Child Protection And Conflict In Law Law Family Essay

Published Date: 02 Nov 2017

Introduction 1

Juvenile Justice and its way towards

Development of child welfare and adaption of child 3-5

Fallacies/Criticisms in the work of Juvenile Justice for children 6-7

Who Can Adopt 8

Child Protection and Conflict in Law 9-10

CARA and the Guidelines 11-12

Conclusion 13-14

Bibliography 15

INTRODUCTION

Children are considered to be the greatest asset of a nation through ages.They should be taken care of well by the nation. Their nurture and solicitude are nation’s responsibility. It is the duty of the state to devise programmes, frame policies, enact laws and duly implement it to protect the rights and interests of the children because welfare of children will make our nation more proud as these children are our future. When all children are to be taken care of then adopted children should be of no exception. Adoption of a child is an act of bringing in a stranger into the family fold by creating filial propinquity with the family making the adoption. The process is complete and irrevocable because one of the most important consequences is the snapping of the relations from the family of birth of the child and creating nearly the identical relations in the family of adoption. [1] . The Constitution of India provides safeguard to children and so has envisaged a happy and healthy childhood for children who is free from abuse, violence and exploitation.

JUVENILE JUSTICE AND ITS WAY TOWARDS DEVELOPMENT OF CHILD WELFARE AND ADAPTION OF CHILD

The Juvenile Justice (Care and Protection of Children) Act, 2000 and 2006(amended) is a comprehensive legislation to provide justice and opportunities to children so that they are not deprived of their rights and justice. The Act is based upon the provisions of the Indian Constitution and four broad rights of the UN Convention on the Rights of the Child and hence lays down the primary law for not only the care and protection of children in need but also for the adjudication and disposition of matters relating to children in conflict with law. It conforms to the UN Convention on the Rights of the Child (UNCRC) 1989, the UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985, the UN Rules for the Protection of Juveniles deprived of their Liberty and all other relevant national and international instruments. The Juvenile Justice system in India is based on the principle of promotion, protecting and safeguarding the rights of children up to age 18years. The Juvenile Justice Act has been broadly divided into three parts (1) Juvenile in conflict with law (2) Child in need of care and protection, (3) Rehabilitation and social reintegration. There are three institutions which come under Juvenile in conflict with law. They are Juvenile Justice Board (JJB), Observation Homes and the Special Homes. The basic aim of the Act is to adopt a child-friendly approach in the settlement and disposition of matter in the best interest of children and arrange ways for their ultimate rehabilitation through various established institution under this Act. The observation homes are the place where juveniles are kept before the hearing of case. The special homes are the place where the juveniles are kept after the final order is passed and are kept under probation and supervision. The JJB consists of 3 members. They are the Chief Judicial Magistrate and two Social Workers (one of them must be a female). There are two institutions which come under the child in need of care and protection. They are Child Welfare Committee (CWC) and Children homes. The Children Homes are the places where children belonging to the vulnerable groups are kept. The CWC consists of 5 members. One of them is the chairperson and the other members are Social Workers. Rehabilitation and social reintegration deals with the rehabilitation of children in children homes and special homes. It defines the procedure for adoption, foster care and sponsorship of child. The present juvenile justice system in India is a product of a long history of concerns put forward by civil society, and of enactments, policies and programmes of the Government that came into existence over a period of time. Traditionally the joint family, caste groups and village community played a key role in looking after a child in need of care and protection. However, with the spread of urbanization and industrialization, the break-down of family structures and religious sanctions, population explosion, prospects of adventure and excitement in cities, this traditional system was no longer able to provide for care of needy children. In order to provide for care and protection of children in need, the Government of India came up with the first uniform national law for children titled "Children’s Act" in 1960 followed by the Juvenile Justice Act.

