The Adoption Agencies and the Authority

Sub-section (2). The State Agency shall furnish the name, address and contact details of the Specialised Adoption Agencies, with copies of the certificate or letter of recognition or renewal, to the Authority, as soon as recognition or renewal is granted.

Sub-section (3). The State Government shall get every Specialised Adoption Agency inspected at least once a year and take necessary remedial measures if required.

Sub-section (4), the default. Where a Specialised Adoption Agency is in default in taking the steps required of it, namely:

• getting an orphan, abandoned or surrendered child declared legally free for adoption from the Committee; or
• completing the home study report of the prospective adoptive parents; or
• obtaining the adoption order from the District Magistrate within the stipulated time,

it shall be punishable with a fine which may extend up to fifty thousand rupees; and in case of repeated default the recognition shall be withdrawn by the State Government.

Section 66: institutions that are not adoption agencies

Sub-section (1). All institutions registered under this Act which have not been recognised as Specialised Adoption Agencies shall also ensure that all orphan, abandoned or surrendered children under their care are reported, produced and declared legally free for adoption by the Committee under section 38.

Sub-section (2). They shall develop formal linkages with a nearby Specialised Adoption Agency and furnish details of the children declared legally free for adoption to that Agency, with all relevant records, for their placement in adoption.

Sub-section (3). Contravention of either sub-section makes the institution liable to a fine of fifty thousand rupees for each instance, imposed by the registering authority, and may also attract de-recognition in the event of persistent flouting.

Section 66 exists because a child who is adoptable but lives in an ordinary Children's Home would otherwise never reach the adoption system at all. The section makes every registered institution part of that system.

Sections 67 and 68: the two agencies above

Section 67, the State Adoption Resource Agency.

Sub-section (1). The State Government shall set up a State Adoption Resource Agency for dealing with adoptions and related matters in the State, under the guidance of the Authority.

Sub-section (2). A State Agency already existing shall be deemed to be set up under this Act.

Section 68, the Central Adoption Resource Authority. The Central Adoption Resource Agency existing before the commencement of this Act shall be deemed to have been constituted as the Central Adoption Resource Authority under this Act, to perform the following functions:

(a) to promote in-country adoptions and to facilitate inter-State adoptions in co-ordination with the State Agency; (b) to regulate inter-country adoptions; (c) to frame regulations on adoption and related matters from time to time as may be necessary; (d) to carry out the functions of the Central Authority under the Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption; (e) any other prescribed function.

Note the three different verbs in (a) and (b), because they are the examinable distinction. In-country adoption is promoted; inter-State adoption is facilitated; inter-country adoption is regulated.

Section 69: the Steering Committee

Sub-section (1), the members.

(a) Secretary, Ministry of Women and Child Development, Government of India, who shall be the Chairperson, ex officio; (b) Joint Secretary of that Ministry dealing with the Authority, ex officio; (c) Joint Secretary of that Ministry dealing with Finance, ex officio; (d) one State Adoption Resource Agency and two Specialised Adoption Agencies; (e) one adoptive parent and one adoptee; (f) one advocate or a professor having at least ten years of experience in family law; (g) Member-Secretary, who shall also be the Chief Executive Officer of the organisation.

Sub-section (2). The criteria for selection or nomination of the members in clauses (d) to (f), their tenure and the terms and conditions of appointment are as prescribed.

Sub-section (3), functions.

(a) to oversee the functioning of the Authority and review its working from time to time, so that it operates in the most effective manner; (b) to approve the annual budget, annual accounts and audit reports, and the action plan and annual report; (c) to adopt the recruitment rules, service rules and financial rules, and other regulations for the exercise of administrative and programmatic powers, with the prior approval of the Central Government; (d) any other function vested by the Central Government.

Sub-section (4). The Steering Committee shall meet once in a month.

Sub-section (5). The Authority functions from its headquarters and through regional offices set up as its functional necessity requires.

Clause (e) is the one to remember: the Steering Committee of the national adoption regulator includes one adoptive parent and one adoptee.

Section 70: powers of the Authority

Sub-section (1).

(a) to issue instructions to any Specialised Adoption Agency, Children's Home or child care institution housing an orphan, abandoned or surrendered child, any State Agency or any authorised foreign adoption agency; and such directions shall be complied with; (b) recommending to the concerned Government or Authority to take appropriate action against any official, functionary or institution under its administrative control, in case of persistent non-compliance; (c) forwarding any case of persistent non-compliance to a Magistrate having jurisdiction, who shall proceed to hear it as if the case had been forwarded to him under section 346 of the Code of Criminal Procedure, 1973; (d) any other power vested by the Central Government.

Sub-section (2), the tie-breaker. In case of any difference of opinion in an adoption case, including the eligibility of prospective adoptive parents or of a child to be adopted, the decision of the Authority shall prevail.

Section 346 of the old Code was the section on a Magistrate who cannot pass a sentence sufficiently severe, that is, the submission of proceedings to a superior Magistrate; the corresponding provision in the Bharatiya Nagarik Suraksha Sanhita is section 364, which this book covers in Module III.

Sections 71 to 73: report, grants and accounts

Section 71. The Authority shall submit an annual report to the Central Government, which shall cause it to be laid before each House of Parliament.

Section 72. The Central Government shall, after due appropriation made by Parliament by law, pay to the Authority by way of grants such sums of money as required.

Section 73, accounts and audit. The accounts of the Authority shall be audited by the Comptroller and Auditor-General at such intervals as he specifies, and the expenditure of the audit is payable by the Authority to him. The Comptroller and Auditor-General and any person appointed by him shall have the same rights and privileges as in the audit of Government accounts, and in particular the right to demand the production of books, accounts, connected vouchers and other documents and papers, and to inspect any of the offices of the Authority. The certified accounts with the audit report shall be forwarded annually to the Central Government, which shall cause the audit report to be laid before each House of Parliament.

