Calcutta High Court (Appellete Side)
Uttam Gayen And Another vs The State Of West Bengal And Others on 11 June, 2020
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P. No. 20206(W) of 2019
Uttam Gayen and another
Vs.
The State of West Bengal and others
For the petitioners : Mr. Debashis Banerjee,
Mr. Supreem Naskar
For the State : Mr. Tapan Kumar Mukherjee,
Mr. Somnath Naskar
For the Child Welfare
Committee : Mr. Chandi Charan De
For the respondent nos. 8 and 9 : Mr. Bikash Ranjan Bhattacharyya,
Ms. Sayanti Sengupta, Mr. Jamiruddin Khan Hearing concluded on : 04.03.2020 Judgment on : 11.06.2020 Sabyasachi Bhattacharyya, J.:-
1. The writ petition has been filed by self-proclaimed veteran social workers.
The petitioner no.1 is the present General Secretary of a civil society organization, namely, Paschim Banga Khet Mazdoor Samity and the petitioner no.2, an active worker of the Shramajivi Mahila Samity. The case made out by the petitioners is that in the year 2016, the petitioner no. 2 was working with several self-help groups in various places within the District of Bankura. In course of such activities, it is alleged, the private respondent no.8, the biological mother of a minor girl, approached the petitioner no.2 to 2 resolve the domestic disputes with her husband, in which the petitioner no.2 assisted the biological mother, which resulted in a relationship of trust developing between the petitioner no.2 and the respondent no.8 (biological mother). It is also alleged that with the help of the petitioner no.2, the domestic disputes of the respondent no.8 were mostly resolved and on February 5, 2017 respondent no.8, namely, Priya Pramanick, gave birth to a triplet, all girls.
2. According to the writ petitioners, the biological parents of the three children were ostracized by the parents of the biological father and the family got into a financially difficult situation. One of the triplets died while a couple of months old, apparently from malnutrition and a minor disease. One of the two other surviving children was also extremely sick and the private respondents did not have the financial means to treat the child. When the private respondents approached the petitioners, asking the latter to take the child in adoption, initially the petitioners refused the offer, but assured the private respondents of possible assistance for treatment of the child.
3. Some time in July, 2017, the petitioners visited the private respondents at their residence and found the child-in-question, namely Brishti alias Suparna, to be severely malnourished and suffering from a severe ailment, facing imminent death, according to the petitioners. Immediately, the child was brought to the residence of the petitioners at Badu, Madhyamgram, accompanied by two friends Gautam Debnath and Archana Sardar, when she was six months old. The petitioners allege that the private respondents themselves insisted the 3 petitioners to do so when she was handed over to the petitioners on August 12, 2017.
4. The petitioners found that the child was vomiting and throwing up almost all the food that she was given. The child was underweight, weighing only about 5.5 kilograms. The petitioners thus had her examined in the pediatric department of the National Medical College, where the petitioners were informed that the child had a cleft palate which was needed to be operated upon. The child was put on liquid food at short intervals of two to three hours to gain weight. The respondent no.2 took time off from her work and undertook the care of the child. It is alleged that, at this juncture, the private respondents did not care to visit the child at the hospital, despite several requests. The excuse for doing so, that was given by the private respondents, was allegedly that they could not afford to travel to Kolkata and insisted that the petitioners perpetually take care of the child.
5. As per the petitioners, although the petitioner no.1 was resistant to adopt the child in the absence of legal formalities, the petitioners ultimately agreed on the incessant pleas of the private respondents as well as the petitioner no.2.
6. An assurance was given by the private respondents that they would follow all legal procedure in future to give the child formally in adoption to the petitioners. The petitioners further alleged that the private respondents formally declared in writing that they had given the child to the petitioners in perpetuity in adoption and would not claim the child, thus abandoning the 4 child in perpetuity. It is also alleged that the private respondents deliberately avoided and refrained from cooperating with the petitioners regarding legalization of the adoption in accordance with law.
7. An operation was held on the child in February, 2018 in the National Medical College, Kolkata which was successful.
8. The petitioners named the child 'Brishti' (alias 'Suparna') in the meantime and her weight was allegedly increased to 10 kilograms in less than six months. Thereafter, the child still had a speech difficulty and was advised speech therapy, upon a thorough check-up, on February 2, 2019 all speech exercises and advises by doctors and experts in the field were meticulously abided by the petitioners and by the month of June, 2019, the child grew as an active two year old child with better speech.
