre or social or child welfare agency which has not been recognised by the Government. Since an application for appointment as guardian can, according to the principles and norms laid down by us, be processed only by a recognised social or child welfare agency and none else, ariy unrecognised in-. stitution, centre or agency which has a child under its care would have to approach a recognised social •Of child welfare agency if it desires such child to be given in inter-country adoption, and in that event it mnst send witho.ut any undue delay the name and particulars of such child to the recognised social or child welfare agency through which such child is proposed to be given in inter-country adoption.

Every recognised social or. child welfare agency must maintain a register in which the names and particulars of all children proposed to be given in inter-country adoption through it must be entered and in regard to each such child, the recognised social or child welfare agency must prepare a child study report through a professional social worker giving all relevant information in regard to the child so as to help the foreigner to come to a decision whether or not to adopt the child and to understand the child, if he decides to adopt it as also to assist the court in coming to a decision whether it will be for the welfare of the child to be given in adoption to th~

. ,/

_), -.+ r

...

L.K. PANDEY v. UNION (BhagWati, J.)

foreigner wishing to adopt it. The child study report should contain as far as possible information in regard to the following matters :

"(!) Identifying information, supported where possible by documents.

(2) Information about original parents, including their health and details of the mother's pregnancy and birth.

(3) Physical, intellectual and emotional development.

(4) Health report prepared by a reg\stered medical practitioner preferably by a paediatrician.

(5) Recent photograph.

 ( 6) Present environment - category of care {Own home, foster home, institution etc.) relationships; routines and habits.

(7) Social worker's assessment and reasons for suggest

ing inter country adoption;"

The government of India should, with the assistance . Of the Government of the States, prepare a list of recognised social or child welfare agencies with their names, addresses and other particulars and send such list to the appropriate department of the Goverihhent of each foreign country where Ihdian children are ordinarily taken in adoption so that the social dr child welfare agencies licensed ot recognised by the Government of such foreign country for °inter country adoptions, would know which social or child welfare agency in India they should approach for processing an application of its national for taking an Indian child in adoption.

Such list shall also be sent by the Government of India to each High Court with a requ\'st to forward it to the district courts within its jurisdiction so that the High Courts and the district courts in the country would know which are the recognised social or child welfare agencies entitled to process an applic'atioh for' appointment of a foreigner as guardian. Of course, it would be desirable if a Central Adoption Resource Agency is set up by the Government of India with regiO-· nal .branches at a few centres which are active in intercoiintty

. c

SUPREME COURT REPORTS [1984] 2 s.c R.

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 recognised social or child welfare agencies in the country. Every social or child welfare agency taking children under its care can then be required to send to sucb Central Adoption Resource Agency the names and particulars of children under its care who are available for adoption and the names and. parti£ulars SJf such children can be entered in a register to be maintained by such Central Adoption Resource Agency. But until such Central Adoption Resource Agency is set up, an application of a foreigner for taking an Indian child in adoption must be routed through a recognised social ot child welfare agency. Now before any such application from a foreigner is considered, every effort must be made by the recognised social or child welfare agency to find placement for the child by adoption in an Indian family. Whenever any Indian family approaches a recognised social or child welfare agency for taking a child in adoption, all facilities must be provided by such social or child welfare agency to the Indian family to have .a look at the children available with it for adopt'on and if the Indian family wants to see the child study report in respect of any particular child, child study report must also be made available to the Indian family in order to enable the Indian family to decide whether they would take the child in adoption. 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, subject only to one exception, namely, that if the child is handicapped or is in bad state of health needing urgent medical attention, which is not possible for the social or child welfare agency looking after the child to provide, tbe recognised social or child welfare agency need not wait for a period of two months and it can and must take immediate step.s for the purpose of giving such child in inter-country adoption. The recognised social or child welfare agency should, on receiving an application of a foreigner for adoption through a licensed or recognised social or child welfare agency in a foreign country, consider which child would be suitable for being given in adoption to the foreigner and would fit into the environment of his family and community and send the photograph and child study report of such child to the forei!lner for the purpose of obtaining . hi~

r-

. _Jr'-

t.k. PANDEY v. UNION (Bhagwati' j,) 84i

approval to the adoption of such child. The practice of accepting a general approval .of the foreigner to adopt any child should not be allowed, because it is possible that if the foreigner has not seen the phAograph of the child and has not studied the child study report and a child is selected for. him by the recognised social or child welfare agency in India on the basis of his general approval, he may on the 2.rrival of the child in his country find that he does not like the child or that the child is not suitable in which event the interest of the child would be seriously prejudiced. The recognised social or child welfare agency must therefore insist upon approval of a specific known child and once that approval is obtained, the recognised social or child welfare agency should immediately without any undue delay proceed to make an application for appointment of the foreig ner as guardian of the chiid.

