The Child in Need of Care and Protection

At risk from a condition. Mentally ill, mentally or physically challenged, or suffering from a terminal or incurable disease, with no one to support or with parents unfit to care, clause (iv).

At risk from another person's purpose. Abused, tortured or exploited for sexual abuse or illegal acts, or likely to be, clause (viii); vulnerable and inducted or likely to be inducted into drug abuse or trafficking, clause (ix); abused or likely to be abused for UNCONSCIONABLE GAINS, clause (x).

At risk from an event. A victim of or affected by armed conflict, civil unrest or natural calamity, clause (xi).

And at risk of marriage. At imminent risk of marriage before attaining the age of marriage, where the parents, family, guardian or any other person is likely to be responsible for solemnising it, clause (xii). That is the link with [Child Marriage] and it is the provision that lets a Committee act BEFORE the marriage.

Two things about the definition. Several clauses are prospective, using "is likely to be", so the Committee may act on risk and not only on harm. And nothing in it requires an offence to have been committed by anybody.

The Child Welfare Committee

Section 27. The State Government shall constitute for every district one or more Child Welfare Committees, and shall ensure induction training and sensitisation of all members within two months of the notification. The Committee consists of a CHAIRPERSON AND FOUR OTHER MEMBERS as the State thinks fit to appoint, of whom AT LEAST ONE SHALL BE A WOMAN and another an expert on matters concerning children. Members must have been actively involved in health, education or welfare activities concerning children for at least seven years, or be a practising professional with a degree in child psychology, psychiatry, law or social work. The term is three years, and the Act disqualifies a person with a record of violation of human rights or child rights, conviction for a moral turpitude offence, removal from government service, or a record of abuse or immoral conduct.

Section 28. The Committee meets at least twenty days a month, in a manner and at a place that is child-friendly and is not a court; a visit to a residential facility by a member is treated as a sitting; and a child is not to be denied a hearing by reason of the absence of a member, the decision of a majority prevailing and, in equality, the opinion of the Chairperson.

Section 29, the powers. Authority to dispose of cases for the care, protection, treatment, development and rehabilitation of children in need of care and protection and to provide for their basic needs and protection; and, where a Committee is constituted for an area, EXCLUSIVE power over all proceedings under the Act relating to such children.

Section 30, the functions. Sixteen of them, including taking cognizance of and receiving children produced before it; conducting inquiry on all issues affecting their safety and well-being; directing Child Welfare Officers, probation officers or the District Child Protection Unit to conduct social investigation; conducting at least two INSPECTION VISITS PER MONTH to residential facilities and recommending action; selecting registered institutions for placement; conducting the inquiry for declaring a child legally free for adoption; taking suo motu cognizance of cases and reaching out to children who need care; taking action for the rehabilitation of a sexually abused child reported as a child in need of care and protection; dealing with cases referred by the Board under section 17(2); coordinating with the police, labour department and other agencies; and accessing the appropriate authority for a child in a mental health institution.

Note the two-visits-a-month duty. Section 30(iv) is what makes a Committee an inspectorate as well as an adjudicator, and it is the provision most often not complied with.

Getting the child to the Committee

Section 31, production. A child may be produced by a police officer, Special Juvenile Police Unit, Child Welfare Police Officer, District Child Protection Unit officer or LABOUR INSPECTOR; by any public servant; by Childline Services or a recognised agency or a registered voluntary or non-governmental organisation; by the Child Welfare Officer or probation officer; by any social worker or a public-spirited citizen; BY THE CHILD HIMSELF; or by a nurse, doctor or management of a nursing home, hospital or maternity home. The child is to be produced within twenty-four hours excluding journey time.

Section 32, mandatory reporting. Any individual, police officer, or functionary of an organisation, nursing home, hospital or maternity home who finds, takes charge of or is handed a child who appears or claims to be ABANDONED OR LOST, or an orphan without family support, shall 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.

Sections 33 and 34. Failure to give the information within that period IS AN OFFENCE, punishable with up to six months or a fine of ten thousand rupees or both.

Section 35, surrender. 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; after inquiry and counselling a SURRENDER DEED is executed before the Committee; and the parent or guardian has TWO MONTHS to reconsider, during which the Committee either allows the child to remain with them under supervision or places the child in a Specialised Adoption Agency or a children's home.

Section 36, the inquiry. On production or on a report, the Committee holds an inquiry and may send the child to a children's home, fit facility or fit person and order a speedy social investigation, which is to be completed within FIFTEEN DAYS; the inquiry is to be completed within four months, extendable by two for reasons recorded, and where it concerns a missing child it may be extended by the Committee. The proviso directs that all children below SIX who are orphan, surrendered or appear abandoned be placed in a Specialised Adoption Agency where available.