9. The petitioners claim that the child has grown up knowing the petitioners to be her parents. All on a sudden, in July, 2019, the private respondents contacted the Shramajivi Mahila Samity, an organization with which the petitioner no. 2 is associated, and requested them for help to get her daughter back. Allegedly, on August 1, 2019, the private respondents came to Badu, Madhyamgram accompanied by hooligans and tried to take the child away forcibly. The child was traumatized and screaming when the members of the said organization intervened and a meeting to amicably solve the situation was held on August 20, 2019, which met with failure, fixing September 1, 2019 as the next date of meeting.
5
10. In the meantime, on August 29, 2019, officials from the Child Line, Barasat visited the Mahila Samity office asking for the petitioners and informed the petitioners that the officers of the Bankura police station were on their way to arrest the petitioners and to take custody of the child.
11. On August 30, 2019, the petitioner no.1 submitted a letter before the Child Welfare Committee (CWC), Barasat pleading before the Committee that no trauma be caused to the child.
12. On September 2, 2019, the petitioners took the child to the CWC, North 24 Parganas at Barasat at about 11 a.m., but some police officers raided the residence of the petitioners and threatened the petitioners' neighbours and friends with dire consequences. On the same day, that is, on September 2, 2019, at about 3 p.m., the petitioners informed the Chairperson, State Commission for the Protection of Child Rights, West Bengal and the District Magistrate, Bankura about the police action and the trauma that would be caused to the child due to the forcible separation from the petitioners, alleging to be her foster parents.
13. Thereafter, the child was sent, by an order of the CWC, to a Specialised Adoption Agency (SAA), namely, Mukti Rehabilitation Centre. According to the petitioners, the child was traumatized but the petitioners had to leave the child when they were refused permission by the Mukti Rehabilitation Centre to meet the child on September 4, 2019. The petitioners alleged that the said 6 Centre is apparently a rehabilitation centre for drug addicts and are little experienced and extremely ill-equipped in dealing with the children.
14. On September 5, 2019, the child was produced before the CWC, Bankura when the CWC ordered that she be sent to Chamtagara Adivasi Mahila Samity. Both the petitioners and the private respondents were directed to file requisite documents by September 13, 2019. The District Child Protection Unit, Bankura and the District child Protection Unit, North 24 Parganas were ordered to submit a Social Investigation Report within 15 days. The petitioners were allowed to stay and travel with the child till the evening she reached the Chamtagara Adivasi Mahila Samity.
15. The petitioner no. 2 applied in writing for permission to see the child on September 7, 2019 and was allowed to meet her till 4 p.m. in the evening when the petitioner no. 2 found the child's speech to be much reduced.
16. Again, on September 9, 2019, the petitioner no. 2 wrote to the Chairperson of the Bankura CWC asking for temporary custody of the child for the welfare of the child, pending the submission of the aforesaid report, also giving an undertaking that the petitioner no. 2 would produce the child as frequently as needed. She also undertook to obey the orders of the CWC.
17. Ultimately on September 23, 2019, the CWC passed a final order, directing the child to remain in the custody of the petitioners, recognizing them as foster parents and observing that there had been severe laxities and negligence on the part of the private respondents with regard to taking proper care of the 7 child, which amounted to deliberate abandonment of the child by her biological parents. The order of the CWC also recorded about a report, dated September 12, 2019, having been received from the West Bengal Commission for Protection of Child Rights.
18. The private respondents preferred an appeal against the order dated September 23, 2019 passed by the CWC, Bankura, before the District Magistrate at Bankura under the provisions of the Juvenile Justice Act, 2015 (hereinafter referred to as "the JJ Act"). On September 30, 2019, the petitioners appeared in a hearing before the District Magistrate. It is alleged that the petitioners were not allowed to submit their contentions and arguments in writing. The petitioner no.1 received an e-mail to his e-mail address on October 14, 2019 at around 3:57 hours which communicated that, by an order dated October 3, 2019, the District Magistrate, Bankura, had passed an order to rescue the child, named, Suparna Pramanick in the said e-mail, from the petitioners' custody and hand her over to the biological mother. It was contended in the e-mail that, as per the order of the Superintendent of Police at Bankura, a police team attempted to meet the petitioners at the given address but failed to meet the child. As such, the petitioners were directed to hand over the baby at their nearest police station or the Bankura police station and to inform about the same to the District Magistrate, acting as the appellate authority under the JJ Act.
19. The petitioners, claiming to be the foster parents of the child, named Brishti by them, immediately visited the office of the District Magistrate, Bankura as 8 well as the office of the Superintendent of Police, Bankura on October 8, 2019 along with the child to enquire about the veracity of the e-mail. Both the offices, however, were closed and the petitioners were asked to visit again after the reopening of the offices on October 16, 2019.