Such application would have to be made in the court within whose jurisdiction the child ordinarily resides and it must be accompanied by copies of the h!)me study report, the child study report and other certificates and documents forwarded by the social or child welfare agency sponsoring the application of.the foreigner for taking the child in adoption.

Before we proceed to consider what procedure should be followed by the court in dealing with an application for appointment of a foreigner as guardian of a child, we may deal with a point of

doubt which was raised before us, namely, whether the social or child welfare agency which is looking after the child should be entitled to receive from the foreigner wishing to take the child in adoption any amount in respect of maintenance of the child or its medical expenses.

We were told that .there are instances where large amounts are demanded by so called social or child welfare agencies or indi viduals in consideration of giving a child in adoption and often this is done under the label of maintenance charges and medical expenses supposed to have been incurred for the child. This is a pernicious practice which is really nothing short of trafficking in children and . it is absolutely necessary to put an end to it by introducing adequate safeguards. There can be no doubt that if an application Of a foreigner for taking a child in adoption is required to be routed . through a recognised social or child welfare agency and the necessary steps for the purpose of securing appointment of the foreigner as guardian of the child have also to be ttken on\y through a reognised social or child welfare agency, the possibility of any so called social or child welfare agency .or individual trafficking in children by

demanding exhorbitant amounts from prospective adoptive parents under the guise of maintenance charges and medical expenses or

SUPREME COURT REPORTS (1984] 2 s.c.tl..

otherwise, would be almost eliminated.

But, at the same time, it would not he fair to S)lggest that the social or child welfare agency which is looking after the child should not be entitled to receive any amount from the prospective adoptive parent, when maintenance and medical expenses in connec:ion with the child are actually incurred by such social or child welfare agency.

Mny of the social orchild welfare agencies running homes for children have little financial resources of their own and have to depend largely on volun tary donations and therefore if any maintenance or medical expenses are incurred by them on a child, there is no reason why they should not be entitled to receive reimbursement of such maintenance and m_edical expenses from the foreigner taking thechild in adoption.

We would therefore direct that the social or child welfare agency which is looking after the child selected by a prospective adoptive parent, _may legitimately receive from such prospective adoptive parent maintenance expenses at a rate not exceeding Rs. 60 per day (this outer limit being subject to revision by the Ministry of Social Welfare, Government of India from time to time) from the date of selection of the child by him until the date the child leaves for going to its new home as also medical expenses including hospitalisation charges, if any, actually incurred by such social or child welfare agency for the child.

But the claim for payment of such maintenance charges and medical cxponses shall be rnbrnitted to the prospective adoptive parent through the recognised social or child welfare agency which has processed the application for guardianship and payment in respect of such claim shall not be received directly by the social or child welfare agency making the claim but shall be paid only through the recognised social or child welfare 2gency.

This procedure will to a large extent elim;_nate trafficking in children for money or benefits in kind and we would therefor< direct that this procedure shall be followed in ihe future.

But while giving this direction, we may make it clear that what we have said should not be interpreted as in any way preventing a foreigner from making voluntary donation to any social or child welfare agency but no such donation from a prospective adoptive parent shall be received until after the child has reached the country of its prospective adoptive parent.

It is also necessary to point out that the recognised social or child welfare agency through which an application of a foreigner for taking a child in adoption is routed must, before offering a child in adoption, make sure_ that the child is free to be adopted. Where the H parents have relinquished the child for adoption and there_ is a docu-

...

l..IC. PANDEY v. UNION (Bhagwati, J.)

ment of surrender, the child must obviously be taken to be free for adoption.

