File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Foster care in India-An alternative family based care

"Children need more than good physical care. They also need the love, attention and an attachment figure from whom they develop a secure base on which all other relationships are built." – John Williamson and Aaron Greenberg

Foster Care is a non-institutional child care alternative whereby the child lives with an extended or unrelated family for temporary care. This caters to children whose biological parents are unable to care for them for variegated reasons or who is separated from his/her family. It aids and promotes the environment, which is conducive to the personal growth and development of the child. Unlike adoption, it is temporary and does not terminate the biological parent's right to care for or control the assets of their children. Similarly, guardianship as opposed to foster is permanent although it does not terminate the legal ties with biological parents. The concept of child's right to family care is rooted in international conventions likeConvention on the Rights of the Child, 1989("CRC"), the UN Guidelines for Alternative Care 2009, the Indian Constitution, legislative enactments and the jurisprudence of the Indian Supreme Court on child rights.The manifest shift in the child care jurisprudence towards de-institutionalization of child care calls for a robust legal framework pertaining to foster care in India.

In India, the history of foster care can be traced back to 1960, when the same was first initiated by the Central Government. The first non-institutional scheme was introduced in Maharashtra in 1972.[1]The scheme was later revised in 2005 as the ‘Bal Sangopal Scheme – Non-Institutional Services'.[2]In the late 1990's Karnataka implemented a foster care scheme committed to destitute children. Moreover, the emergency schemes were operational in Gujarat, after the 2001 earthquake where around 350 children were rehabilitated with their relatives and neighbours in the community.[3]TheJuvenile Justice (Care and Protection of Children) Act, 2015 and Integrated Child Protection Scheme, 2009 (ICPS) presently incorporate the provisions for foster care.

Woe of Institutionalization
There is copious corroboration globally to show a perceptible shift made by child right jurisprudence towards family-based care as opposed to institutional care. Children brought up in institutional care exhibit a typical behaviour due to the extreme environment. Meta-analysis of various studies shows deviation below the standard mean of institutionalized children in contrast to parent-reared children with regard to physical growth and mental development[4]as well as display variety of social and behavioural problem.[5]Further, the prevalence of circumstantial evidence[6]and study performed by randomly assigning children to foster care vis a visinstitutionalization[7]suggest that institutionalized children's delayed development and long-term deficiencies are likely more associated with the care giving environment. Institutionalized children commonly display psychological and behavioural development deficiencies due to lack of attachment, acculturation, appropriate care giving, and proper nourishment; overcrowding and sometimes appalling environment of institutions. The institution also invites other problems like sexual exploitation, human-traffickinget cetera. The need of family-based care is recognized in a plethora of legal framework. CRC particularly recognizes child right to alternative family care under Article 20 and 21. Moreover, Art 18(2) mandates the State to assist parents and legal guardian in-order to ensure the welfare of the child and development of child care institutions. Internationally, by means of Article 4 and Article 5 of the UN Guidelines for Alternative Care 2009 the children enjoy the right to protective environment and the State is obligated to provide alternative family care to children who are denied the nurturing environment. The Indian Constitution unequivocally protects the right of the child. Art. 15(3) mandates the State to make special provision for children whenever necessary. The scope of other fundamental rights enshrined under Art 14, 19 and 21 are enlarged to protect the best interest of a child. Art. 39 (e) and (f) of the Directive Principles of State Policy directs the State to frame policies in-order to ensure that children are not abused[8]

and are provided adequate opportunity for healthy development and protection against exploitation and abandonment.[9]

Under Article 51A(k) every citizen who is parent or guardian is endowed with a duty to provide opportunity for education to his or her child or ward between six to fourteen years of age.[10]

The decision of Supreme Court in Laxmikant Pandey v. Union of India[11]is relevant in the present scenario as it lays emphasis on child's right to family and healthy atmosphere for development which in absence of family can be provided by alternative family-based care like foster, adoption and guardianship. Additionally, Principle 3.6 of the ICPS conspicuously strengthens de-institutionalization and emphasizes family-based care for children deprived of parental care.

Supreme Court in Bachpan Bachao Andolan v. Union of India[12]referring to the ICPS pointed the limitation of institutional care in India and suggested the need for schemes that promote foster care. In India, foster care is under-utilized as adoption is the method majorly relied on to protect the rights of the child to family careviz. certainly not adequate and not in conformity with international conventions. Moreover, the stigma attached to foster gets amplified in adoption.