20. An order dated October 3, 2019, passed by the District Magistrate, Bankura was not served, according to the petitioners, upon them, which prevented the petitioners from challenging the same. The petitioners were further informed by a notice, dated October 15, 2019, that the child was suffering from various ailments and due to her aggravated health condition, she was then under medical treatment and supervision and it was in the best interest of the child to remain under medical treatment and supervision until complete recovery. A request was made to the police not to act in any manner or to take any further steps in such view of the matter.
21. On October 23, 2019, a representative of the petitioners went to the office of the District Magistrate again and was informed that a copy of the order of the Magistrate, along with a forwarding letter dated October 18, 2019, had been despatched from the office of the District Magistrate and was awaiting delivery. Upon sending a representative to the sub-post office at Madhyamgram, on October 23, 2019 itself, the petitioners were handed over a letter addressed to the petitioner no. 1 which had remained with the post office due to insufficient address.
9
22. Thus the petitioners received a copy of the order dated September 30, 2019 with the said forwarding letter, whereby the District Magistrate had set aside the order of the CWC, Bankura. The order of the District Magistrate was dated September 30, 2019.
23. Thus, the petitioners, being aggrieved by the order dated September 30, 2019, have preferred the instant writ petition.
24. Learned counsel for the petitioners argues that Sections 37 and 44 of the JJ Act empower the CWC to pass orders in respect of children in need of care and protection. It is submitted that Section 44 specifically provides for the children in need of care and protection being placed in foster care, including group foster care, after following the procedure as prescribed, in a family which does not include the child's biological or adoptive parents or in an unrelated family and recognized as suitable for the purpose by the State Government.
25. Learned counsel further argues that the expression 'child in need of protection' has been defined in Section 2(14)(iii)(a) to include a child who resides with a person, whether a guardian or not and such person has injured, exploited, abused or neglected the child or has violated any other law for the time being in force, meant for the protection of the child.
26. It is submitted further that Section 3(iv) of the JJ Act provides that the principle of best interest is to be the primary consideration in all decisions regarding a child in need of care and protection and to help develop the child to full potential.
10
27. Learned counsel for the petitioners thus submits, since the child-in-question has already lived with the petitioners as her parents till about two years of her age and has grown an attachment for the petitioners, which has been reciprocated by the petitioners all along, the child was rightly given in the foster care of the petitioners by the CWC. It is submitted that during the said two years, the biological parents of the child never inquired about the child but had handed over the child unconditionally to the petitioners for the purpose of taking care of the child. The biological parents intended to give the child in adoption to the petitioners by following due process of law, from which the said parents resiled thereafter.
28. Moreover, it is argued that it is the petitioners who, since almost the birth of the child, had looked after the child with parental affection and grown a bond with the child, which was mutual from the child's end as well. A surgical operation was held successfully on the child, at the initiative of and under the supervision of the petitioners, thereby curing her cleft palate. Even thereafter the speech disability of the child was sought to be cured by the petitioners by taking recourse to appropriate therapy in that regard, under proper medical supervision.
29. Hence, it is argued that, compared to the lackadaisical approach of the biological parents (private respondents) in respect of the child who neglected and abandoned the child with the specific intention of giving the child in adoption to the petitioners, the petitioners had all along shown parental care 11 and had the means, both social and financial, to give a proper upbringing to the child, which the private respondents lacked.
30. Learned counsel for the private respondents argues that the petitioners deliberately attempted to hide the identity of the child by altering her name. The private respondents had all along pursued the child but the petitioners refused to return the child to the private respondents.
31. Learned counsel for the private respondents further argues that no legal procedure was followed by the petitioners in taking over the child from the private respondents. At the juncture when foster care was given to the petitioners, the private respondents had the means to look after their child and take proper care of her. Since the private respondents are the biological parents of the child, they are the natural guardians of the child and are entitled to its custody, more so since the child is only over two years old.
32. Learned counsel relies on Section 2(30) of the JJ Act to argue that "foster family" means a family found suitable by the District Child Protection Unit to keep children in foster care under Section 44. It is argued that Sections 31 to 34 of the JJ Act and Rule 23, sub-rules (3) and (8) of the West Bengal Juvenile Justice (Care and Protection of Children) Rules, 2017 (hereinafter referred to as "the 2017 Rules") provide respectively that a child in the age group of six years and above may be considered for placement in foster care and that every attempt shall be made to reunite the child with its biological family, if possible, recognizing that every child has the right to grow in a family in 12 future. Rule 23(3) of the 2017 Rules contemplates children below six years of age, as far as possible, to be placed in adoption and not foster care. It is evident from the reports of the CWC, filed in court, that the petitioners do not have the legal right to take care of the child.