So also where a child is an otphan or destitute or abandoned child and it has not been possible by the concerned social or child welfare agency to trace its parents or where the child is committed by a juvenile court to an institution, centre or home for committed childre~ and is .declared t_o.be a destitute by the juvenile court, it must be regarded as free for adoption. The recognised social or child welfare agency must place sufficient material . before the court to satisfy it that the child is legally available for

rhe adoption. It is also necessary that the recognised welfare agency must satisfy itself, firstly, that there is no impediment in the way of the child entering the country of the prospective adoptive parent ; secondly, that the travel documents for the child can be obtained at the appropriate time and lastly, that the law of the country of the prospective adoptive parent permits legal adoption of the child and that no such legal 'adoption being concluded, the child would acquire the same legal status and rights d inheritance as a natural born child and would be granted citizenship in the country of adoption and it should file along with the application for guardianship, a certificate reciting such satisfaction.

We may also at this stage refer to one other question that was raised before us, namely, whether a child under the care of a social or child welfare agency or hospital or orphanage in one State can be brought to another State by a social or child welfare agency for t.hc purpose of being given in adoption and an application for appointment. of a guardian of such child can be made in the court of the latter State.

This question was debated 'before us in view of the judgment given by Justice Lentin of the Bombay High Court on 22nd July, 1982 in Miscellaneous Petition No. 178 o'f 19&2 and other allied petitions. We agree with Justice Lentin that the . practice of social or child welfare agencies or individuals going to different States for the purpose. of collecting children for being given in inter-country adoption is likely to lead to considerable abuse, because it is possible that such social or child welfare agencies or individuals may, by offering monetary inducement, persuade indigent parents to part with their children and then give the children to foreigners in adoption by demanding a higher price, which the foreigners in their anxiety to secure a child for adoption may be willing to pay. But we do not think that if a child is relinquished by its biological parents or is an orphan or destitute or abandoned child in its parent State, there should be any objection to a social or child welfare agency taking the child to another State, even if

. SUPREME COURT REPoRts [1984] 2 s.c.tt .

the object be to give it in adoption, provided there are sufficient safeguards to ensure that such social or child welfare agency does not indulge many malpractice. Since we are directing that every application of a foreigner for taking a child in adoption shall be routed only through a recognised social or .child welfare agency and an application for appointment of the foreigner as guardian of the child shall be made to the court only through such recognised social or child welfare agency, there would hardly be any scope for a social or child welfare agency or individual who brings a child from another State for the purpose of being given in adoption to indulge in trafficking and such a possibility would be reduced to almost nil.

Moreover before proposing a child for adoption, the recognised social or child welfare agency must satisfy itse If that the child has either been voluntarily relinquished by its biological parents without monetary inducement or is an orphan or destitute or abandoned child and for this purpose, the recognised social or child welfare agency may require the agency or individual who has the care and custody of the child to state on oath as to how he came by the child and may also, if it thinks fit, verify such statement, by directly enquiring from the biological parents or from the child care centre or hospital or orphanage from which the child is taken. Thi.s will considerably reduce the possibility of abuse while at the same time facilitating placement of children deprived of family love and care in smaller towns and rural areas.

We do noi see any reason why in cases of this kind where a child relinquished by its biological parents or an orphan or destitute or abandoned child is brought by an agency or individual from one State to another, it should not be possible to apply for guardian' ship of the child in the court of the latter State, because the. child not having any permanent place of residence, would then be ordinarily resident in the place where it is in the care and custody of such agency or .individual.

But, quite apart from such cases, we are of the view that in all cases where a child is proposed to be given in adoption, enquiries regarding biological parents, whether they are traceable or not and if traceable, whether they have voluntarily relinquished the child and if not, whether they wish to take the child back, should be completed before the child is offered for adoption and thereafter no attempt should be made to trace or contact the biological parents, This would obviate the possibility of an ugly and unpleasant situation of biological parents coming forward to claim the child after it has been given to a foreigner in adoption.

It is also necessary while considering placement of a child in adoption to bear in mind that brothers and sisters or children who have

...

t.k. PANDEY v. tJNION <iJhagwali, J.)

been brought up as siblings should not be separated except for special reasons and as soon as a decision to give a child in adoption to a foreigner is finalised, the recognised social or child welfare agency must if the child has reached the age of understanding, take steps to ensure that the child is given proper orientation and is prepared for going to its new home in a new country so that the assimilation of the child to the new environment is facilitated.

we mdst emphasize strongly that the entire procedure which we have indicated above including preparation of child study report, making of necessary enquiries and taking of requisite steps leading upto the filing of an application for guardianship of the child proposed to be given in adoption, must be completed expeditiously so that the child does not have to remain in the care and custody of a social or child welfare agency without the warmth and affection of family life, longer than is absolutely necessary .

