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Above: Outrage over the Muzaffarpur shelter rapes/Photo: UNI

The horrific exploitation of hapless minors in shelter homes in Bihar and UP shows a lack of understanding of ground issues and systems, leaving them at the mercy of exploitative adults

~By Papia Samajdar

The horrendous ill-treatment and rape of children in shelter homes in Muzaffarpur and Deoria have left the nation stunned and shocked. These places are meant to be warm, caring places for children who have been traumatised by circumstances. Many are orphans and have mental health issues and need to be nurtured back into society. But the reality is far from that. In fact, these are places straight out of hell, where the children are beaten, starved and sexually assaulted, leaving them mental wrecks for the rest of their lives.

The Juvenile Justice (JJ) Act defines a child care institution (CCI) as: “Children’s home, open shelter, observation home, special home, place of safety, specialised adoption agency and a fit facility recognised under this Act for providing care and protection to children, who are in need of such services.” This includes a list of basic mental healthcare services. The JJ Act also mandates that any such institution be registered, irrespective of being run by a state government or an NGO.

The Supreme Court had issued a writ petition directing all unregistered child care institutions to be registered by December 31, 2017. It said that such institutions should be linked to specialised adoption agencies so that the children deemed fit for adoption can find a home. The Act also places responsibilities on the state government to form specialised committees to monitor the institutions and ensure that all norms of child protection and safeguards are followed.

However, ground realities are far from ideal. There are still many child care institutions which are not registered. According to the National Commission for Protection of Child Rights (NCPCR), until July 2018, there were 5,850 registered CCIs in the country and more than 1,300 unregistered ones. According to the latest report by the Ministry of Women and Child Development, the total number of children in these institutions (registered and unregistered) are 3,68,267.  And according to a 2007 report by this ministry, 56.37 percent of children in CCIs across the country faced physical abuse by the staff of these institutions, 80 percent of children in special needs homes suffered physical abuse and 47.08 percent of those in institutional care reported sexual abuse. “There is a lack of comprehensive and reliable data on children without parental care in developing countries, including India,” says Kendra Gregson, Advisor, South Asia, UNICEF.

Main accused in the Muzaffarpur shelter rape case, Brajesh Thakur
Main accused in the Muzaffarpur shelter rape case, Brajesh Thakur

The Muzaffarpur and Deoria shelter home rape cases have restarted discussions on child safety and protection in institutional care. In cases of sexual abuse over a period of time, the trauma caused to the children could lead to serious mental health issues if not addressed in time. In the recent Muzaffarpur case, 34 girls aged seven to 17 years were allegedly raped for months, and most of them have speech impairment. With so much media attention and political furore over this case, the Supreme Court has had to step in to ensure that the victims do not come into the limelight, even in a morphed fashion. The girls have now been placed in shelters across the state and are being counselled. The Bihar Social Welfare Department is in charge of their recovery and it has taken on board two counselling centres to help.

The rising number of such cases against children in shelter homes magnifies the need for mental healthcare for them. Whether the government and social welfare departments are equipped to deal with the magnitude of this crisis is something no one monitors. Although the National Policy for Children 2013 talks about giving adequate mental healthcare services to children, awareness and understanding about this subject is at a very nascent stage. Besides the exploitation these children undergo in these shelter homes, many of the unregistered ones are also indulging in illegal adoption.

According to the United Nations Convention on the Rights of the Child, the best environment for a child to grow up is in a family or family-like environment. Every child has a right to a family. In India, some 170 million children are living in difficult situations and need care. This means that either they do not have parent(s) or their parents are unable to take care of them.

The world over, institutional care in child care centres is known to be the last care option, preceded by forms of alternative care which provide the child family or family-like care. These include foster care or group foster care, sponsorship, kinship care and adoption.

However, in India where a large number of children need care, what are the other solutions that the country provides? As the world moves towards deinstitutionalisation of child care, how is India placed? What are the policies of the government to safeguard the rights of the children, while encouraging its populace to provide care?

Globally, adoption of a child is considered a legal and permanent solution in the absence of biological parents or where the biological parents’ rights are surrendered, and the child becomes a legal member of the adoptive family. Foster care is a temporary living situation in which the foster family has guar­d­ianship only. The child’s biological parents still remain his legal parents, unless the parental rights are terminated by law. The model guidelines for Foster Care, 2015, based on Section 42 of the Juvenile Justice Act (ICPS) and the United Nations Convention on the Rights of the Child, define foster care as “placement of a Child by the Child Welfare Committee for alternative care in the domestic environment of a family, other than the child’s biological family, that has been selected, qualified, approved and supervised for providing such care. Foster carers/parents means persons/parents selected, qualified, approved and declared fit by the Child Welfare Committee for the placement of the child under foster care”.

Infamous cases

Though many cases of child care institutions torturing children have come to light, little action is taken against perpetrators.  In 2001, the owners of Anchorage Shelter Home in Mumbai were charged with sexually abusing the boys in their care. The home was run by British nationals and provided lodging and food to street kids. However, the Bombay High Court acquitted the accused on the grounds that the acts (oral sex) were ruled not to indicate definitive crime under IPC Section 377 and the testimonies of the children were not reliable. The Supreme Court reversed the order after 10 years and in March 2011 sent the accused back to jail for six years.

