1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION AND IN ITS GENERAL AND INHERENT JURISDICTION FOREIGN ADOPTION PETITION NO.6 OF 2010 In the matter of the adoption of female minor Kranti (born on 25th October 2008). Anders Ostergaard Pedersen & Anr. .. Petitioners ALONGWITH FOREIGN ADOPTION PETITION NO.26 OF 2010 In the matter of the appointment of guardians of person of a female minor Jaymala. Catenio Werner Giovanni & Anr. .. Petitioners ALONGWITH FOREIGN ADOPTION PETITION NO.28 OF 2010 In the matter of the adoption of a female minor Asmita. Roger Skog & Anr. .. Petitioners Vs. Asha Sadan, Rescue Home .. Respondents 2 ALONGWITH FOREIGN ADOPTION PETITION NO.33 OF 2010 In the matter of the adoption of a female minor Shama. Franca Paolo & Anr. .. Petitioners Vs. Bal Anand, Worldchildren Welfare Trust India .. Respondent ALONGWITH FOREIGN ADOPTION PETITION NO.35 OF 2010 In the matter of adoption of a female minor Chabbadi. Robert John Flory & Anr. .. Petitioners Vs. M.S.W.C.Asha Sadan, Rescue Home .. Respondents Mr.Swanand Ganoo a/w Mr.Amit Mehta i/by6 Mahimtura & Co for the petitioners in petitions. CORAM : R.S.MOHITE, J. DATE : 17th June 2010. P.C.: . Heard learned advocates. According to me all these petitions suffer from a common discrepancy and hence they can be disposed of by a 3 common order. The petitions have been filed by Foreign Nationals through their constituted attorneys who are employees of an Recognised Indian Placement Agency (hereinafter referred to as the RIPA). It is an admitted position that the petition has been filed under section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Juvenile Justice Act). 2. Though the Juvenile Justice Act by itself does not lay down the procedure to be followed by the Courts in the cases of adoptions, section 41(3) of the said Act lays down that the children should be given in adoption in keeping with the provisions of various guidelines relating to adoptions issued from time to time by the State Government or the Central Adoption Resources Agency (hereinafter referred to as the CARA) and notified by the Central Government. 3. The rules in this regard currently in force are the rules styled as “Guidelines for Adoption from India, 2006” (hereinafter referred to as 2006 guidelines) which have been published by the CARA, which is a nodal agency for the Ministry of Social Justice and Empowerment of the Income. The said 2006 guidelines of the CARA replace earlier guidelines which were published by the Central Government vide a notification 4 dated 29th May 1995. The 2006 guidelines have been accepted and notified by the Central Government on 14th February 2006. 4. The 2006 guidelines lay down the duties of various authorities and agencies involved in the process of adoptions by foreigners, non resident Indians and persons of Indian origin. The duties of various authorities and agencies, as mentioned in the guidelines, are laid down in different chapters of the said guidelines. The procedure for inter-country adoption is contained in chapter IV. A glance at the guidelines indicates that they have been framed with the aim and objective of protecting the interest of the child being given in adoption at various stages including the post- adoptive stage. The guidelines also appear to ensure that role of individuals in the entire process of adoption is minimised and wherever possible the entire process is institutionalised. The reading of the 2006 guidelines indicates that wherever actions are required to be taken through institutions, the role of individual, has been eliminated. For example, in Chapter IV of the said guidelines, it is specifically provided that no application by a foreigner/NRI/PIO for taking a child in adoption should be entertained directly by any social or child welfare agency in India. The procedure/steps to be followed for effecting an inter-country adoptions, are laid down in detail in guideline 4.1. In all there are eight 5 steps and the procedure starts with Step 1 which provides that the applicants who seek to adopt will have to conduct or register with an “Enlisted Foreign Adoption Agency” (hereinafter referred to as the EFAA)/ Central Authority/ Government department in their Country, in which they are residing. These institutions are required to provide a home study report and are required to forward an application alongwith all documents, as contained in Annexure II to the guidelines, to the RIPA. The role of RIPA on receipt of such documents, is specified in Step No.II & III and one of the requirements as provided in Step No.III is to obtain clearances through an Adoption Co-ordinating Agency (hereinafter referred to as ACA) as defined in the guidelines. After completing the procedure laid down in Step III, RIPA is required to forward the complete report to CARA for issuance of a no objection certificate and CARA is required to issue a no objection certificate before a petition for adoption is filed in the Court in accordance with Step No.VI. Step No.VI, however, contains a restriction as to who shall file petition for adoption/guardianship. The relevant part of Step VI is reproduced as under : “Step VI.- Filing of the petition in the Court: On receipt of the no objection certificate from CARA, RIPA shall file a petition for adoption/guardianship 6 in the competent Court within fifteen days.” Steps VI and VII deal with the procedure which RIPA has to follow prior to the child leaving the country. 