Analysis of Foster Care System In Usa And Uk
In the United Kingdom, foster care was introduced as early as in 1853 where the Unions were obligated to provide for a sum to the foster parents which were to be equal to the cost of maintaining the child in the workhouse. The system of foster care in England, for instance, is regulated by the Fostering Services (England) Regulations 2011 and the National Minimum Standards. These regulations set out the procedure for the assessment of Fostering Service Providers, Foster Carers and associated staff with respect to effective delivery of fostering services. Such regulation expands the ambit of monitoring of the foster child and provides for better protection through laid down assessment procedure of the foster carers. In addition, it provides for different types of foster care like short-term foster care, emergency foster care, long-term foster careet cetera, which enables enhanced protection to the child according to the circumstance before him or her. Statistically speaking, approximately 64,000 children live with almost 55,000 foster families across the UK each day. Moreover, as on 31st March 2017, the number of children in foster placements, increased from 50,560 in 2013 to 53,420. 62% of children fostered were placed within the council boundary and 17% were fostered by a relative or friend while 1% were placed with a carer who is also an approved adopter (fostering for adoption). As on 31st March 2017, 74% of children, who were ordered to be taken care of by way of grant of the court, were placed in foster care and there has continued to be a fall in children placed with prospective adopters.[13]

In the USA, foster care system varies from one state to another. It is supervised and funded by each State's Department of Child Protective Services or Human Services. The process of attaining foster parent licensing is similar to the process of adoption. The legislation enacted such as Foster Care Independence Act of 1999 and Fostering Connections to Success and Increasing Adoptions Act of 2008[14]which provides for funding of the foster care youth for educational and other purposes promotes the upliftment of the youth so that they can contribute towards the society in some manner. The system of foster care in the most populous state i.e. California, for instance, has imbibed the concept of foster care to the fullest. It has the largest population of foster care youth in the nation with 55,218 children in the system as of 2012.[15]The process of fostering a child in California involves a home visit of parents seeking to foster by licensing worker. Additionally, minimum personal safety and space requirements must be complied with. Foster parents are required to work with social services staff to provide an environment conducive to the child best suited for that home. There are agencies which are also granted the license to provide certified family homes for children who require more services than are provided in foster family homes.[16]

On an analysis of the system in the above two countries, it is evident that foster system is enforced with full force with meticulously drafted legislation which provides for an intensive monitoring and assessment of foster parents before and after the child is brought into the family. However, despite carefully drafted regulations in place and the intensive monitoring and procedure, lacunae persist in the two systems in the form of overcrowding due to a limited number of foster homes, abuse in foster homes/group homes etc.

India is home to 20 million orphans with only 611 orphanages to accommodate this ever-increasing number.[17]This problem of overcrowding and limited resources poses difficulties in terms of the kind of care provided to the orphan and the protection guaranteed to him or her. Adoption laws in India provide a stringent procedure wherein the legality involved in adopting a child is time-consuming and tedious. This, in turn, adds to the problem of overcrowding in institutions. To combat such constraints, the system of foster care which offers a more flexible procedure should be implemented on a wider scale so as to provide a home to children suffering in overcrowded institutions lacking basic facilities. Such system would not only help in the early development of the child in growing stage but also provide an environment best suited to the child. Also, the assessment criteria in matching the foster parent with the child are more refined in the sense training programs and orientations are imparted to foster care family as against adoption where such programmes are rarely conducted. As per a report, Maneka Gandhi (Women and Child Development Minister) said that the adoption rate of 800 to 1,000 per year in India, which has around 50,000 adoptable orphan children, is "shameful". She commented on the lacunae in the current adoption procedure and the need for foster care system.

Foster care was initially incorporated under Section 42 of Juvenile Justice (Care and Protection of Children) Act, 2000which provided for temporary fosterage of children who are ultimately to be given for adoption and hence its scope was restricted only to pre-adoptive foster care. Juvenile Justice (Care and Protection of Children) Act, 2015 attempts to provide a wider definition for foster care under section 44. However, the same is still in a state of infancy as the government has been chary of its effective implementation.