We may also point out that if a child is to be given in intercountry adoption, it would be desirable that it is given in such adoption as far as po; sible before it completes the age of 3 years.

The reason is that if a child is adopted before it attains the age of understanding, it is always easier for it to get assimilated and integrated in the new environment in which it may find itself on being adopted by a foreign parent. Comparatively it may be some what difficult for a grown up child to get acclamatized to new surroundings in a different land and some times a problem may also arise whether foreign adoptive parents would be able to win the love and affection of such grown up child. But we make it clear that we say this, we do not wish to suggest for a moment that children above the age of three years should not be given in inter-country adoption.

There can be no hard and fast rule in this connection. Even children between the ages of 3 and 7 years may be able to assimilate themselves in the new surroundings without any difficulty and there is no reason why they should be denied the benefit of.family warmth and affection in the home of foreign parents, merely because they are past the age of 3 years. We would suggest that even children above the age of 7 years may be given in inter-country adoption but we would recommend that in such cases, their wishes may be ascertained if they are in a position to indicate any preference. The statistics placed before us sh6w that even children past the age of 7 years have been happily integrated in the family of their foreign adoptive parents ..

S46

SUPREME COURT REPORTS i!984) 2 SC.R.

Lastly, we come to the procedure to be followed by the court when an adp!ication for guardianship of a child is made to it.

Section ll of the Guardians and Wards Act, 1890 provides for notice of the application to be issued to various persons including the parents of the child if they.arc residing in any State to which the Act extends.

But. we are definitely of the view that no notice under this section should be issued to the biological parents of the child, since it .would create considerable amount of eml;)arrassment and hard ship if the biological parents were then to come forward and oppose the application of the prospective adoptive parent for guardianship of the child. Moreover, the biological parents would then come to know who is the person taking the child in adoption and with this knowledge they .would at any .time be able to trace the whereabouts of the child and they may try to contact the child resulting in emotional and psychological disturbance for the child which might affect his future happiness. The possibility also cannot be ruled'out that if the biological parents know who are the adoptive parents they may try to extort money from the adoptive parents. It is therefore absolutely essential that the biological parents should not have any opportunity of knowing who are the adoptive parents taking the child in adoption and therefore notice of the application for guardianship should not be given to the biological parents.

We whould direct that for the same reasons notice of the application for guardianship should also not be published in any newspaper.

Sec• tion 11. of the Act empowers the courno serve notice of the application for guardianship on any other person to whom, in the opinion of the court, special notice of the application should be given and in exercise of this power the court should, before entertaining an application for guardianship, give notice to the Indian Council of Child Welfare or the Indian Council for Social Welfare or any of its branches for scrutiny of the application with a view to ensuring that it will be for the welfare of the child to be given in adoption to the foreigner making the application for guardianship.

The Indian Council of Social Welfare or the Indian Council of Child Welfare to which ntice is issued by the court would have to scrutinise the application for guardianship made on behalf of the foreigner wishing to take the child in adoption and after examining the home ; tudy report, the child study report as also documents and certificates forwarded by the sponsoring social or child welfare agency and making necessary enquiries, it must make its representation to the court so that the C01lft may be able to satisfy itself whether t.he principles and norms as also the procedure laid down by us in this judgment have been observed and followed, whether the foreigner

{ ..

t.k. PANDEY v. UNION (Bhagwati, J.)

will be a suitable adoptive parent for the child and the child will he able to integrate and assimilate itself in the family and community. of the foreigner and will be able to get warmth "nd affection of family life as also moral and material stability and security and wh<ther it will be in the.interest of the child