This act takes adoption in a serious note. According to this act adoption is the rehabilitation and integration of children who are in real need of care and love. "Adoption according to this Act means ‘taking permanent custody and responsibility of a juvenile or a child covered under this Act who shall have pari passu rights of a natural born child.’ Under this Act a person can adopt any number of children of either gender. Unfortunately not many people are adopting under this Act. Child Right Activist Anjali Pawar Kate, Director of Pune based NGO Sakhee, working on child trafficking for adoption issues, explains why, "Adoption under the Juvenile Justice Act is very complicated and lengthy. That’s why adoption agencies prefer the other two acts that they have already been using for many years". [2] The Hindu Law has been in the process of development both at the hands of legislature and judiciary. When we already have gained the knowledge of Juvenile Justice and its trial and performance for the protection of adopted child and thinking so much about the welfare of the children we should also know the emergence of Juvenile court:

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FALLACIES/CRITISISMS IN THE WORK OF JUVENILE JUSTICE FOR CHILDREN

When Juvenile Justice is appreciated everywhere for its measures for the betterment of children and giving recognition to adoption and its proper procedures some criticisms can still be observed against Juvenile Justice and its performance:

Inspite of coming into force in 2001, the fruits of the Juvenile Justice’s benefits are confined to just urban specific areas. Though there are 30 JJBS AND CWCS in all the districts, it works in its true spirits in the districts like khurda and Cuttack.

Although the boards are working properly in some districts but they are dominated by the CJM.

The non-institutional services that have the Child Care Homes are facing various challenges due to domination and failure in proper maintainance.

The networking services between the govt. and the NGOS have proved to be a failure due to lack of proper communication.

Rs 750/- issued per child are very less if compared to the cost of living today.

Same amount of Money is allocated to the child in conflict with law as well as the child in need of care and protection hence creating shortfall of money for the children who are actually in need of it. This should be increased for main streaming more funds are required.

Corruption has actually increased to that level that in order to release Rs 750/-, the govt. officials also need certain amount as bribe which gets subsequently deducted from the amount that is provided to the child.

The fees of the higher officials in the state govt. would not reduce at any cost but there can be no progressive allotment for the child.

There is no special scholarship for the meritorious children.

Budgets are allocated for these children under many different schemes but the funds are not yet released.

Though every district has the Human Rights Protection Cell, and there is appointment of SJPUs, yet there is complete failure of child friendly police in our state.

Orissa being one of the backward state of the country, 47% of its population constitute BPL (below poverty line) dwellers who are actually deprived of their basic fundamental rights. Children living in poverty are deprived of their rights to survival, health and nutrition, education, participation and protection from hazards, exploitation and discrimination. This makes them most vulnerable to incidences of violence, abuse, neglect, maltreatment. To deal with the issues of protection of rights and interest of children, there are Juvenile Justice Boards (JJB) in 30 districts and Child Welfare Committees (CWC) in 30 districts of the state and Special Juvenile Police Unit (SJPU) in all 30 districts. There are 15 observation homes (both government run and NGO run) and 3 special homes in the state for the juveniles in conflict with law. Still no law can be perfect and hence even this Juvenile Justice has faced a lot of criticisms due to its misleading performance.

WHO CAN ADOPT

CHILD PROTECTION AND CONFLICT IN LAW

"UNICEF uses the term ‘child protection’ to refer to preventing and responding to violence, exploitation and abuse against children – including commercial sexual exploitation, trafficking, child labour and harmful traditional practices, such as female genital mutilation/cutting and child marriage. UNICEF’s child protection programmes also target children who are uniquely vulnerable to these abuses, such as when living without parental care, in conflict with the law and in armed conflict. Violations of the child’s right to protection take place in every country and are massive, under-recognized and under-reported barriers to child survival and development, in addition to being human rights violations. Children subjected to violence, exploitation, abuse and neglect are at risk of death, poor physical and mental health, HIV/AIDS infection, educational problems,displacement, homelessness, vagrancy and poor parenting skills later in life." [3] Protection of the rights of the children comes under our moral duty and hence even The Convention on the Rights of the Child (1989) clearly determines the fundamental rights of the children and which emphasises on the fact that even the have the right to be protected from the economic exploitation and harmful work including sexual harassment, abuse and from mental violence. Facts and figures

• Approximately 126 million children aged 5–17 are believed to be engaged in hazardous work, excluding child domestic labour

• More than 1 million children worldwide are detained by law enforcement officials.