Section 37, the orders. On being satisfied that the child is a child in need of care and protection, the Committee may declare the child to be so and pass one or more orders: a declaration that the child is in need of care and protection; restoration to the parents, guardian or fit person after due inquiry; placement in a children's home, fit facility or Specialised Adoption Agency for the purpose of adoption; placement with a fit person for short or long-term care; foster care; sponsorship and support to keep the child in the family; a direction for a declaration that the child is legally free for adoption; and directions for medical or psychiatric treatment, education, vocational training or de-addiction, along with a follow-up.

Section 38, legally free for adoption. For an ORPHAN or ABANDONED child the Committee must make all efforts to trace the parents or guardians and, on completing the inquiry, declare the child legally free for adoption, within TWO MONTHS of production for a child up to two years of age and within FOUR MONTHS for a child above two. A SURRENDERED child is declared legally free after the two-month reconsideration period in section 35. No child of a mentally retarded parent, or an orphan or abandoned or surrendered child, shall be declared free without a certificate from the Committee, and the declaration for a child above five requires his consent to be taken, as section 61 also requires.

Rehabilitation, and the alternatives to an institution

Section 39. Rehabilitation and social reintegration are to be undertaken on the basis of an INDIVIDUAL CARE PLAN, PREFERABLY THROUGH FAMILY-BASED CARE, by restoration to the family or guardian with or without supervision, or sponsorship, or adoption, or foster care; and siblings are to be kept together unless it is not in their best interest.

Section 40, restoration. The restoration and protection of a child is the PRIME OBJECTIVE of any children's home, Specialised Adoption Agency or open shelter, and the Committee may restore a child to a parent, guardian, fit person or fit facility.

Section 43, open shelter. Community-based facilities for children in need of residential support on a SHORT-TERM basis, to protect them from abuse or to keep them away from a life on the streets, with a report of every child to the Committee.

Section 44, foster care. Placement by an order of the Committee in a family that is not the child's biological or adoptive family, or in an unrelated family recognised as suitable, for a short or extended period, including GROUP FOSTER CARE; the selection based on the family's ability, intent, capacity and prior experience; with inspection at least once a month and removal where the Committee is of the opinion that the child is not being looked after properly.

Section 45, sponsorship. Individual, group or community sponsorship for children whose mother is a widow, divorced or abandoned; whose children are orphans living with the extended family; or whose parents are victims of a life-threatening disease or are incapacitated.

Section 46, after care. A child leaving a child care institution on completing EIGHTEEN may be given financial support to facilitate reintegration into the mainstream of society.

The order of preference to state in an answer. Family, then family-like, then institution. Section 39's "preferably through family based care" and section 3's principle of INSTITUTIONALISATION AS A MEASURE OF LAST RESORT are the two provisions that say so.

The institutions and their oversight

Sections 41 and 42, registration. ALL institutions, whether run by a State Government or by a voluntary or non-governmental organisation, meant wholly or partly for housing children in need of care and protection or children in conflict with law, SHALL BE REGISTERED under the Act. Failure by the person in charge is punishable with up to one year or a fine of not less than ONE LAKH RUPEES or both, and every thirty days' delay in applying is a SEPARATE OFFENCE.

Section 50, children's homes. Established and maintained by the State Government in every district or group of districts, by itself or through voluntary or non-governmental organisations, for children in need of care and protection during the pendency of an inquiry and thereafter for care, treatment, education, training, development and rehabilitation.

Sections 51 and 52, fit facility and fit person. A facility recognised by the Board or Committee as fit to take temporary responsibility for a child for a specific purpose, with the recognition withdrawable; and a person willing and capable of receiving and taking responsibility for a child, recognised after inquiry.

Section 53. The services every registered institution must provide: intake and assessment, an individual care plan, mental health interventions, education, vocational training, recreation, legal aid, referral services, case management, birth registration, assistance for restoration and after care.

Section 54, inspection. The State Government shall appoint INSPECTION COMMITTEES for the State and for every district, which shall inspect all facilities housing children AT LEAST ONCE IN THREE MONTHS and submit reports, and where a facility is found not following prescribed standards, action shall be taken.

Section 55, evaluation. The Central Government or State Government may INDEPENDENTLY EVALUATE the functioning of the Board, the Committee, the special juvenile police units, the homes, the shelters and the Specialised Adoption Agencies at such period and through such persons or institutions as it may prescribe.

The offences against children, sections 74 to 89

These belong here because they are the criminal counterpart of the Committee's welfare jurisdiction: the Committee protects the child, and this Chapter punishes what was done.

Section 74. No disclosure of the identity of a child in conflict with law, a child in need of care and protection, or a child victim or witness, in any medium, and no publication of the child's picture; up to six months, or a fine up to two lakh rupees, or both.

Section 75, cruelty to a child. Whoever, having the actual charge of or control over a child, ASSAULTS, ABANDONS, ABUSES, EXPOSES OR WILFULLY NEGLECTS the child, or causes or procures the child to be so treated, in a manner likely to cause the child unnecessary MENTAL OR PHYSICAL suffering: up to three years, or a fine of one lakh rupees, or both, with higher punishment where the child is disabled and the offender is in charge, and up to ten years where the assault leads to death, incapacity or mental illness.

Section 76, begging. Employing or using a child for begging, or causing a child to beg: up to five years and a fine of one lakh rupees; and where the person AMPUTATES OR MAIMS the child for the purpose, rigorous imprisonment of not less than seven and up to ten years and a fine of five lakh rupees.

Section 77, intoxicants. Giving or causing to be given to a child any intoxicating liquor, narcotic drug, TOBACCO PRODUCT or psychotropic substance, except on the order of a qualified medical practitioner: rigorous imprisonment up to seven years and a fine up to one lakh rupees.

Section 78, using a child in the trade. Using a child for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance: rigorous imprisonment up to seven years and a fine up to one lakh rupees.

Section 79, exploitation of a child employee. Ostensibly engaging a child and keeping him IN BONDAGE for the purpose of employment, or WITHHOLDING HIS EARNINGS or using them for one's own purposes: rigorous imprisonment up to five years and a fine of one lakh rupees.

Section 80, adoption outside the procedure, and section 81, sale and procurement of children for any purpose, both worked in [Adoption].

Section 82, corporal punishment. A person in charge of or employed in a child care institution who subjects a child to corporal punishment WITH THE AIM OF DISCIPLINING the child: a fine of ten thousand rupees on a first conviction, and up to three months or fine or both subsequently, with liability to DISMISSAL from service and a duty on the management to report; and punishment for anyone who abets or fails to report.

Section 83, militant groups and other adults. A non-State, self-styled militant group or outfit declared as such by the Central Government that recruits or uses a child for any purpose: rigorous imprisonment up to seven years and a fine of five lakh rupees; and an adult or adult group that uses children for illegal activities, individually or as a gang, up to seven years and a fine of five lakh rupees.

Section 84, kidnapping and abduction. The provisions of the general criminal law on kidnapping and abduction apply mutatis mutandis to a child or minor under eighteen.

Section 85, disabled children. Whoever commits any offence in this Chapter on a child who is DISABLED, as certified by a medical practitioner, is liable to TWICE THE PENALTY provided for that offence.

Sections 86 to 89. The classification of offences by punishment and trial by the Children's Court; abetment; alternative punishment, the GREATER of this Act and any other applying; and an offence under this Chapter committed BY a child, which is dealt with under the Act itself.

A worked example

A hospital is handed a newborn by a woman who leaves. Separately, a labour inspector finds a girl of thirteen working in a house, and a school reports that a girl of fifteen is to be married next month.

The newborn. Section 32: the hospital must inform Childline, the police station, the Committee or the District Child Protection Unit WITHIN TWENTY-FOUR HOURS, or hand the child to a registered institution. Failure is an offence under sections 33 and 34, six months or ten thousand rupees. The child is abandoned within section 2(14)(vi). Section 36's proviso: being under six, the child goes to a Specialised Adoption Agency. Section 38: the Committee must try to trace the parents and, being under two, declare the child legally free for adoption within TWO MONTHS.

The girl of thirteen. Section 2(14)(ii): found working in contravention of the labour laws. Section 31: a LABOUR INSPECTOR is expressly among the persons who may produce her before the Committee. Section 36: inquiry; section 37: restoration to her family with sponsorship under section 45 if the family is poor, or foster care under section 44, or a children's home under section 50 if neither is possible.

The girl of fifteen. Section 2(14)(xii): at imminent risk of marriage before the age of marriage, with family members likely to solemnise it. This is the provision that lets the Committee act BEFORE the marriage, and it operates alongside the injunction the Prohibition of Child Marriage Officer may seek.

And the order of preference for all three. Section 39: family-based care first, restoration, sponsorship, foster care or adoption; and section 3's principle of institutionalisation as a measure of last resort.

Who supervises the placements? Section 54: inspection committees for the State and every district, inspecting all facilities at least once in three months; section 30(iv): the Committee itself visiting residential facilities at least twice a month.

What this does NOT mean

It does not mean a child in need of care has done anything wrong. No clause of section 2(14) requires an offence by the child, and the Committee is not a court.

It does not mean the Board and the Committee overlap. The Board deals with children in conflict with law and the Committee with children in need of care and protection, and section 17(2) is the route from one to the other.

