Private international law: International adoption of a child

Private International Law: International adoptions, procedure for overseas prospective adoptive parents to adopt a child of a relative living in India

International adoption of a child is a complex concept of Private International Law but simplified by the Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption(1993), the state signatories to this convention convinced of the necessity to take measures to ensure that inter-country adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children.

The inter-country relative adoption/family adoption is different from other inter-country adoption of a child, in relative adoptions the prospective adoptive parents are already aware about the identity of a child of their relative, in fact there is already a consensus between the biological and prospective adoptive parents of a child regarding adoption even before seeking necessary approvals from the concerned authorities whereas in case of other adoptions the prospective adoptive parents have to choose a child as suggested by the regulated adoption agencies but in both situations the prospective adoptive parents have to undergo a process and seek necessary approvals which are mandatory in nature.

Punishment:

Any person, who takes or sends a child to a foreign country or takes part in any arrangement for transferring the care and custody of a child to another person in a foreign country without a valid order from the competent Court, shall be punishable as per the provisions of section 80 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which provides for punishment with imprisonment of either description for a term which may extend upto three years, or with fine of one lakh rupees, or with both.

Fundamental principles governing adoption:

The child's best interests shall be of paramount consideration, while processing any adoption placement. Preference shall be given to place the child in adoption with Indian citizens and with due regard to the principle of placement of the child in his own socio-cultural environment, as far as possible. All adoptions shall be registered on Child Adoption Resource Information and Guidance System and the confidentiality of the same shall be maintained by the Authority.

Child eligible for adoption:

Any orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee;
A child of a relative defined under sub-section (52) of section 2 of the JJ Act;
child or children of spouse from earlier marriage, surrendered by the biological parent(s) for adoption by the step-parent.

Eligibility criteria for prospective adoptive parents:

The prospective adoptive parents shall be physically, mentally and emotionally stable, financially capable and shall not have any life threatening medical condition.

Any prospective adoptive parents, irrespective of his marital status and whether or not he has biological son or daughter, can adopt a child subject to following, namely:-

The consent of both the spouses for the adoption shall be required, in case of a married couple;
A single female can adopt a child of any gender;
A single male shall not be eligible to adopt a girl child;
No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship.
In case of couple, the composite age of the prospective adoptive parents shall be counted.
The minimum age difference between the child and either of the prospective adoptive parents shall not be less than twenty-five years.
The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent.
Couples with three or more children shall not be considered for adoption except in case of special need children as defined in sub-regulation (21) of regulation 2, hard to place children as mentioned in regulation 50 and in case of relative adoption and adoption by step-parent.

Adoption Deed:

The execution of an adoption deed is not a mandatory requirement for the parties to adoption and even if it is executed then also the same cannot be termed as conclusive proof of a valid adoption because the adoption is required to be approved by the designated authority of the origin state.

Procedure:

Under the Hague Convention, in India CARA (Central Adoption and Resource Authority) has been notified to process the international and domestic adoptions. In the same manner, the convention countries have also designated authorities to process the international adoption applications.

Any Non-Resident Indian, Overseas Citizen of India or foreign prospective adoptive parents, living in a country which is a signatory to the Hague Adoption Convention and wishing to adopt an Indian child, can approach the Authorised Foreign Adoption Agency or the Central Authority concerned, as the case may be, for preparation of their Home Study Report (Home Study Report” means a report containing details of the prospective adoptive parents, which shall include social and economic status, family background, description of home and atmosphere therein and health status of the parents) and for their registration in Child Adoption Resource Information and Guidance System.

In case, there is no Authorised Foreign Adoption Agency or Central Authority in their country of habitual residence, then the prospective adoptive parents shall approach the Government department or Indian diplomatic mission concerned in that country for the purpose.

• On receipt of all requisite documents on Child Adoption Resource Information and Guidance System, the Authority shall forward the same to District Child Protection Unit for obtaining family background report of the child proposed for adoption.

• The District Child Protection Unit shall get the family background report conducted by its social worker and for this purpose, it can charge a fee as stipulated in the norms prescribed by the Authority from time to time.

• District Child Protection Unit shall forward a copy of the family background report of the child and the biological family to the Authority for onward submission to Authorised Foreign Adoption Agency or Central Authority or Indian Mission abroad.

• On receiving family background report of the relative’s child, the Authority shall forward the same to the receiving country as required under Articles 15 and 16 of the Hague Adoption Convention along with a preapproval letter supporting the proposed adoption.

• The Authorised Foreign Adoption Agency or Central Authority, on receiving requisite documents shall arrange to forward a certificate under Article 5 or Article 17 of the Hague Adoption Convention to the Authority.

• In case of countries which are not signatories to Hague Adoption Convention, in respect of Indian citizens, family background report of the relative’s child and prior approval letter from the Authority shall be forwarded to the Indian Mission of that country which will issue a recommendation letter to the Authority.

Legal Procedure:

The prospective adoptive parents, who intend to adopt the child of a relative shall file an application in the court concerned of the district, where the child resides with biological parents or guardians, alongwith a consent letter of the biological parents or guardians and all other documents as provided.

Adoption Order:

The prospective adoptive parents shall obtain a certified copy of the adoption order from the court and furnish a copy of the same to the District Child Protection Unit for online submission to the Authority.

No Objection Certificate of Authority:

In case of all inter-country adoptions, the Authority shall issue No Objection Certificate in favour of the adoption of the child within ten days from the date of receipt of adoption order forwarded by the District Child Protection Unit and a copy of the same shall be forwarded to the Authorised Foreign Adoption Agency or Central Authority concerned.

Issue of Conformity Certificate:

The Authority shall issue a Conformity Certificate under Article 23 of the Hague Adoption Convention in the format provided in Schedule X within three working days from the date of availability of the adoption order in the Child Adoption Resource Information and Guidance System, in case the receiving country of the adopted child is a Hague Adoption Convention signatory.

Birth Certificate:

The Specialised Adoption Agency shall apply to the birth certificate issuing authority for obtaining the birth certificate of the child within three working days from the date of issuance of adoption order, with the name of adoptive parents as parents, and date of birth as recorded in the adoption order and the same shall be issued by the issuing authority within five working days from the date of receipt of the application.

Passport/Visa etc:

To obtain Indian passport for the adopted child, the Specialised Adoption Agency shall submit the application to the regional passport officer within three working days from the date of receipt of the adoption order. The regional passport office shall issue passport for the adopted child within ten days from the date of receipt of application, in accordance with the circulars regarding issuance of passport to inter-country adopted children,issued by the Ministry of External Affairs of the Central Government from time to time.

OCI Card:

The adopted child shall be entitled to receive Overseas Citizen of India card, if found eligible.

Taking Out child from India:

The adoptive parent(s) shall come to India for taking the adopted child to their country within a period of two months from the date of adoption order.

The author can also be reached at solicitor.nara@gmail.com

 

Sukhvinder Nara 
on 27 February 2017
Published in Family Law
Views : 190
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