Calcutta High Court Clears the Ambiguity Between Foster Care and Adoption

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Children are often referred to as god’s gift to a family. Unfortunately, this gift is not always welcomed. Things start getting ugly when there is a custody battle. Here the battle for custody is between biological parents and foster parents.

Facts of the Case

The concept of foster parents is new in India as compared to the West. A group of social workers filed the case. The petitioners are active participants in self-help groups. They have contributed to social causes. At Bankura district, West Bengal, a woman approached the petitioners.

At first, it started with seeking help to solve domestic issues between spouses. The matter worsened with them ostracized from society. They also lost one of their children within months due to malnutrition. When things got out of control the couple decided to put the other children for adoption. The petitioners did not agree and instead insisted on providing treatment. The petitioners visited the same family after a period. The child was battling for its life. The child was immediately rescued and provided with medical attention. They took the child with them for further medical treatment. During the period of treatment, the respondents did not care to visit. For this arrangement to continue adoption was necessary. The petitioners requested adoption. The respondents complied with the adoption procedures in the future.

Keeping the assurance the petitioners went ahead with the treatment. The petitioners provided the child with post-operation care. The child is also given the necessary attention to bridge the gap in its growth. Being aware of the child regaining its health the respondents try to take the child back. Since the petitioners refused them they sort to violence leaving the child traumatized.

Trial of the Case

The petitioners filed a report with the Child Welfare Committee after this incident. It did not stop the respondents. The police threatened the petitioners despite the complaint they filed. The CWC referred the petitioners to Mukti Rehabilitation Centre. This rat race came to an end when the CWC ordered the petitioners to have the child’s custody. The order is keeping in mind the welfare of the child.

This victory for the petitioners is short-lived. Respondents appealed against the order in the court of the District Magistrate. They appealed under the Juvenile Justice Act, 2015. Unfortunately, the District Magistrate ruled in favour of the Respondents. The petitioners lost custody and hence filed the present writ petition.

Contentions by the Petitioner

The extensive history of the case is what sets in as the reasoning. The petitioner’s counsel appealed to the court under section 37 of the Juvenile Justice Act. Section 44 of the act enhances the same. Here section 37 deals with the power of CWC to place children in care when needed. Section 44 provides for the CWC to place children in foster care when necessary.

The foster family does not include biological or adoptive parents. It suggests that the family needs to be recognised and positioned for the care. Further, strong emphasis is placed on the child’s health care. The counsel highlights the efforts taken by the petitioners for the same. It would be a lackadaisical approach to not grant the petitioners custody.

Contentions by the Respondent

The Respondent’s counsel relayed on the following things. He pointed out that the petitioner followed no legal procedure for foster care. Along with that, there is an alleged accusation of hiding the identity of the child from them. The Court should consider both the  Juvenile Justice Act and the West Bengal Juvenile Justice Rules, 2017. Also, the rules dictate the foster family unite the child with its biological parents. He justified the same by referring to the decision of the District Magistrate.

Court’s Analysis

The Court analysed the Juvenile Justice Act, 2015 and the rules in correspondence. The Court felt that the petitioners claim in this case was not strong. They reasoned it by stating that the respondents had only given the child for foster care. The compliance of the adoption procedure is more of an oral agreement. The Court also felt that the petitioners had mala fide intentions in changing the child’s name. The interpretation of the act ensured that the biological parents get custody. The Court stated that the act in no means grants foster care. Additionally, the idea of foster care is to protect children who are in dire need. In this case, the respondents are completely capable of taking care of the child. Hence the Court ordered to hand over the child’s custody to the biological parents.

Conclusion

The constant debate between foster care and adoption is clear to a fair extent in this case. The Court has explained what amounts to foster care. The law relating to foster care is within the Juvenile Justice Act, 2015. With the concept being dynamic it would be suggestive of having a separate act for the same.


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