Inter-country Adoption

And the rest. The Indian agency must itself be recognised; the child's own interest is paramount; a child should go abroad only where a placement within India is not available; and the proceedings must be expeditious and confidential.

Why it matters. It created the Indian law of inter-country adoption before there was any statute, and every institution in the field, the Central Adoption Resource Authority, the recognised agency, the home study report, the follow-up requirement and the priority of the domestic route, is traceable to it.

The Hague Convention

What it is. The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, concluded at The Hague on 29 May 1993, which India ratified in 2003.

Its principles. That inter-country adoption may take place only where the competent authorities of the State of origin have established that the child is ADOPTABLE and have determined, after possibilities for placement WITHIN the State of origin have been given due consideration, that inter-country adoption is in the child's best interests; that consents have been given freely and without inducement by payment; that the child is counselled and the child's wishes considered where required by age and maturity; and that no improper financial gain is derived.

The machinery it requires. A CENTRAL AUTHORITY in each Contracting State, accredited bodies, and a defined sequence of communication between the two Central Authorities, with recognition of the adoption by operation of law in the other Contracting States.

Where it appears in Indian law. Section 68(d) of the Juvenile Justice Act, making the Central Adoption Resource Authority the Central Authority under the Convention; and the reference in section 59 to an AUTHORISED FOREIGN ADOPTION AGENCY, Central Authority, or concerned Government department in the country of habitual residence.

Section 59, the procedure

Sub-section (1), the sixty-day rule. Where an orphan, abandoned or surrendered child could not be placed with an Indian or non-resident Indian prospective adoptive parent, DESPITE THE JOINT EFFORT of the Specialised Adoption Agency and the State Agency, WITHIN SIXTY DAYS from the date the child was declared legally free for adoption, the child shall be free for inter-country adoption. The proviso: children with PHYSICAL AND MENTAL DISABILITY, SIBLINGS, and children ABOVE FIVE years of age may be given PREFERENCE over other children for inter-country adoption.

Read the proviso closely. It reverses the priority for exactly the children the domestic register does not take, which is the honest reason the exception exists.

Sub-section (2). An eligible non-resident Indian, overseas citizen of India or person of Indian origin is to be given PRIORITY in the inter-country adoption of Indian children.

Sub-sections (3) and (4). A non-resident Indian, overseas citizen, person of Indian origin or foreigner living abroad, IRRESPECTIVE OF RELIGION, applies to an authorised foreign adoption agency, Central Authority or Government department in the country of habitual residence; that body prepares the HOME STUDY REPORT and, on finding the applicants eligible, SPONSORS the application to the Authority. That is Lakshmi Kant Pandey's first safeguard in statutory form.

Sub-sections (5) and (6). The Authority examines the application and, if it finds the applicants suitable, refers it to a Specialised Adoption Agency where children legally free for adoption are available; the agency MATCHES a child and sends the child study report and medical report, which the parents may accept and return duly signed.

Sub-sections (7) and (8). The agency applies to the DISTRICT MAGISTRATE for the adoption order; on receiving a certified copy it sends it to the Authority, the State Agency and the parents, and obtains a PASSPORT for the child.

Sub-sections (9) and (10). The Authority informs the immigration authorities of India and of the receiving country; and the parents RECEIVE THE CHILD IN PERSON from the agency once the passport and visa are issued.

Sub-section (11), the follow-up. The authorised foreign adoption agency, Central Authority or Government department shall ensure the submission of PROGRESS REPORTS about the child in the adoptive family, and is RESPONSIBLE FOR MAKING ALTERNATIVE ARRANGEMENTS in the case of any DISRUPTION, in consultation with the Authority and the Indian diplomatic mission. That is the third Lakshmi Kant Pandey reason in statutory form.

Sub-section (12). A foreigner, person of Indian origin or overseas citizen HABITUALLY RESIDENT IN INDIA applies to the Authority with a no objection certificate from the diplomatic mission of his country in India.

Section 60, relative adoption across borders. A relative living abroad who intends to adopt a child from his relative in India obtains an order from the DISTRICT MAGISTRATE and applies to the Authority for a NO OBJECTION CERTIFICATE; the Authority issues it under intimation to the immigration authorities of India and the receiving country; the adoptive parents receive the child from the biological parents and must facilitate the child's CONTACT WITH HIS SIBLINGS and biological parents from time to time.

Section 61. The District Magistrate's satisfaction, in camera, within two months, as in the previous chapter.

Why the domestic route has priority

Because the Convention says so. Article 4 of the Hague Convention permits inter-country adoption only after possibilities for placement WITHIN the State of origin have been given due consideration, and article 21 of the Convention on the Rights of the Child treats it as an ALTERNATIVE MEANS of care.

Because the risks are specific. Lakshmi Kant Pandey names them: profiteering and trafficking; the impossibility of assessing a distant applicant without a home study report; the trans-racial, trans-cultural and trans-national adjustment the child must make; and the absence of anyone to supervise after the child has left.

And because the alternative is loss of identity. A child taken abroad loses language, community and the possibility of tracing a birth family, which is why section 60(3) requires a relative adopting from abroad to facilitate contact with siblings and biological parents.

The counter-argument, which a good answer gives. For a child with a disability, a sibling group, or a child above five, the domestic register does not produce a family, and an institution until eighteen is a worse outcome than a family abroad. Section 59(1)'s proviso is Parliament's acknowledgment of exactly that.

A worked example

A three-year-old is declared legally free for adoption on 1 March. By 30 April no Indian family has accepted the referral. An Indian couple in Canada and an unrelated Canadian couple both wish to adopt.