A worked example

A district Children's Home has four orphan children in its care. It is registered under the Act but is not a Specialised Adoption Agency.

What must it do? Section 66(1): ensure that all orphan, abandoned or surrendered children under its care are reported, produced and declared legally free for adoption by the Committee under section 38; and section 66(2): develop formal linkages with a nearby Specialised Adoption Agency and furnish the details and records of children declared free to it.

It does neither. It is liable to a fine of fifty thousand rupees for each instance, imposed by the registering authority, and to de-recognition on persistent flouting, sub-section (3).

The Specialised Adoption Agency takes the children. It is recognised by the State Government, one or more in each district, for the rehabilitation of orphan, abandoned or surrendered children through adoption and non-institutional care, section 65(1); and it is inspected at least once a year, sub-section (3).

It sits on a file for months. If it is in default in getting a child declared legally free, in completing the home study report, or in obtaining the adoption order within the stipulated time, it is punishable with up to fifty thousand rupees, and on repeated default the State Government withdraws its recognition, sub-section (4).

A family abroad applies. That is inter-country adoption, which the Authority regulates, section 68(b), and which runs through authorised foreign adoption agencies the Authority may instruct, section 70(1)(a).

A dispute arises about whether the parents are eligible. The decision of the Authority shall prevail, section 70(2).

An institution simply ignores the Authority's instructions. The Authority may recommend action to the Government concerned, and may forward the case to a Magistrate having jurisdiction, who hears it as if it had come to him under section 346 of the Code, section 70(1)(b) and (c).

Who watches the Authority? Its Steering Committee, chaired by the Secretary, Ministry of Women and Child Development, meeting once a month, which oversees its functioning and approves its budget, accounts, audit reports, action plan and annual report, section 69. Its annual report goes to the Central Government and is laid before each House of Parliament, section 71; and its accounts are audited by the Comptroller and Auditor-General, whose report is also laid before Parliament, section 73.

Distinctions

What this does NOT mean

A Specialised Adoption Agency is not merely a home. It is recognised by the State Government specifically for adoption and non-institutional care, and is inspected annually.

An institution that is not an adoption agency is not outside the adoption system. Section 66 obliges it to get its children declared legally free and to link with an agency.

The Authority does not conduct adoptions. It promotes, facilitates, regulates and frames regulations, and instructs those who do.

Its instructions are not advisory. Section 70(1)(a) says such directions shall be complied with, and non-compliance may be forwarded to a Magistrate.

And the Authority is not unaccountable. Its Steering Committee meets monthly, its annual report is laid before each House of Parliament, and its accounts are audited by the Comptroller and Auditor-General.

Quick revision

• 65: the State Government recognises one or more Specialised Adoption Agencies in each district; the State Agency reports them to the Authority; annual inspection; default in the declaration, home study report or order costs up to fifty thousand rupees, and repeated default costs recognition.
• 66: other registered institutions must get their orphan, abandoned and surrendered children declared legally free and must link formally with a nearby Agency; breach costs fifty thousand rupees per instance and may bring de-recognition.
• 67 and 68: a State Adoption Resource Agency in every State under the Authority's guidance; the Central Adoption Resource Authority to promote in-country, facilitate inter-State, regulate inter-country adoption, frame regulations, and act as the Hague Convention Central Authority.
• 69: a Steering Committee chaired by the Secretary, Ministry of Women and Child Development, with two Joint Secretaries, one State Agency and two Specialised Adoption Agencies, one adoptive parent and one adoptee, an advocate or professor with ten years in family law, and the Member-Secretary and Chief Executive Officer; it oversees and approves, and meets once a month.
• 70: power to issue binding instructions, to recommend action, and to forward persistent non-compliance to a Magistrate under s.346 of the Code; on any difference of opinion in an adoption case, the Authority's decision prevails.
• 71 to 73: an annual report laid before each House of Parliament; grants after appropriation by Parliament; audit by the Comptroller and Auditor-General, with the audit report also laid before Parliament.

Test yourself

1. Who recognises a Specialised Adoption Agency, and for what? The State Government, one or more institutions or organisations in each district, for the rehabilitation of orphan, abandoned or surrendered children through adoption and non-institutional care, section 65(1).

2. What happens if such an agency delays? Where it is in default in getting a child declared legally free for adoption, in completing the home study report, or in obtaining the adoption order within the stipulated time, it is punishable with a fine which may extend to fifty thousand rupees, and on repeated default its recognition is withdrawn by the State Government, section 65(4).

3. What duty lies on an institution that is not an adoption agency? To ensure that all orphan, abandoned or surrendered children under its care are reported, produced and declared legally free for adoption by the Committee under section 38, and to develop formal linkages with a nearby Specialised Adoption Agency and furnish the details and records, section 66.

4. State the functions of the Central Adoption Resource Authority. To promote in-country adoptions and facilitate inter-State adoptions in co-ordination with the State Agency; to regulate inter-country adoptions; to frame regulations on adoption and related matters; to carry out the functions of the Central Authority under the Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption; and any other prescribed function, section 68.

5. Who chairs the Steering Committee, and how often does it meet? The Secretary, Ministry of Women and Child Development, Government of India, ex officio; and it meets once in a month, section 69.

6. What happens where there is a difference of opinion in an adoption case? The decision of the Authority prevails, including on the eligibility of prospective adoptive parents or of a child to be adopted, section 70(2).

7. How is the Authority held to account? Its Steering Committee oversees its functioning and approves its budget, accounts and reports; its annual report is submitted to the Central Government and laid before each House of Parliament; and its accounts are audited by the Comptroller and Auditor-General, whose report is also laid before Parliament, sections 69, 71 and 73.