5. Chapter V of the 2006 guidelines deal with RIPA’s and inter alia enumerate criteria for recognition and steps to be followed by them. One of the duties of a RIPA is to document their efforts to place the children with the Indian parents. Step IV then specifically provides that after the earlier steps are followed, the procedure as laid down in Chapter IV will be followed. This would include the duty of RIPA under Chapter IV to file an adoption petition in the Court. Chapter V also contains several safeguards relating to the working of a RIPA. For example, guideline 5.6 provides that RIPA will furnish quarterly statements to the State Government and CARA in the prescribed form. The guideline 5.11 requires to report on several matters as mentioned therein. The guideline 5.15 enjoins the duty on RIPA to regularly receive follow up reports from the EFAA and inform about any disruption or negative report about the child to CARA. It is also required to monitor progress report of children placed in inter-country adoption as per in-country guidelines. The guideline 5.16 enjoins the duty on every RIPA/ licenced Indian Placement 7 Agency to maintain several registers and prepare reports as specified. The guideline 5.17 lays down that RIPA can only pursue non profit objectives and recover costs for services rendered as specified in the said guideline. It prohibits a donation to be received by RIPA from foreign prospective adoptive parent/ parents or EFAA. The guideline 5.18 provides for revocation of recognition granted to a RIPA. Guideline 5.20 requires a RIPA to deal with foreign adoption agencies only and prohibits them from entertaining applications from foreigners including NRI’s and PIOs. Guideline 5.21 contemplates the inspection of such agencies. Guideline 5.22 permits de-recognition or suspension of recognition by CARA and states that no recognition can be granted on a permanent basis. Guideline 5.23 provides for other safeguards. In short, it is seen that Chapter V contains several stipulations and safteguards provided with the intention of ensuring that RIPA acts on a no profit basis and within the parameters as provided in Chapter V of the guidelines. 6. Chapter VI of the guidelines deals with EFAA. The role of such agencies covers the period when a foreigner/NRI/PIO approaches them for adoption and extends to the period when the application is forwarded by them to RIPA. However, Chapter VI also enjoins upon the EFAA further duties and responsibilities which would commence from the child 8 reaching the shores of foreign country to a period which would extend to two years or until such time as the legal adoption is completed and citizenship is acquired in the residing country. The guideline 6.6 confers a duty on an EFAA to submit a follow up report to CARA as well as to Court that awards the guardianship in India. There is also the duty of EFAA and the Central authority to forward a copy of the legal adoption order in their country to CARA as well as to the Court. 7. Taking into account the aforesaid scheme, it is abundantly clear that it is only RIPA that can make an application for adoption in the Court. All the applications in which the present order is being passed are not filed by a RIPA but has been filed by foreigners through constituted attorney who is an employee of RIPA. In the future such a procedure is not to be permitted. All petitions henceforth will be filed by a RIPA. 8. It may be mentioned here that as regards difficulties being experienced in the procedures presently being followed, this Court in case of Carsten Friis, which noticed that in the orders being passed by this Court under section 41 of the Act, undertakings of the foreign petitioners were being recorded to execute bonds either personally or through their constituted attorney in India in favour of the Prothonotary 9 and Senior Master to repatriate the minor to India if it becomes necessary for any reason to do so. That the further undertaking of the petitioners was being recorded, to submit to this Court, every three months, for two years and every six months for the next three years, the progress report of the minor made by the concerned authorities in the country to which the petitioner belonged. It was noticed that where the petitioners were foreigners, it was impossible to enforce such undertakings or orders in such circumstances, the Court accepted a suggestion that an undertaking should be filed by the RIPA through which applications are made to this Court. In my view, if the petition is itself required to be filed by RIPA then the mischief which were sought to be addressed by the directions given in the aforesaid case would be largely eliminated. 9. It may be mentioned here that under guideline 4.5 of Chapter IV there is a requirement that when the Court makes an order appointing adoptive parents as guardians of the child, the undertaking of the adoptive parents that they shall protect and safeguard the best interest of the child and the child will be legally adopted in the receiving State not later than two years from the date of order. It is expected that when a RIPA files petition it shall be accompanied by such undertakings from the adoptive parents so that Court can consider accepting such undertakings 10 when the order for adoption is ultimately passed. With these observations and in lieu of what is stated in this order all these petitions shall stand dismissed as not maintainable. The petitioners will be at liberty to take back all the original documents after furnishing a true xerox copies thereof for the purposes of record. 10. It is made clear that the RIPA which was concerned with these cases will be at liberty to file a fresh petition after following prescribed procedure in accordance with law. It is also made clear that this order will not effect, in any way the orders earlier passed, unless specifically reviewed. Petitions are disposed of accordingly. (R.S.MOHITE, J)