0to be taken in adoption by the foreigner. If the court i.s satisfied, then and then only it will make an order appointing the foreigner as guardian of .the child and permitting him to remove the child to his own country with a view to eventual adoption. The court will also introduce a condition in. the order that the foreigner who is appointed guardian shall make proper provision by way of deposit or bond or otherwise to enable the child to be repatriated to India should it become necessary for and reason. We may point out 1hat such a provision . is to be found in clause 24 of the Adoption of Children Bill No. 208 of 1980 and in fact the practice of taking a bond from the foreigner who is appointed guardian of the child is being foloweld by the courts in Delhi as a result of practice instructions issued by the High Court of Delhi. The order will also include a condition that the foreigner who is appointed guardian shall submit to the Court as also to the Social or Child Welfare Agency processing the application for guardianship, progress reports of the child along with a recent photograph quarterly during the first two years and half yearly for the next three years. The court may also while making the order permit the social or chi.Id welfare agency which has taken care of the child pending its selection for adoption to receive such amount as the Court thinks fit from the foreigner who is appointed guardian of such child.

The order appointing guardian shall carry, attached to it, a photograph of the child duly counter-signed by an officer of the court. This entire procedure shall be completed by the court cxpediticusly and as far as possible within a period of. two months fro.m the date of filing of the application for guardianship of the child. The proceedings on the application for guardianship should be held by the Court in camera and they should be regarded as confidential and as soon as an order is made on the"appl; cation for guardianship the entire proceedings including the papers and documents should be sealed. When an order appointing guardian of a child is made by the court, immediate intimation of the same shall be given to the Ministry of Social Welfare, Government of India as also to the Ministry of Social Welfare of the Government of the State in which the court is situate and copies of such order shall also be forwarded to the two respective ministries of Social Welfare.

The Ministry of Social Welfare, Government of India shall maintain a register containing names and other particulars of the children in

SUPREME COURT REPORRS il984j 2 s.c.1.t

respect of whom orders for appointment of guardian have been made as also names, addresses and other particulars of the prospective adoptive parents who have been appointed such guardians and who have been permitted to take away the children for the purpose of •doption. The Government of India will also send to the Indian Embassy or High Commission in the country of the prospective adoptive parents from time to time the names, addresses and other particulars of such prospective adoptive parents together with particulal'S of the children taken by them and requesting the Embassy or High Commission to maintain an unobtrusive watch over the welfare and progress of such children in order to safeguard against any possible mal-treatment, exploitation or use for ulterior purposes and to immediately report any instance of mal-treatment, negligence or exploitation to the Government of India for suitable action.

We may add even at the cost of repeatition that the biological parents of a child taken in adoption should not under any circumstances be able to know who are the adoptive parents of the child nor should they have any access to the home study report or the child study report or the other papers and proceedings in the application for guardianship of the child. The foreign parents who have taken a child in adoption would normally have the child study report with them before they select the child for adoption and in case they do not have the child study report, the same should be supplied to them by the rec0gnised social or child welfare agency processing the application for guardianship and from the child study report, they would be able to gather information as to who are the biological parents of the child, if the biological parents are known. There can be no objection in furnishing to the foreign adoptive parents particulars in regard to the biological parents of the child taken in adoption, but it should be made clear that it would be entirly at the discretion of the foreign adoptive parents whether and if so when, to inform the child about its biological parents. Once a child is taken in adoption by a foreigner and the child grows up in the surroundings of the country of adoption and becomes a part of the society of that country, it may not be desirable to give information to the child abcut its biological parents whilst it is young, as that might have the effect of exciting his curiosity to meet its biological parents resulting in unsettling effect on its mind. But if after attaining the age of maturity, the child w, ants to know about its biological parents, there may not be any serious objection to the giving of such information to the child because after the child attains maturity, it is not likely to be easily affected by such information and in such a

--\__

L.K. PANDEY v. UNION <Bhagwati, J.)

case,. the foreign adoptive parents may, in exercise of their discre

tion, furnish such information to the child if they so think fit.

The•e are the principles and norms which must be observed and the procedure which must be followed in giving a child in adoption to foreign parents. If these principles and norms are observed and this procedure is followed, we have no doubt that the abuses to which inter-country adoptions, if allowed without any safeguards, may lend themselves would be considerably reduced, if not eliminated and the welfare of the child would be protected and it would be able to find a new home where it can grow in an atmosphere of warmth and affection of family life with full opportunities for physical intellectual and spiritual development. We may point out that the adoption of children by foreign parents need not wait until social or child welfare agencies are recognised by the Government as directed in this order, but pending recognition of social or child welfare agencies for the purpose ' of inter-country adoptions, which interregnum, we hope; will not last for a period of more than two months, any social or child welfare agency. having the care and custody of a child may b.e permitted to process an application of a foreigner, but barring this departure the rest of the procedure laid down by us shall be followed wholly and the principles and norms enunciated by us in this Judgment shall be observed in giving a child in inter-country adoption.

The writ pettition shall stand disposed of in these terms.

Copies of this 'order shall be sent immediately to the Ministry of Social Welfare of the Government of India and the Ministry of Social Welfare of each of the State Governments as also to all the High Courts in the country and to the Indian Council of Social Welfare and the Indian Council of Child Welfare. We would direct F that copies of this Order shall also be supplied to the Embassies and Diplomatic Missions of Norway, Sweden, France, Federal Republic of Germany and the United States of America and the High Commissions of Canada and Australia for their informations si, nce the statistics show that these are the countries where Indian children are taken in adoption.

S.R.

SUPRBMB COURT REPORTS

ANNEXURE-'A'

1. Source of Referral.

~· Nuber of single and joint interviews.

3. Personality of husband and wife.

[1984} 2 S.C.R.

4. Health details such as clinical tests, heart condition, past illnesses etc. (medical certificates required, sterility certificate required, if applicable), I

5. Social status and family background.

6. Nature and Adjustment with occupation. ·

7. Relationship with community.

8. Description of home.

9. Accommodation for the child.

JO. Sch<>oling facilities.'

11. Amenities in the home.

12. Standard of living as it appears in the home.

13. Type of neighbourhood.

14. Current relationship between husband and wife.

15. (a) Current relationship between parents and children (if any children).

(b) Development of already adopted children (if any) and their acceptance of the child to be adopted.

16. Current relatinship between the couple and the members of each other's families,

. (

L.K. PANDEY v. UNION <Bhagwati, J.)

17, If the wife is working; will she be able to give up the job?

18. If she. cannot leave the job, what arrangements will she make to look after the child ?

19. Is adoption considered because of sterility of one of the

maritial partners ?

20. If not, can they eventually have children of their own ?

21. If a child is born to them, how will they treat the adopted child?

22. If the couple already has children how wiJI these children react to an adopted child ?

23. Important social and psychological experiences which

. have had a bearing on their desire. to adopt a child.

24. Reasons for wanting to adopt an Indian child .

25. Attitude of grand-parents'. and relatives towards the

adoption.

26. Attitude of relatives, friends, community and neighbour- E hood towards adoption of an Indian child.

27. Anticipated plans for the adopted child.

28. Can the child be adqpted according to the adoptio~ law in the adoptive parents country? Have they obtained the necessary permission to adopt ? (Statement of permission required.)

29. Do the adoptive parents know any one who adopted a

child from their own country or ariother country ? Who

are they ? From where did they fail. to get a child from G that source ?

30. Did the couple apply for a child from any other source ?

If yes, which source ?

 31. What type of child is the couple interested in ? (sex, age, and for what reasons.) ff

. 852

[!984] 2 S.C R •

32. Worker's recommendation concerning the family and the ).

type of child whkh would best fit into this home. ""'+.

33. Name and address of the agency conducting the home B study. Name of social worker, qualification of social worker.

34. Name of agency responsible for post placement,. super- • c vision and follow up.

Y--" ;;

LAKSHMI KANT PANDEY

UNION OF )NDIA

P. N. BHAGWATI

R. s. PATHAK

Guardian and Wards Act

Supreme Court

Government of India

Indian Council of Child Welfare

Indian Council of Social Welfare

Guardians and Wards Act, 1890

High Courts of Bombay, Delhi and Gujarat

India

Ministry of External Affairs or Justice or Social Welfare

Ministry of Social Welfare, Government of India

Government of IAdia

Government of the State

Indian Council for Child Welfare

Government of Jndia

Section 11

Guardians and Wards Act, 1890

Indian Council of Child welfare

Indian Council for Social Welfare

Ministry of Social Wei

Ministry of Social Welfare

Govt. of India

article 32

Constitution of India

A. Subhashini

FOR THE RESPONDENTS :

Miss A. Subhashini for Union of India and Ministry of Social Welfare.

Kamini Jaiswal

Miss Kamini Jaiswal for, Indian Council of Social Welfare.