Many acts of child sexual abuse were neither defined nor outlawed in India until the Protection of Children from Sexual Offences (POCSO) Act was passed in 2012. But not every accused gets convicted.

In 2012, when a girl died of vomiting and diarrhoea, post-mortem reports showed that she was repeatedly sexually abused in an orphanage called Arya Anathalaya in New Delhi. The NGO HAQ, which assisted the police in investigating the case, filed a report claiming that a majority of the children interviewed faced sexual harassment, ill-treatment, eve-teasing and rape. The police arrested three staffers, including the chief warden and booked a 14-year-old boy on charges of sexual abuse. However, the management of Arya Anathalaya contended that the Child Welfare Committee had no authority over it and barred HAQ from entering its premises. The warden got bail and is working with the institution at another location.

In July 2017, reports of the illegal adoption (selling) being run by a nun at Mother Teresa’s Missionaries of Charity, Ranchi branch, sent authorities into a flurry to monitor child care centres. Though that particular centre was shut, both its management and the local government claimed this was an anti-Christian agenda. This happened two years after the JJ Act mandated every child care centre be registered with CARA as a specialised adoption agency.

In West Bengal, political party members were involved in funding an NGO which served as a front for selling 17 children under the guise of adoption. The police made four arrests in this case.

In March 2018, an unregistered child care home housing children with HIV came under the scanner for torture. The child welfare committee had taken no action in spite of being aware that it was functioning without registration. The matter came to light only when an activist reported it to the National Human Rights Commission. No action was taken against the caretaker, the main perpetrator, as the parents of the victims refused to file a police complaint. Though physical and sexual abuse was reported by the District Child Protection officer under the POCSO and JJ Acts, no case was filed. The home is in the process of being closed down. The existence of many more unregistered homes cannot be ruled out

In case financial support is required by the extended family, it can be provided through sponsorship provided by the ICPS or other schemes.

The eligibility criteria for a child to be placed in foster care is from 6-18 years. Foster parents and these children require counselling. The idea is to ensure that children are brought up in a family and have time to adjust to their new family. The guidelines provide a monitoring and tracking mechanism for the children.

However, pushing for adoption of children in the lower age group has left the system of foster care crippled. The fact that prospective adoptive parents in India want children as young as one year or less is creating a dent in ensuring the best interests of older children. This means that children still in their formative years would not have the security of permanency. Considering that most of these children have suffered some form of trauma or abuse before being rescued, they need considerable psychosocial support.

I Bose, a prospective parent, told India Legal: “I have been waiting to adopt a child for the past three years now. The options given to us are older children five years and above. My wife and I have decided to wait till we can choose a child less than two years.” When asked why, he said that the older the child, the more difficult it is to assimilate him.

The foster care programme is still new in India and is temporary for the child. It can be extended till he attains 18 years of age. It was put in place to ensure non-institutionalisation of children in need. However, lack of awareness, cultural demands and lack of proper counselling are some of the problems plaguing the programme. People forget that children older than six also deserve a family-like environment. But without proper implementation and awareness, they remain in child care institutions. There is no publicly available data on foster care in India and the number of children placed under it. “In our experience, foster care is not very popular in India,” said Rakesh Shrivastava, secretary, Ministry of Women and Child Development.

Bihar social welfare minister Manju Verma after resigning over allegations against husband Chandeshwar Verma in the Muzaffarpur case
Bihar social welfare minister Manju Verma after resigning over allegations against husband Chandeshwar Verma in the Muzaffarpur case

Coming to adoption, there are about 30 million infertile couples in India, according to a 2016 data collated by NGOs. There are some 14,000 applications from prospective parents as against only 900 children available for adoption. According to the Central Adoption Resource Authority, the nodal body under the Ministry of Women and Development which regulates and monitors adoption, between April 2017 and March 2018, 3,276 successful adoptions took place.

After the adoption process was taken online, the government had expected that corruption would be curbed. “However, the speed is yet to take off. We are yet to see a surge in the number of successful adoptions,” said Shrivastava. Also, in adoption, the best interests of a child often get ignored, though this has been the basis of various acts revolving around the child. The current system matches the demands of prospective parents with that of a child. Specialised adoption agencies which take care of the children often do not have an opinion on the matter.

It is a moot question how successful the government has been in stopping the “black market” in adoption. Given the number of unregistered child care centres which often serve as a front for illegal adoption, the sheer demand-supply gap forces prospective parents to find an easier solution.

According to Arun Dohle, founder, Against Child Trafficking: “The online system has done nothing to address the issue of corruption and illegal adoption.”  And the government has been unable to curb this.

Though policies and laws around child care seem robust, understanding of ground issues, lack of data, inadequate systems and the sheer number of children in need makes these policies and legal instruments weak. “There is no right or wrong option, it is the manner in which care is provided which needs to be appropriate,” said Dr Shantha Sinha, founder of MV Foundation which works for providing support to out-of-school children.

The government and civil society need to work together and create mass awareness about alternative forms of care and should not promote one form over the other. As there is no one rule to fit all, all forms of alternative care should have a robust framework, apt understanding and appropriate systems to ensure protection of the children.

—The writer is a communications consultant

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