In order to ensure that foster care system is effectively implemented following criteria should be met:

# a framework for monitoring and inspection;

# voluntary organization and experts in the different field to provide training to Child Welfare Committee(CWC), foster care families, child protection officers and social workers;

a clearly defined mechanism to look into the allegations made by either party and resolve the dispute;
to avoid delay, a fixed timeframe is to be set out for investigation and providing remedy accordingly;
a procedure needs to be established for termination of foster care;
maintaining transparency and accountability in the entire procedure;
providing a clear demarcation of roles and responsibility of each stakeholder and maintaining the record of detailed information of people involved in the venture including those funding it as well as executing the functions;
classification of foster care and placement based on time-frames as temporary foster care, long-term foster care and emergency foster care.

# the Fostering Services (England) Regulations 2011 and the National Minimum Standards are valuable to provide guidelines as to the working of the foster system and assessment of foster carers.
It is high time the government needs to deliver support to alternative family-based care and adopt a minimum standard for child care through independent inspections mandating reports on the functioning of the foster system and taking strict legal action wherever necessary.

Juffer Fet al., Children without permanent parents: Research, Practice, and Policy, Monographs of the Society for Research in Child Development, 2011.
McCall RB, Research, Practice, and Policy Perspectives on Issues of Children without Permanent Parental Care, Monographs of the Society for Research in Child Development, 2011.
Nelsonet al.Cognitive recovery in socially deprived young children: The Bucharest Early Intervention Project, Science, 2007
Van IJzendoornet al., Children in Institutional Care: Delayed Development and Resilience, Monographs of the Society for Research in Child Development, 2011.

Foster Family Renewed Hope And A New Life – A Study on The Practice of Foster Care for Children in India, National Research and Documentation Centre, BOSCO, 2013
International Conventions
Convention on the Rights of the Child, 1989
UN Guidelines for Alternative Care 2009

Constitution of India, 1950.
Juvenile Justice (Care and Protection of Children) Act, 2015.

California foster care and adoption guidelines,
Children's Defense Fund,
Department of Education, 2017, data/file/647852/ SFR50_2017-Children_looked_after_in_England.pdf.
Foster Care in California, Public Policy Institute of California, FosterCareJTF.pdf.
SOS Children's Village, Canada,

[1]Foster Family Renewed Hope And A New Life – A Study on The Practice of Foster Care for Children in India, National Research and Documentation Centre, BOSCO, 2013.
[2]The Practice of Foster Care in South Asia, Udayan Care, (29th October, 2017, 18:36 IST).
[3]Supra note 1, at p. 7.
[4]Van IJzendoornet al., Children in Institutional Care: Delayed Development and Resilience, Monographs of the Society for Research in Child Development, Serial No. 301, Issue No. 4. Vol. 76, 2011, pp. 8-30.
[5]Juffer Fet al., Children without permanent parents: Research, Practice, and Policy, Monographs of the Society for Research in Child Development,Serial No. 301, Issue No. 4. Vol. 76, 2011, pp. 31–61.
[6]McCall RB, Research, Practice, and Policy Perspectives on Issues of Children without Permanent Parental Care, Monographs of the Society for Research in Child Development,Serial No. 301, Issue No. 4. Vol. 76. 2011, pp. 223-272.
[7]Nelsonet al.Cognitive recovery in socially deprived young children: The Bucharest Early Intervention Project, Science, 2007Dec 21; 318(5858):1937-40.
[8]Art 39(e) Constitution of India, 1950.
[9]Art 39(f) Constitution of India, 1950.
[10]Art 51A(k) Constitution of India, 1950.
[11]AIR 1984 SC 469.
[12]AIR 2011 SC 3361.
[13]Department of Education, 2017, SFR50_2017-Children_looked_after_in_England.pdf,(November 2, 2017, 16:07 IST).
[14]Children's Defense Fund, 1, 2017, 18:30 IST)
[15]Foster Care in California, Public Policy Institute of California,, (November 4, 2017, 10:00 IST).
[16]California foster care and adoption guidelines, 4, 2017, 14:30 IST).
[17]SOS Children's Village, Canada, 4, 2017, 11:00 AM).

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Sexually Provocative Outfit Statement In...


Wednesday, Live Law reported that a Kerala court ruled that the Indian Penal Code Section 354, ...

UP Population Control Bill


Population control is a massive problem in our country therefore in view of this problem the Ut...

Privatisation Of Government Sector


Privatization of presidency Sector Although in today's time most of the services provided in ou...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly