The Child in Need of Care and Protection

Proviso. The child shall be produced before the Committee without any loss of time but within twenty-four hours, excluding the time necessary for the journey.

Sub-section (2). The State Government may make rules for the manner of submitting the report and for sending and entrusting the child to a children's home, fit facility or fit person during the period of the inquiry.

Sections 32 to 34: mandatory reporting

Section 32(1). Any individual, or a police officer, or any functionary of any organisation, or a nursing home or hospital or maternity home, who finds and takes charge, or is handed over, a child who appears or claims to be abandoned or lost, or a child who appears or claims to be an orphan without family support, shall within twenty-four hours, excluding the time necessary for the journey:

• give information to the Childline Services, or the nearest police station, or a Child Welfare Committee, or the District Child Protection Unit; or
• hand over the child to a child care institution registered under this Act.

Sub-section (2), as substituted in 2021. The information shall be uploaded by the Committee, the District Child Protection Unit or the child care institution, on a portal as may be specified by the Central Government.

Section 33, the offence. If the information required by section 32 is not given within the period specified, such act shall be regarded as an offence.

Section 34, the penalty. Any person who has committed an offence under section 33 shall be liable to imprisonment up to six months, or a fine of ten thousand rupees, or both.

Note how wide section 32(1) is. It begins with "any individual", so it is not confined to officials, and it is triggered by a child who merely appears to be abandoned, lost or an orphan. It is discharged either by informing one of four bodies or by handing the child to a registered child care institution.

Section 35: surrender

Sub-section (1). A parent or guardian who, for physical, emotional and social factors beyond their control, wishes to surrender a child, shall produce the child before the Committee.

Sub-section (2). If, after the prescribed process of inquiry and counselling, the Committee is satisfied, a surrender deed shall be executed by the parent or guardian before the Committee.

Sub-section (3), the reconsideration period. The parents or guardian shall be given two months' time to reconsider their decision; and in the intervening period the Committee shall either allow, after due inquiry, the child to be with the parents or guardian under supervision, or place the child in a Specialised Adoption Agency if he is below six years of age, or a children's home if he is above six.

Section 36: the inquiry

Sub-section (1). On production of a child, or receipt of a report under section 31, the Committee shall hold an inquiry in the prescribed manner, and may, on its own or on a report, pass an order sending the child to a children's home, a fit facility or a fit person, and for speedy social investigation by a social worker, Child Welfare Officer or Child Welfare Police Officer.

Proviso: all children below six years of age who are orphan, surrendered or appear to be abandoned shall be placed in a Specialised Adoption Agency, where available.

Sub-section (2), the clocks. The social investigation shall be completed within fifteen days, so as to enable the Committee to pass a final order within four months of the first production of the child. Proviso: for orphan, abandoned or surrendered children the time for completing the inquiry is that specified in section 38.

Sub-section (3), continued need. After the inquiry, if the Committee is of opinion that the child has no family or ostensible support, or is in continued need of care and protection, it may send him to a Specialised Adoption Agency if below six, or a children's home, or a fit facility or person, or a foster family, till suitable means of rehabilitation are found, or till the child attains the age of eighteen years. Proviso: the situation of a child so placed shall be reviewed by the Committee as prescribed.

Sub-section (4). The Committee shall submit a quarterly report on the nature of disposal of cases and pendency to the District Magistrate, for review of pendency.

Sub-section (5), and this is unusually strong. After that review the District Magistrate shall direct the Committee to take necessary remedial measures and send a report of such reviews to the State Government, which may cause the constitution of additional Committees. Proviso: if the pendency continues to be unaddressed even after three months of receiving such directions, the State Government shall terminate the said Committee and constitute a new one.

Sub-section (6). In anticipation of such a termination, the State Government shall maintain a standing panel of eligible persons to be appointed as members.

Sub-section (7). In case of delay in constituting a new Committee, the Child Welfare Committee of a nearby district shall assume responsibility in the intervening period.

Sub-sections (4) to (7) are easy to overlook and are the sharpest accountability provision in the Act: a Committee that lets its cases pile up can be dissolved.