It does not mean an institution is the answer. Section 39 prefers family-based care and section 3(xii) makes institutionalisation a measure of last resort.

And it does not mean a private home is outside the Act. Section 41 requires EVERY institution housing such children to be registered, whoever runs it, and section 42 punishes failure with a minimum fine of one lakh rupees.

Quick revision

s.2(14), twelve categories: no home and no means; found working contrary to the Act or the labour laws, begging or living on the street; residing with a person who has injured, exploited, abused or neglected, or threatened, or who has done so to another child; mentally ill, challenged or terminally ill with no support; parent or guardian unfit or incapacitated; no parents and no one willing, or abandoned or surrendered; missing or runaway; abused, tortured or exploited for sexual abuse or illegal acts, or likely to be; vulnerable to drug abuse or trafficking; abused for UNCONSCIONABLE GAINS; affected by armed conflict, civil unrest or natural calamity; and at IMMINENT RISK OF MARRIAGE.

s.27 Committee in every district, a Chairperson and FOUR members, at least one a woman and one an expert, three-year terms, induction training in two months. s.28 at least twenty sittings a month, child-friendly and not a court. s.29 exclusive power over such children. s.30 sixteen functions including TWO INSPECTION VISITS A MONTH and suo motu cognizance. s.31 production by police, labour inspector, public servant, Childline, a social worker, a doctor, or BY THE CHILD HIMSELF. s.32 mandatory reporting of an abandoned, lost or orphan child within TWENTY-FOUR HOURS; ss.33 and 34, an offence, six months or ten thousand rupees. s.35 surrender only for factors BEYOND CONTROL, a surrender deed, and TWO MONTHS to reconsider. s.36 inquiry in four months plus two, social investigation in fifteen days, under-sixes to a Specialised Adoption Agency. s.37 the orders. s.38 legally free for adoption in two months up to age two and four months above it.

ss.39 to 46 rehabilitation on an individual care plan, PREFERABLY FAMILY-BASED, siblings together; restoration as the prime objective; open shelters for short-term community-based support; foster care including group foster care with monthly inspection; sponsorship for widowed, divorced or abandoned mothers and incapacitated parents; and AFTER CARE on leaving at eighteen. ss.41 and 42 compulsory registration of every institution, one year or a minimum fine of ONE LAKH RUPEES, each thirty days' delay a separate offence. ss.50 to 55 children's homes, fit facility, fit person, services, INSPECTION at least once in three months, and independent evaluation.

Test yourself

1. Name six of the twelve categories in section 2(14). Any six of: found without a home or settled place of abode and without ostensible means of subsistence; found working in contravention of the Act or the labour laws, or begging, or living on the street; residing with a person who has injured, exploited, abused or neglected the child or threatened to do so; mentally ill, challenged or terminally ill with no one to support; a parent or guardian found unfit or incapacitated; no parents and no one willing to care, or abandoned or surrendered; missing or a runaway; abused, tortured or exploited for sexual abuse or illegal acts; vulnerable to drug abuse or trafficking; abused for unconscionable gains; affected by armed conflict, civil unrest or natural calamity; and at imminent risk of marriage before the age of marriage.

2. How is the Child Welfare Committee composed, and how often must it sit? A Chairperson and four other members appointed by the State Government, of whom at least one must be a woman and another an expert on matters concerning children, each with seven years' involvement in health, education or welfare work for children or a professional degree in child psychology, psychiatry, law or social work, for a term of three years. It must hold at least twenty sittings a month, in a child-friendly place that is not a court.

3. What does section 32 require, and what happens on failure? That any individual, police officer or functionary of an organisation, nursing home, hospital or maternity home who finds, takes charge of or is handed a child appearing or claiming to be abandoned or lost, or an orphan without family support, informs Childline, the nearest police station, a Child Welfare Committee or the District Child Protection Unit within twenty-four hours excluding journey time, or hands the child to a registered institution. Failure is an offence under section 33, punishable under section 34 with up to six months or a fine of ten thousand rupees or both.

4. What are the time limits for declaring a child legally free for adoption? Under section 38, for an orphan or abandoned child, within two months of the date of production for a child up to two years of age and within four months for a child above two, after all efforts to trace the parents or guardians. A surrendered child is declared legally free after the two-month reconsideration period given by section 35.

5. State the order of preference for a child's placement, and the provisions that establish it. Family, then family-like, then institution. Section 39 requires rehabilitation on an individual care plan "preferably through family based care" by restoration, sponsorship, adoption or foster care; section 40 makes restoration the prime objective of every home and agency; and section 3(xii) states the principle of institutionalisation as a measure of last resort.