Is the child free for inter-country adoption? Section 59(1): only if the child could not be placed with an Indian or non-resident Indian parent despite the JOINT EFFORT of the Specialised Adoption Agency and the State Agency within SIXTY DAYS of the declaration. Sixty days from 1 March expires at the end of April, so yes.

Who has priority? Section 59(2): the Indian couple in Canada, being non-resident Indians, are to be given priority over the unrelated Canadian couple.

How do they apply? Not to the Indian agency. Section 59(3): to an authorised foreign adoption agency, Central Authority or Government department in Canada, which under sub-section (4) prepares the home study report and SPONSORS the application to the Authority. A direct approach is precisely what Lakshmi Kant Pandey forbade.

Then what? Section 59(5): the Authority examines and refers to a Specialised Adoption Agency; sub-section (6): matching, the child study and medical reports, acceptance; sub-section (7): application to the District Magistrate; section 61: welfare, the child's wishes, no payment, in camera, two months; sub-section (8): passport; sub-section (9): the immigration authorities of both countries; sub-section (10): the parents receive the child IN PERSON.

And afterwards? Section 59(11): the Canadian agency must submit progress reports and is responsible for alternative arrangements if the placement DISRUPTS, in consultation with the Authority and the Indian mission.

Change one fact: the child has a disability and is six. Then the proviso to section 59(1) applies, and such a child may be given PREFERENCE for inter-country adoption over other children, because the domestic register is unlikely to produce a family.

What this does NOT mean

It does not mean a foreigner may not adopt. Section 59 sets out how; it is the sequence and the sponsorship that are regulated, not the fact.

It does not mean sixty days is a waiting period for the parents. It is the period in which the Indian agencies must have made a JOINT EFFORT to place the child domestically, and the obligation is on them.

It does not mean the Hague Convention is enforceable in India of itself. India is dualist; the Convention operates through section 68(d) and the adoption regulations.

And it does not mean an inter-country adoption is second best in every case. For a child with a disability, a sibling group or a child above five, section 59's own proviso says otherwise.

Quick revision

s.2(34): inter-country adoption is adoption of a child from India by a non-resident Indian, a person of Indian origin or a foreigner. Lakshmi Kant Pandey 1984: every foreigner's application to be SPONSORED by an agency recognised or licensed by the government of his country of residence, none entertained directly by an Indian agency, for three reasons, to prevent PROFITEERING AND TRAFFICKING, to secure a HOME STUDY REPORT capable of showing the applicant can handle trans-racial, trans-cultural and trans-national problems, and to fix responsibility for SUPERVISION in the receiving country; the Indian agency itself to be recognised; the child's interest paramount; abroad only where no Indian placement is available; expeditious and confidential.

Hague Convention 1993, ratified by India in 2003: adoptability established, domestic placement given due consideration, consents free and unpaid, the child counselled, no improper financial gain, a Central Authority in each State and recognition by operation of law. s.68(d) makes the Central Adoption Resource Authority that Central Authority.

s.59: SIXTY DAYS from the declaration under section 38, joint effort of the Specialised Adoption Agency and State Agency, and then the child is free for inter-country adoption; PROVISO, preference for children with disability, siblings and children above five; PRIORITY for non-resident Indians, overseas citizens and persons of Indian origin; application abroad to an authorised foreign adoption agency, Central Authority or Government department, which prepares the home study report and SPONSORS it to the Authority; the Authority refers to a Specialised Adoption Agency; matching, child study and medical reports, acceptance; application to the DISTRICT MAGISTRATE; passport; intimation to both immigration authorities; receipt of the child IN PERSON; PROGRESS REPORTS and responsibility for alternative arrangements on DISRUPTION; and a separate route for a foreigner habitually resident in India with a no objection certificate from his mission. s.60: relative adoption from abroad, a District Magistrate's order, a no objection certificate from the Authority, and a duty to facilitate CONTACT with siblings and biological parents.

Test yourself

1. When does a child become free for inter-country adoption? Under section 59(1), where an orphan, abandoned or surrendered child could not be placed with an Indian or non-resident Indian prospective adoptive parent, despite the joint effort of the Specialised Adoption Agency and the State Agency, within SIXTY DAYS from the date the child was declared legally free for adoption.

2. Give the three reasons in Lakshmi Kant Pandey for requiring sponsorship by a foreign agency. To reduce profiteering and trafficking, since a foreigner approaching an Indian agency directly may be induced to pay an unconscionable amount; to secure a proper home study report, without which a court cannot satisfy itself that the applicant is a suitable parent able to handle the trans-racial, trans-cultural and trans-national problems of such an adoption; and to ensure that an authority in the receiving country is responsible for supervising the child's progress after placement.

3. What does the proviso to section 59(1) do, and why? It permits children with physical and mental disability, siblings, and children above five years of age to be given preference over other children for inter-country adoption. It exists because the domestic register is weighted towards infants without special needs, so for those children an institution until eighteen is the realistic domestic alternative.

4. Who has priority in an inter-country adoption? Under section 59(2), an eligible non-resident Indian, overseas citizen of India or person of Indian origin is to be given priority in the inter-country adoption of Indian children, over an unrelated foreigner.

5. What happens after the child leaves India? Under section 59(11) the authorised foreign adoption agency, Central Authority or Government department must ensure the submission of progress reports about the child in the adoptive family, and is responsible for making alternative arrangements in the event of any disruption, in consultation with the Central Adoption Resource Authority and the Indian diplomatic mission.