33. Learned counsel for the private respondents next submits that no legal procedure was followed in initially handing over the child to the petitioners and subsequently granting the petitioners foster care of the child. As such, the private respondents, being the biological parents of the child Suparna alias Brishti, are entitled to have the custody of the child, both in pursuance of the legal rights of the biological parents and looking at the welfare of the child.
34. Since the biological parents are in no way deficient or unfit to take proper care of the child, financially or otherwise, it would be the most congenial for the child's upbringing for the custody of the child to be given to the private respondents, as was rightly done by the District Magistrate, Bankura.
35. It appears from a report in the form of an affidavit, filed by the CWC, pursuant to an order dated February 10, 2020 passed in the writ petition, that on September 13, 2019, the biological parents of the child and the petitioners filed documents regarding the minor girl before the CWC. Subsequently, upon a report being filed by the District Child Protection Officer, Bankura, on September 23, 2019, the CWC, upon considering all the circumstances, had passed an order, giving the child in foster care of the petitioners. Thereafter, the CWC was intimated about the pendency of the writ petition and received 13 a letter dated November 5, 2019, whereby the Nodal Officer, High Court Cases Monitoring Cell, High Court at Calcutta bearing No. ISR/WP No. 20206(W) of 2019/05.11.2019/LAPOG/0003, requested the Chairperson of the Committee to contact the State Advocate, pursuant to which the CWC contacted such advocate and submitted two detailed reports. Subsequently, the CWC was directed, by an order dated November 1, 2019 passed in the writ petition, to monitor the physical and mental well-being of the child. Upon being directed by this court subsequently on February 10, 2020, the said report was filed, annexing relevant documents including orders of the CWC and the social investigation report filed before it.
36. It appears from the said report that nothing adverse regarding the socio- economic conditions and age of the biological parents and their basic education and professional skill, which could go against the biological parents being held fit to take proper care of the child financially. Accordingly, the reports suggested that the child may be restored to her home and reunited with her family and that follow-up or monitoring may be continued, if deemed appropriate, after such restoration.
37. For a complete adjudication of the dispute, the following provisions of law are set out below:
Juvenile Justice Act, 2015:-
"2(14). "child in need of care and protection" means a child -14
(i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or
(ii) who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or
(iii) who resides with a person (whether a guardian of the child or not) and such person -
(a) has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of the child; or
(b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person; or
(iv) who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee; or
(v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or
(vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or
(vii) who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed; or
(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or 15
(ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or
(x) who is being or is likely to be abused for unconscionable gains; or
(xi) who is victim of or affected by any armed conflict, civil unrest or natural calamity; or
(xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage;
.... .... .... ....
2(30). "foster family" means a family found suitable by the District Child Protection Unit to keep children in foster care under section 44.
.... .... .... ....
44. Foster care. - (1) The children in need of care and protection may be placed in foster care, including group foster care for their care and protection through orders of the Committee, after following the procedure as may be prescribed in this regard, in a family which does not include the child's biological or adoptive parents or in an unrelated family recognised as suitable for the purpose by the State Government, for a short or extended period of time.
(2) The selection of the foster family shall be based on family's ability, intent, capacity and prior experience of taking care of children.
(3) All efforts shall be made to keep siblings together in foster families, unless it is in their best interest not to be kept together.
(4) The State Government, after taking into account the number of children, shall provide monthly funding for such foster care through District Child Protection Unit after following the procedure, as may be prescribed, for inspection to ensure well being of the children.16
(5) In cases where children have been placed in foster care for the reason that their parents have been found to be unfit or incapacitated by the Committee, the child's parents may visit the child in the foster family at regular intervals, unless the Committee feels that such visits are not in the best interest of the child, for reasons to be recorded therefor; and eventually, the child may return to the parent's homes once the parents are determined by the Committee to be fit to take care of the child.
(6) The foster family shall be responsible for providing education, health and nutrition to the child and shall ensure the overall well being of the child in such manner, as may be prescribed.
(7) The State Government may make rules for the purpose of defining the procedure, criteria and the manner in which foster care services shall be provided for children.
(8) The inspection of foster families shall be conducted every month by the Committee in the form as may be prescribed to check the well-being of the child and whenever a foster family is found lacking in taking care of the child, the child shall be removed from that foster family and shifted to another foster family as the Committee may deem fit.
(9) No child regarded as adoptable by the Committee shall be given for long-term foster care."
.... .... .... ....