Section 37: orders the Committee may pass

Sub-section (1). On being satisfied through the inquiry that the child before it is a child in need of care and protection, the Committee may, on consideration of the Social Investigation Report and taking into account the child's wishes where the child is sufficiently mature to take a view, pass one or more of the following:

(a) declaration that the child is in need of care and protection; (b) restoration of the child to parents, guardian or family, with or without the supervision of a Child Welfare Officer or designated social worker; (c) placement in a Children's Home, fit facility or Specialised Adoption Agency for adoption, for long term or temporary care, keeping in mind the capacity of the institution, either after concluding that the family cannot be traced or that, even if traced, restoration is not in the best interest of the child; (d) placement with a fit person for long term or temporary care; (e) foster care orders under section 44; (f) sponsorship orders under section 45; (g) directions to the persons, institutions or facilities in whose care the child is placed, regarding care, protection and rehabilitation, including immediate shelter and services such as medical attention, psychiatric and psychological support including need-based counselling, occupational therapy or behaviour modification therapy, skill training, legal aid, educational services and other developmental activities, and follow up and co-ordination with the District Child Protection Unit or State Government and other agencies; (h) declaration that the child is legally free for adoption under section 38.

Sub-section (2). The Committee may also pass orders for (i) the declaration of fit persons for foster care; (ii) after care support under section 46; or (iii) any other prescribed order.

The order of clauses (b) to (e) repeats the Act's hierarchy: the family first, then a fit person, then foster care, and an institution where the family cannot be traced or restoration is not in the child's interest.

Section 38: legally free for adoption

Sub-section (1), orphan and abandoned children. The Committee shall make all efforts for tracing the parents or guardians; and on completing that inquiry, if it is established that the child is either an orphan having no one to take care, or abandoned, the Committee shall declare the child legally free for adoption.

First proviso, the clock. Such a declaration shall be made within two months from the date of production of the child, for children up to two years of age, and within four months for children above two years of age.

Second proviso. Notwithstanding anything in any other law, no first information report shall be registered against any biological parent in the process of inquiry relating to an abandoned or surrendered child under this Act.

Sub-section (2), surrendered children. The institution where the child has been placed shall bring the case before the Committee immediately on completion of the period specified in section 35, that is the two months for reconsideration, for the declaration.

Sub-section (3). Notwithstanding anything in any other law, a child of mentally retarded parents, or an unwanted child of a victim of sexual assault, may be declared free for adoption by the Committee, following the procedure under the Act.

Sub-section (4). The decision to declare an orphan, abandoned or surrendered child legally free for adoption shall be taken by at least three members of the Committee.

Sub-section (5). The Committee shall inform the District Magistrate, the State Agency and the Authority, every month, of the number of children declared legally free for adoption and the number of cases pending.

A worked example

A newborn is left at a hospital.

Who must act, and when? The nurse, doctor or management of the nursing home, hospital or maternity home falls within section 32(1), as does any individual. Within twenty-four hours they must inform Childline Services, the nearest police station, a Child Welfare Committee or the District Child Protection Unit, or hand the child to a registered child care institution.

They keep the baby quietly for a week instead. That is an offence under section 33, punishable under section 34 with imprisonment up to six months, or a fine of ten thousand rupees, or both.

The child is produced before the Committee. By any of the seven classes in section 31(1), within twenty-four hours excluding journey time.

Where does he go pending the inquiry? Being below six, and appearing abandoned, he shall be placed in a Specialised Adoption Agency where available, proviso to section 36(1).

How long does the inquiry take? The social investigation within fifteen days; ordinarily a final order within four months of first production; but for an abandoned child the time is that in section 38, so, being under two years old, the declaration must be made within two months of production.

The Committee traces the mother. It must make all efforts to trace the parents, section 38(1); and no first information report may be registered against her in the course of that inquiry, second proviso.

She wishes to surrender the child. She must produce the child before the Committee, section 35(1); after inquiry and counselling a surrender deed is executed before the Committee, sub-section (2); and she has two months to reconsider, during which the child stays in a Specialised Adoption Agency, being under six, sub-section (3).

She does not change her mind. The institution brings the case before the Committee immediately on the expiry of the two months, section 38(2), and the Committee may declare the child legally free for adoption, by a decision of at least three members, sub-section (4).

What is reported, and to whom? The Committee informs the District Magistrate, the State Agency and the Authority every month of the numbers declared free and pending, sub-section (5); and it submits a quarterly report on disposal and pendency to the District Magistrate, section 36(4).