• I t is estimated that more than 130 million women and girls alive today have undergone some form

of female genital mutilation/cutting. [4] 

We adopt and at times even we force the adopted child to become oour servant because even though science and our world have progressed still we are at the place where we consider our blood to be ours and can never consider others to be ours. This compels those chid who are unfortunate enough not to get their rights protected and lack of their own people to take care of them and think about their welfare become children in conflict with the law because this avoidance makes them rude and negative. "The term ‘children in conflict with the law’ refers to anyone under 18 who comes into contact with the justice system as a result of being suspected or accused of committing an offence. Most children in conflict with the law have committed petty crimes or such minor offences as vagrancy, truancy, begging or alcohol use. Some of these are known as ‘status offences’ and are not considered criminal when committed by adults. In addition, some children who engage in criminal behaviour have been used or coerced by adults. Too often, prejudice related to race, ethnicity or social and economic status may bring a child into conflict with the law even when no crime has been committed, or result in harsh treatment by law enforcement officials." [5] These children generally belong to the categories of Dalits, Tribals, SCs and the STs. Their financial conditions are very poor and these children fall easy prey to the hands of the criminals and the behavior of the criminals get unruly. They are generally orphaned, indulged in beggary, abandoned, missing, and run away children, available in the stations. Building a protective environment for children is very essential and if such environment is created then the children will also learn to fight against all odds because they will have the confidence that there is some one in this world to provide the roof over their heads. Now the creation of this environment needs eight different criterias:

Making the Government feel more committed towards the fulfillment of the child’s right.

Promoting the necessity of a proper and adequate legislation for the protection of a child

Complaining any harmful attitude done towards the children to the authority for actions

Instead of making public the deteriorating conditions of the adopted children we should encourage open and free discussion for the development of their conditions through media and other social networking sites.

Making the world aware of the way at times the adopted children are treated

Building capacity of families and communities

Providing necessary recovery measures for child welfare.

CARA AND THE GUIDELINESFOR ADAPTION AND CHILD WELFARE

When adoption is being a hotly debated topic then the question arrives whether foreigners can adopt an Indian or not and here even CARA(Central Adoption Resource Authority) has provided guidelines:

A homosexual can or cannot adopt a child because it doesnot fulfil the criteria of becoming a parent will be dealt later on. But even for foreigners to adapt an Indian CARA has set certain guidelines:

Now about homosexuals they should be allowed to adopt as that falls under basic fundamental rights and if they are not allowed then it will be violative of Article 14 of the Constitution of India i.e. not abiding by the equality clause. "There are no legitimate reasons for disallowing gays to adopt. If the concern is that a father/mother figure will be absent from the child's life, then adoption by single parents should also be disallowed. As it stands, however, we do allow single parents to adopt. Therefore, banning gays from adopting is hypocritical. Also, if your argument is that gay parents will never be able to reproduce, this is completely invalid. First of all, why does that matter? They're adopting, not repopulating a post-apocalyptic world. The inability to reproduce has no founding in this debate. If it did, sterile or infertile people would be barred from adoption. That, however, would be cruel, because it would take away somebody's only chance of raising a child. Finally, stating that homosexuality, or any sexuality other than heterosexuality, is deviant, and, by extension, wrong, is an opinion, and we don't decide the rights of many because of the opinions of a few. Also, any reasons which are backed by religious texts of any sort should never be counted in political arguments, as religion has no place in politics. There is supposed to be the separation of church and state." [6] 

CONCLUSION

Hence when we talk about adoption it is not only the child we are adapting but also taking in all the responsibilities related with that child. If we make them feel a burden on us then our future generation will never be an improved and educated one.

Before I end this topic these are the questions for the readers of this project to think about so that we all can actually progress towards the development and welfare of children:

Has The Juvenile Justice Act (juvenile justice homes) been successful in improving living conditions of the children?

Yes

No

What are the future prospects of these children?

How are the living conditions of children in juvenile justice homes?

Are they provided with basic facilities?

FACILITIES

YES

NO

Proper physical infrastructure

Clothing and bedding

Sanitation and hygiene

Nutrition and Diet Scale

Medical Care

Mental health

Education

Recreation Facilities

Vocational Training

Are parents and relatives of the juveniles or children allowed to visit them once in a month?

Yes

No

When a child is suffering from dangerous diseases or mental health problems, is he/she referred to appropriate medical authorities?

Yes

No

Are there regular inspections by the competent authorities (State Commission for the Protection of Child Rights, State Human Rights Commission)?

Yes

No

Whether the juvenile justice homes maintain proper ratio between the number of staffs and the number of children?

Do these children face problems other than the ones mentioned above?