West Bengal Juvenile Justice (Care and Protection of Children) Rules, 2017:-
"23. Foster Care. - (1) The State Government may place children in need of care and protection in foster care including group foster care through SFCAC and final order by CWC for a short or extended period of time. SFCAC shall consist of the following members:-
(a) District Social Welfare Officer - Chairperson,
(b) District Child Protection Officer - Member Convener,
(c) Protection Officer (Non-Institutional Care) - Member,
(d) Protection Officer (Institutional Care) - Member,
(e) Social Worker Member of JJB - Member, 17
(f) Chairperson/Member, Child Welfare Committee - Member,
(g) Representative of SAA/CCI - Member,
(h) Representative of a Voluntary Organization working in the area of Child Protection with experience in restoration and family reunification - Member.
(2) The District Child Protection Unit shall be the nodal authority for implementing the foster care programme in a district.
(3) All decisions related to placement of a child in foster care shall be taken by the Committee on recommendation of SFCAC Children in the age group of six years and above may be considered for placement in foster care in the circumstances mentioned in sub-rule (1) of Rule 44 of these rules.
Children below six years of age shall be as far as possible placed in adoption.
(4) Children in need of care and protection who are living in community may also be considered for placement in foster care based on the child study report in Form 31 prepared by the District Child Protection Unit.
(5) The Committee shall take into consideration the individual care plan and the opinion of the child before deciding the nature of foster care with due regard to his age and maturity. The child shall be informed and prepared throughout the process.
(6) Foster care may be for short term or long term depending upon the needs of the child. The duration of short term Foster care shall be for a period of not more than one year.
(7) Long term foster care, shall be for a period exceeding one year. This can be periodically extended by the Committee till the child attains eighteen years of age on the basis of assessment of the compatibility of the child with the foster care parents or in a group foster care setting.
(8) Recognising that every child has the right to grow in a family environment, every attempt shall be made to reunite the child with his biological family, if possible.
(9) The Committee before placing the child in foster care shall obtain a Home Study Report of the foster family through the District Child Protection Unit in Form 30.
(10) Children with special needs may be considered either for placement in foster family or group foster care, provided the Home Study Report of the foster family supports their fitness or group setting has facilities for care of such children.
18
(11) The number of children placed under group foster care shall not exceed eight children in one unit including biological children of the foster caregiver.
(12) The District Child Protection Unit, while selecting foster family shall consider the following, namely:
(i) both the spouses must be Indian citizens;
(ii) both the spouses must be willing to foster the same child;
(iii) both the spouses must be above the age of thirty-five years and must be in
good physical, emotional and mental health;
(iv) ordinarily the foster family should have an income with which they are able to
meet the needs of the child;
(v) medical reports of all the members of the foster family especially the foster
parents residing in the premises should be obtained including reports for Human Immuno Deficiency Virus (HIV), Tuberculosis (TB) and Hepatitis B etc. to determine that they are medically fit; and
(vi) the foster family should have adequate space and basic facilities. (13) The District Child Protection Unit, while selecting Group foster care setting shall consider the following illustrative criteria:
(i) registration of the group setting under the Act;
(ii) recognition as a fit facility by Committee;
(iii) existence of child protection policy; and
(iv) sufficient space and proper amenities for children.
(14) The process for selection of Foster family or Group foster setting shall be notified by the State Government.
(15) The Committee shall pass the final order in Form 32 for placing the child in foster care, specifying the period for which the child is placed in foster care.
(16) The foster family or group foster care giver shall sign an undertaking for foster-care of the child in Form 33.
19
(17) The District Child Protection Unit shall maintain a record of each child in foster care in Form 34.
(18) The Committee shall conduct monthly inspection of the foster families or foster care givers in Form 35 to check the well-being of the child through DCPU.
(19) The foster family or group foster care giver shall:
(i) provide adequate food, clothing and shelter and education;
(ii) provide care, support and treatment for child's overall physical, emotional and mental health;
(iii) ensure protection from exploitation, maltreatment, harm, neglect and abuse;
(iv) provide appropriate facilities for recreation, extra-curricular activities such as sports, music, dance, drama, art, etc.;
(v) provide vocational training according to the interests of the child;
(vi) respect the privacy of the child and his biological family or guardian, and acknowledge that any information provided about them is confidential and is not to be disclosed to another party without prior consent;
(vii) provide treatment in emergent situations and inform the Committee and biological family about the same which may pass appropriate orders whichever necessary;
(viii) support contact between the child and his biological family in consultation with the Committee keeping in view the best interest of the child;
(ix) share and discuss the information pertaining to the progress of the child periodically with the Committee and biological family of the child and produce the child before the Committee as and when directed by the Committee; and
(x) ensure that the child's whereabouts are known at all times, including reporting any changes of address, holiday plans and any episodes of running away of the child to the Committee.