J.B. Dadachanji & Co.

J.B. Dadachanji & Co. for Indian Council of Child Welfare and Swedish Embassy.

N. M. Ghatate

P.H.' Parekh

P.K. Chakeravorty

(1984] 2 S.C.R.

P.K. Chakeravorty for Legal Aid Service, West Bengal.

Manik Karanjawa

Urmila Kapur

Kai/ash Vasdev

Kai/ash Vasdev for Missionary of Charity, Calcutta.

G.M. Coelho

G.M. Coelho Bar at Law for Enfant's du Mande (France)

Miss Rani Jethama/ani for Kuanyin Charitable Trust.

Rani Jethama

B.M. Bageria

B.M. Bageria for Terre Des Hommes (India) Society.

Sukumar Ghose

Sukumar Ghose for Mission of Hope (India) Society, Calcutta.

S.K. Mehta

Parijot Sinha

Parijot Sinha for society for International Child Welfare.

BHAGWATI

The Judgment of the Court was delivered by

BHAGWATI, J. This writ petition has been.

Lax mi Kant Pandey

Union of India

Indian Council of Social Welfare

30th September, 1982

12th October, 1982

Barnen Framfoer Allt Adoptioner

Children's Villages of India

Urmila Kapoor

S.O.S. Children's Villages of India

Barnen Framfoer Allt Adoptioner

Indian Council oi'

Child Welfare

16th December, 1980

Central Government

Central Governmentthought

section 24

clause 24

clause 17

Clause 21

Clause 8

Bhagwati

9th D November, 1982

9th November, 1982

27th November, 1982

State of West Bengal

1st October,

1982

SOS Children's Villages of India

Bhavishya International Union

Milton

The great poet Milton , put it admirably when he said : "Child _shows the man a~ F morning shows the .day" and the Study .

Article 15

Article 24

Article 39

National Children's Board

United Nations

20th November, 1959

iJhagwati

Lit, p ANDBY v. UNION (iJhagwati, J.) ill~

standing.

Hindu Adoption and Maintenance Act, 1956

UPREME COURT REPORTS [1984]

The Adoption of Children Bill 1972 sought to provide for a uniform law of adoption applicable to all communities includ-

A f

F '''

: UPREME COURT REPORTS [1984] !

Paul Harrison

U.N.

Bombay

Brighton

U.K.

4th September, 1982

clause 3

B. Sennapati

The Government of India also in the affidavit filed on its behalf by Miss B. Sennapati Programme Officer in .

u.

K.

Economic and Social Council

Geneva

Art. 2

International Council on Social Welfare in Bombay

Nationality

Nationality;

When the legal adoption is concluded, the child shall be granted app<opriate citizenship.

Wards Act 1890

Section 4

section 4

the Code of Civil Procedure

Section 7

section 8

Section 17

section 26

These are the relevant provisions of the Guardians and Wards Act 1890

Maharashtra

High Court of . . Bombay

Chapter XX of the Rules

High-Court of Bombay (Original Side) 1957

High Court of Delhi

Guardians and Wards Act

Section 11

Guardians and Wards Act, 1890

Indian Council of child Welfare

High Court of Gujarat

High Courts of Bombay and Delhi

Rasiklal Chaganlal Mehta

Couri

Indian Counc.l of Social Welfare

If the Indian Counc.l of Social Welfare so desires it should be made a party to the proceedings.

Indian Councilof Social

Wlfare

Indian Council for Child Welfare

Delhi

Gujarat

Indian Council of Social Welfre

SUPRBMB COURT

Guardians and Wards Act

Swedish Embassy

Ulf Waltre

Gevernment of India

Tndian Council for Child Welfare

23rd August, 1980

Government of Kerela

Government of a State

government of India

Government of the States

Central Adoption Resource Agency

Central Adoption Resource Agency

SUPREME COURT REPORTS (1984] 2 s.c.tl

Lentin

Bombay High Court

22nd July, 1982

SUPREME COURT REPoRts [1984] 2 s.c.tt

iJhagwali

Section ll of the Guardians and Wards Act, 1890

clause 24

Ministry of Social Welfare of the Government of the State

Ministry of Social Welfare of the Government of India

Norway

Sweden

France

Federal Republic of Germany

United States of America

High Commissions of Canada and Australia