The Committee's pendency grows. The District Magistrate directs remedial measures and reports to the State Government, which may constitute additional Committees; and if the pendency is still unaddressed three months after those directions, the State Government shall terminate the Committee and constitute a new one, from the standing panel it must maintain, section 36(5) and (6).

Change the facts: a child of nine, whose family is traced and is willing. The Committee may order restoration to the parents, with or without supervision, section 37(1)(b), taking into account his own wishes if he is sufficiently mature.

Distinctions

What this does NOT mean

Producing a child is not confined to officials. Section 31 includes a social worker or public spirited citizen, a nurse or doctor, and the child himself.

Reporting is not optional or informal. Failure is an offence with a defined penalty.

A surrender is not final when the deed is signed. The parents have two months to reconsider, and the Committee must have made all efforts to keep the family together, section 30(ix).

The inquiry does not expose the mother to prosecution. No first information report shall be registered against any biological parent in the inquiry relating to an abandoned or surrendered child.

And an institution is not the first answer. Section 37 lists restoration to the family before placement, and clause (c) applies only where the family cannot be traced, or where restoration is not in the child's best interest.

Quick revision

• 31: seven classes may produce the child, including a public spirited citizen, a nurse or doctor, and the child himself; within twenty-four hours excluding journey time.
• 32 to 34: any individual finding, taking charge of, or handed a child who appears or claims to be abandoned, lost, or an orphan without family support must, within twenty-four hours, inform Childline, the police station, the Committee or the District Child Protection Unit, or hand the child to a registered institution; the information is uploaded on the Central Government's portal; failure is an offence, punishable with six months, or ten thousand rupees, or both.
• 35: a parent surrendering for factors beyond their control produces the child; a surrender deed after inquiry and counselling; two months to reconsider, the child meanwhile with the parents under supervision, or in a Specialised Adoption Agency if under six or a children's home if over.
• 36: inquiry, with social investigation in fifteen days and a final order within four months; under-sixes to a Specialised Adoption Agency; continued need means placement till rehabilitation or eighteen, with review; a quarterly report to the District Magistrate, remedial directions, additional Committees, and termination if pendency is unaddressed after three months, with a standing panel and a nearby district's Committee in the interval.
• 37: orders of declaration, restoration, placement in an institution or Specialised Adoption Agency, a fit person, foster care, sponsorship, directions on care and services, and declaration legally free for adoption; plus fit persons for foster care and after care support.
• 38: all efforts to trace parents; declaration within two months up to age two, four months above; no FIR against a biological parent; a surrendered child brought back immediately after the two months; children of mentally retarded parents and unwanted children of victims of sexual assault may be declared free; the decision needs three members; monthly information to the District Magistrate, State Agency and Authority.

Test yourself

1. Who may produce a child in need of care and protection before the Committee? Any of the seven classes in section 31(1): a police officer, special juvenile police unit, Child Welfare Police Officer, officer of the District Child Protection Unit or labour inspector; any public servant; Childline Services or a recognised organisation; a Child Welfare Officer or probation officer; any social worker or public spirited citizen; the child himself; or any nurse, doctor or the management of a nursing home, hospital or maternity home.

2. What is the duty under section 32? Anybody who finds and takes charge of, or is handed over, a child who appears or claims to be abandoned or lost, or an orphan without family support, must within twenty-four hours excluding journey time inform Childline Services, the nearest police station, a Child Welfare Committee or the District Child Protection Unit, or hand the child to a registered child care institution.

3. What is the penalty for not reporting? Imprisonment up to six months, or a fine of ten thousand rupees, or both, section 34.

4. How long do surrendering parents have to reconsider? Two months, during which the Committee may allow the child to remain with them under supervision, or place him in a Specialised Adoption Agency if below six years of age or a children's home if above, section 35(3).

5. Within what time must a child be declared legally free for adoption? Within two months from the date of production for a child up to two years of age, and within four months for a child above two, first proviso to section 38(1).

6. Can the mother of an abandoned child be prosecuted? Not in the course of the inquiry. The second proviso to section 38(1) forbids the registration of any first information report against a biological parent in the process of inquiry relating to an abandoned or surrendered child.

7. What happens if a Committee lets its cases pile up? The District Magistrate, on the quarterly report, directs remedial measures and reports to the State Government, which may constitute additional Committees; and if the pendency remains unaddressed three months after those directions, the State Government shall terminate the Committee and constitute a new one, section 36(5).