--- ---- --- ---20
44. Children who are not being adopted after being declared legality free for adoption may be eligible for Foster Care. - The following categories of children may be considered for Foster Care in following circumstances:
(i) Children in the age group of 0 to 6 years who are being considered by the Committee as legally free for adoption and those who have been declared legally free for adoption shall not as far as possible be considered for placement in foster care. Such children shall be provided a permanent family through adoption as per Adoption Regulations.
(ii) If adoptable children between the age of 6 to 8 years do not get a family either in in-
country adoption or in inter-country adoption within a period of two years after they are declared legally free for adoption by Child Welfare Committee, such children to be eligible to be placed in family foster care or group foster care, as the case may be, by the Committee on the recommendation of District Child Protection Unit or Specialized Adoption Agency.
(iii) Children in the age group of 8 to 18 years, who are legally free for adoption but have not been selected by any Prospective Adoptive Parent (PAP) for one year to be eligible to be placed in family foster care or group foster care, as the case may be, by the Committee on the recommendation of District Child Protection Unit or Specialized Adoption Agency.
(iv) Children with special needs, irrespective of the age, who do not get a family either in in-country adoption or in inter-country adoption within a period of one year after they are declared legally free for adoption by Child Welfare Committee, such children to be eligible to be placed in family foster care or group foster care, as the case may be, by the Committee on the recommendation of District Child Protection Unit or Specialized Adoption Agency, provided the Home Study Report of the foster family supports their fitness and group setting has facilities for care of such children.
(v) Where the child has remained with a foster family for a minimum of five years other than in pre-adoption foster care, the foster family may apply for adoption and shall be given preference to adopt the child after the child has been declared legally free for adoption and after registering in Child Adoption Resource Information and Guidance System and according to procedures laid down in Adoption Regulations." 21
38. From the averments of both sides, it is the admitted position that the minor girl-in-question was handed over by her biological parents to the writ petitioners for medical treatment of the child. Although the petitioners claim that the biological parents turned over the child to the petitioners with the intent of giving the child permanently under the care of the petitioners, only a written declaration to that effect is pleaded in the writ petition.
39. Apart from that, there is nothing to substantiate the claim of the petitioners regarding such intention of the biological parents. On the contrary, the petitioners' allegation, that the biological parents had assured that they would give the child in adoption to the petitioners subsequently by following due process of law, is contradicted by the allegation of a written declaration of adoption being given at the time of handing over of the child by the biological parents. Apart from the pleading on such purported document, nothing appears from the records to substantiate such claim of the petitioners.
40. On the other hand, Rule 23(3) of the 2017 Rules stipulates that all decisions related to placement of a child in foster care shall be taken by the CWC on recommendation of SFCAC. It is further provided that the children in the age group of six years and above may be considered for placement in foster care and children below six years of age shall, as far as possible, be placed in adoption.
41. The private respondents have specifically averred that the child was handed over only for the purpose of her treatment and there is nothing on record to 22 contradict the same, since neither any adoption nor formal conferment of foster care took place in favour of the petitioners, as per procedure recognized by law, at the relevant point of time. The petitioners themselves have admitted that they have had the child medically treated thereafter. It is an admitted position that the petitioners, being social workers, came to aid the respondent no. 8, the biological parents of the child, and grew close to the family. Even if such help, on the part of the petitioners ought to be appreciated on its own footing, the attending circumstances, as pleaded by both sides, clearly indicate that there was every possibility that the respondent nos. 8 and 9 had handed over their minor daughter to the petitioners for the purpose of medically treating the child and taking care of her for a temporary period. The closeness of the petitioners and the biological parents of the child is an indicator by itself of the reason for the biological mother to hand over the child to the petitioners on trust.
42. Yet, the petitioners had not got foster care or adoption of the child by any legal means at any point of time prior to the order of the CWC, which was set aside, against which the petitioners have come up with the present writ.
43. Even if the petitioners did a commendable job in curing the child substantially and taking care of the child, being social workers working in the field, the petitioners and their organizations, working in the field of social welfare for quite some time, could not deny having knowledge of the specific law governing the grant of foster care and adoption.
23
44. However, the petitioners exhibited mala fide conduct in altering the name of the child without having the legal right to do so, making it impossible for the biological parents to trace her out.
45. Rule 23(8) of the 2017 Rules recognizes that every child has the right to grow in a family environment and every attempt shall be made to reunite the child with her biological family, if possible. Such aspect was totally overlooked by the CWC while giving foster care of the child to the petitioners.
46. Section 31 of the JJ Act lays down the provisions and modalities about production of the child before the CWC. The proviso to Section 31(1) specifically stipulates that the child shall be produced before the CWC without any loss of time but within a period of 24 hours excluding the time necessary for the journey. In the present case, the petitioners did not produce the child voluntarily before the CWC at all, let alone "without any loss of time". Rather, the petitioners continued to have unlawful custody of the child and went on to alter her name, leaving it at the mercy of the petitioners for the biological parents to find out their daughter.
47. As regards the consideration of the CWC in respect of the biological parents being unfit to look after the child, which is a prerequisite for grant of foster care, the CWC considered the financial condition of the biological parents of a period of two years in the past, overlooking that, at present, the biological parents were sufficiently solvent and capable of looking after their daughter, as borne out by the Social Investigation Report referred to above. 24
48. "Child in need of care and protection" has been defined in Section 2(14) of the JJ Act to fall under several categories. The only category which can, at best, be applied to the minor girl in the present case is clause (iii)(a), taking into its purview a child who has been neglected by the person (guardian or otherwise) with whom the child resides. In the present case, the petitioners have alleged that the biological parents, not being able to support their minor daughter, handed her over to the petitioners voluntarily. However, a person financially incapable, for the time being, to support her / his child cannot be said to "neglect" the child as such merely by seeking better treatment for her, particularly in the context of the petitioners being social workers operating in the field and having close acquaintance with the private respondents. The compulsion of the biological parents, that too with the benefit of the child itself in their mind, cannot be equated with deliberate neglect. Moreover, admittedly the child was suffering from 'cleft palate' and other ailments, for the treatment of which the child was temporarily handed over to the petitioners. The said contention of the private respondents is credible on a balance of probabilities, since the petitioners had admittedly developed a good relation with the biological parents and have been connected since long with social welfare organizations, which also met such needs of indigent families.
49. That apart, merely such handing over cannot substitute a regular adoption or "foster care" being given as envisaged in law. Section 2(30) of the JJ Act 25 defines "foster family" as a family found suitable by the District Child Protection Unit to keep children in foster care under Section 44 of the JJ Act.
50. Section 44 of the said Act provides that children in need of care and protection may be placed in foster care, including group foster care, for their care and protection, for a short or extended period of time. By the last order of the CWC in the present matter, which was set aside by the appellate authority, the CWC granted foster care of the child to the petitioners till the child attains majority, although she has a biological family, which claims to have sufficient financial means at present to take proper care of the child. The 'unfitness' or 'incapacity' of the biological parents cannot be determined on the basis of the humble financial means of the biological parents two years back, which they now claim to have improved in the meantime. Where the biological parents are eager and otherwise fit to take care of the child, Rule 23(8) of the 2017 Rules specifically recognizes the right of the child to grow in a family in future and that every attempt shall be made to reunite the child with its biological family, if possible.
51. In the present case, despite the biological parents being apparently capable and eager to take back custody of their own child, the petitioners ought not to have been granted foster care forcibly. It is obvious that a two years-old child cannot have an intelligent preference or a conscious and educated choice as to the family which she wants to grow up in. Since the child has stayed with the petitioners for a considerably long time, she has naturally developed a bonding with the petitioners, which, at the tender age of 2-3 years, is quite 26 natural. But a child's likes and dislikes at such a tender age are malleable, subject to a sea-change as she grows up and matures. Thus, the CWC acted patently without jurisdiction in considering the willingness of the child as a component of her welfare. Merely the petitioners' perceived superior capability, as compared to that of the biological parents in raising the child, could not be sufficient justification for the petitioners to have foster care of the child throughout its minor years, thereby depriving the rights of the biological parents as her natural guardians. In the absence of any specific proof of present unfitness or incapacity of the biological parents, custody could not be forcibly handed over to the petitioners, who are outsiders to the family. Such an attempt would militate against the spirit of the law, since the first right of a child, even within the four corners of the JJ Act, is to grow up in its biological family, if not genuinely forsaken or neglected by the said family
52. Subsequent legitimizing and justifying the custody of the minor girl-in- question with the petitioners, which, from its inception, was unlawful, is contrary to settled principles of law.
53. Since the initial handing over of the child to the petitioners was palpably contrary to the legal procedure as contemplated in the JJ Act as well as the 2017 Rules, the same could not have been validated or ratified by a much later order granting the petitioners foster care, that too placing reliance on the weak financial condition of the biological parents almost two years in the past, by overlooking their fitness to care for their child at present. 27
54. That apart, as discussed earlier, Rule 23(3) of the 2017 Rules specifically stipulates that children below six years of age, as far as possible, shall be placed in adoption and only minors of six years or more would be placed in foster care in the circumstances mentioned in Rule 44(1) of the 2017 Rules, which lays down certain modalities for giving a child in foster care.
55. Rule 44(5) stipulates that, if the biological parents of the child are found to be unfit or incapacitated by the CWC, foster care may be given, but the child's biological parents may visit the child in the foster family at regular intervals, unless such visits are not in the best interest of the child, for reasons to be recorded. The said provisions, read with Rule 23(3) of the 2017 Rules, specifically indicate that the question of foster care comes in only in respect of children of six years or above. The child-in-question in the present case is well below the age of six years and as such, could only be placed in regular adoption. The CWC acted contrary to the aforesaid legal provisions in granting foster care of the child Suparna, alias Brishti, to the petitioners.
56. The basis of holding the petitioners capable of caring for the minor girl was the illegal custody of the child with the petitioners, during which the petitioners might have shown sufficient care and concern for the child. However, the said premise is itself invalid in the eye of law. Merely such care or concern cannot substitute the need of the child to be in her biological family, in which she has a right to grow in.
28
57. As such, the custody of the petitioners being unlawful since inception, could not be a valid basis of consideration for grant of foster care to the petitioners. In view of the conduct of the petitioners in altering the name of the child and keeping the biological parents away from the child for a considerably long period, it is but natural that the child will have less bonding at present for the biological parents than the petitioners. However, the views of the child at the tender age which she is in are extremely flexible and can undergo a huge change in her growing years, depending on her upbringing. Thus, such alleged opinion of the child, who does not have the maturity yet to have an intelligent preference in the matter of her custody, would be a wrong yardstick for holding that the petitioners are capable of looking after the child, while the biological parents are not. Although the act of the petitioners in looking after the child and having her treated thoroughly is undoubtedly commendable, if such act is prompted by an unlawful desire to keep the child with the petitioners by hook or by crook, the magnanimity in the act dissipates and the same is overshadowed by the illegitimacy of the desire, which is contrary to the law.
58. Even the Social Investigation Report dated September 12, 2019, submitted by a counsellor and annexed to the report of the CWC filed in this court, indicates that the financial and living conditions of the biological family of the child Suparna (alias Brishti) was pretty sound. In fact, the author of the report suggested that the child may be restored to her home and reunited with her (biological) family. Nothing adverse was found by the counsellor, as recorded 29 in the Social Investigation Report, which considered all facts as discussed therein, in the socio-economic conditions, age of the parents and their basic education, the professional skills of the biological parents, etc. Rather, the present health of the child was found to be good and the current socio- economical condition of her biological family, as disclosed in the said Report, reflects an atmosphere congenial to a complete and healthy development of the child in her biological family. This, in conjunction with Rule 23 (8) of the 2017 Rules, which recognizes that every child has the right to grow in a family environment and that every attempt shall be made to reunite the child with his (to be read as "her" in the present context) biological family, if possible, mandates that the minor child Suparna, alias Brishti, ought to be returned to her biological family, which has precisely been done by the District Magistrate, Bankura, acting as the appellate authority under the JJ Act, by dint of the order dated September 30, 2019, passed in Appeal No. 1 of 2019.
59. In the aforesaid circumstances, the District Magistrate at Bankura, acting as the appellate authority under the JJ Act, was justified in allowing appeal No. 1 of 2019 vide order dated September 30, 2019, thereby directing the child Suparna, alias Brishti, to be handed over to her biological parents, being the respondent nos. 8 and 9 herein, and setting aside the order of the CWC granting foster care to the petitioners. Since the petitioners were already veterans in the field of social activities, it was quite natural for them to have an access to the CWC and to have a workable knowledge of the relevant laws, which they sought to invoke for the purpose of legitimizing their custody of 30 the child, which was void and illegal ab initio. As such, despite having sympathy for the petitioners due to their bonding with the child Suparna, alias Brishti, this court's hands are tied since, for the welfare of the child, it is far better to hand her over at her tender age itself to her biological parents instead of putting her in foster care in the family of strangers till she attains majority.
60. Accordingly, W.P. No. 20206(W) of 2019 is dismissed on contest, thereby affirming the order dated September 30, 2019 passed by the District Magistrate at Bankura in Appeal No. 1 of 2019 and setting aside the order of the CWC granting foster care to the petitioners.
61. There will be no order as to costs.
62. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )