27 December 2013
Guidelines for CWCs under POCSO
A talk given at the NCPCR, New Delhi, on
20 July 2013
By Suranya Aiyar
• • • • •
CWC - Child Welfare Committee
NCPCR - National Commission for the Protection of Child Rights
POCSO - Protection of Children from Sexual Offences Act, 2012
JJ Act - Juvenile Justice (Care and Protection of Children) Act, 2000
This written version of Suranya Aiyar's talk in New Delhi is published here by the generous consent of the author.
Marianne Haslev Skånland
• • • • •
Before I start I want to show you this photo. I’m going to keep it on through my presentation. That’s me, “the mother”, that’s Uday, “the father”, that’s Uma and that’s Kabir. Its difficult to articulate what is so precious about this. But I think the photo speaks for itself. Now looking at me, at my family, you don’t know whether I’ve come here after sexually abusing my child, or my husband is sexually abusing them right now. You don’t know, the POCSO judge doesn’t know and the CWC doesn’t know. But if you get it wrong, this precious thing is what you are destroying. So in any case, in any family, whatever the allegation, whatever the fears, it is absolutely vital that you don’t get it wrong. In a poor country like India where many people have nothing to live for other than the people they love, there is no excuse for getting it wrong.
I will identify some key problems with POCSO getting it right and suggest how the guidelines can mitigate this.
1. CWC can confiscate children before any investigation or adjudication has taken place under POCSO
This is how it works: Under Section 19(5) of the POCSO Act read with Rule 4(3) of the POCSO Rules, the police officer receiving a complaint of a sexual offence against a child has the duty to report the matter to the CWC within 24 hours. [s. 19(6) “The .. police … shall …. within … 24 hours, report the matter to the CWC … including need of the child for care and protection”]. Under Rule 4(4) of the POCSO Rules, within three days thereafter the CWC has the power to pass orders removing the child from the custody of its family, including its extended family, and be placed in a care home. See rule 4(4) “the concerned CWC must proceed in accordance with its powers under s. 31(1) of the [JJ Act] to make a determination within three days ….. as to whether the child needs to be taken out of the custody of his family or shared household and placed in a children’s home or shelter home.”. Under the provisions of the JJ Act to which this rule refers the CWC has the widest power to pass final orders regarding the child. s. 31(1) of the JJ Act: “The [CWC] shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children ….”. Under section 40 of the JJ Act, “rehabilitation” means adoption, foster care, sponsorship or sending the child to an after care organisation. So under Rule 4(4) CWCs can pass wide-reaching orders such as barring all family members from ever seeing the child, keeping the whereabouts of the child forever hidden from the family and the world at large, placing the child in a care home or foster care for life, giving the child away in adoption.
In other words, these provisions could be interpreted as empowering the CWC to confiscate children from their entire family (including the non-offending parent (who would in almost every case be the mother), grandparents, siblings, aunts, uncles and cousins) within three days of an offence being reported to the police. At this stage, not only has no case been proven in court, the investigation has barely begun.
2. Confiscatory powers of the CWC are triggered based solely on the word of the complainant who may be malicious or over-zealous and pre-investigation “apprehensions” of the police officer formed within 24 hours of receiving the complaint.
Both the complaint to the police and the police referral to the CWC are based entirely on guesswork.
This is how the referral to the CWC originates – under Section 19(1) of POCSO, “any person” who has “an apprehension that an offence is likely to be committed” under POCSO can make the complaint to the police. Indeed under Section 21(1) of POCSO, this is a mandatory reporting requirement. This is an open invitation for malicious complaints by say a relative with whom you are in a property dispute or a neighbour with whom you are fighting over the common water tank. It also results in over-reporting by doctors and school teachers who will find that it is not worth risking being implicated under Section 21(1) by giving parents or other parties the benefit of the doubt. This is the actual experience in the United States where doctors routinely file complaints of abuse based on injuries on the child without any more and in the United Kingdom where children are confiscated based on things they may have said innocently at school.
So we have the risk of malicious or over-zealous origination of complaints to the police and then there is guesswork by the police upon this guesswork of the complainant because under Rule (4)(3) the police are instructed to report the matter to the CWC based on their “apprehension” (to be formed within just one day of the complaint) that the offence is likely to be committed against the child by someone in its household.
In my opinion this is a total disaster in the making and is probably unconstitutional. But until something is done to rectify this, the guidelines could mitigate the disaster by having provisions such as the following:
> confiscatory orders under Rule 4(4) should not be passed unless and until there is a conviction under POCSO and there are no other family members willing to assume care of the child
> the determination as to “apprehension” of the offence having been committed should be made by senior-level police officers after consultation with legal experts and based on demonstrable evidence
> the CWC must investigate and record any dispute or potential conflict of interest between the complainant and the accused. If the complainant is a doctor or school teacher or other professional, the CWC should also look at the record of reports made by them and claims proven under POCSO, so that the record can show whether they are over-zealous in originating complaints.
3. Rule 4(4) can be interpreted to apply even where there is no complaint against a parent or other member of the household.
Rule 4(4) does not specify which police reports under Rule 4(3) are applicable to it. The guidelines should clarify that the power under Rule 4(4) does not apply where there is no accusation against a family member and that CWC should not disrupt custody of a parent who is not the accused.
The CWCs should be advised to apply Rule 4(4) only where both parents have been convicted of the offence under POCSO and there is no family member willing to take over guardianship of the child.
4. In exercising its severe confiscatory powers under Rules 4(4) and 4(5), CWC must have the benefit of legal and judicial expertise and its procedures must have the safeguards of a court trial.
Though the CWCs have been given wide powers under POCSO to break up families, to deprive children of their parents, siblings and other relatives, to institutionalise children or give them for adoption, members of the CWC are not required to have any legal, judicial, forensics or police experience. These powers are given to the CWC even though not a single CWC member may have ever seen a judicial proceeding or know the basic rules of evidence.
The guidelines should advise that CWCs looking at cases under POCSO should include members having legal and investigative experience.
We must never forget that the removal of children from their families is a confiscatory and penal action. Confiscation deprives parents, grandparents, siblings, cousins, aunts and uncles of their attachment, relationship, company and the enjoyment of their shared cultural heritage with the child. The child in turn is deprived of the enjoyment of these rights and relationships. The CWC acting under Rule 4(4) should not in effect become an adversary of the child and its family in this regard (as we saw in the Norwegian foster care case). Growing up in your own family should be seen by CWCs as an inalienable part of the best interests and welfare of the child. CWCs should be sensitized to the fact that when you are considering the best interests of a child, you cannot separate filial love from care. The two are intertwined.
The guidelines should advise CWCs to first explore and comprehensively exhaust all options of a family placement for the child before considering transfer of custody outside the family under Rule 4(4).
The CWC should make efforts to trace all family members (including the extended family) and to issue and publish summonses upon them.
All available family members should be given prior notice of custody proceedings under Rule 4(4).
CWC proceedings should also imitate as closely as possible a proper judicial proceeding where family members are treated as respondents in a court case who are contesting denial of custody of the child to them with all attendant rights of due process and a fair hearing. These rights would include the right of each family member to be heard and to have legal representation, to be given copies of all documents and evidence being used to deny them custody of the child, to have the right of appeal and to have the right to cross examine and bring witnesses.
5. Guidance to CWCs for custody or care orders
Rule 4(5) of the POCSO Rules is open to some very pernicious interpretations. If you read through the requirements that the CWC is called upon to take into account when deciding to remove custody of the child from its family, it would appear that if a family member is poor, or ill, or if the child has special needs, that can be a justification for depriving the child of his family.
Where the child has a family, POCSO should not become a vehicle for casually depriving them of their entire family because one member committed an offence against them.
The guidelines should advise CWCs to consider as an inalienable part of any child’s best interests: (i) the ability to grow up and live with his biological family; (ii) access of a child to the company of his non-offending family members; and (iii) the fostering of his bonds with them, especially, parents, grandparents and siblings. The guidelines should also sensitize CWCs to the fact that where both parents are convicted under POCSO, members of the extended family may not be able to take financial responsibility for the child, but this should not disentitle them from maintaining their relationship with the child.
With these basic principles in mind, the guidelines should give the following suggestions to the CWC when considering custody or care orders:
If a parent is not accused under POCSO, then that parent must not be deprived of custody of the child.
If a mother is not convicted as a primary offender under POCSO, she must have such access to her children as is permitted to women prison inmates under the general law.
Even where family members express themselves as unable or unwilling to take over guardianship of a child, this must not result in a total severance of the child’s relationship with these family members. The child must be enabled in knowing them, visiting them and fostering bonds with them even while in care homes or in foster care.
If a child has to be removed from the home, his mother or failing her at least one grandparent or adult sibling shall be allowed to accompany and live with the child wherever he is placed.
In all situations the child shall have the widest possible regular access to his non-offending family members, especially his mother, grandparents and siblings.
Even while in a care home or in foster care every effort will be made to encourage and nurture the child’s relationships with his family members, including members of the extended family, both by in-person interaction and through written, telephonic, video telephonic and other means available.
The limits on family visitation for children under CWC care orders under the JJ Act will not apply.
No care home or foster carer shall be permitted to argue against family interaction on the ground that this is “unsettling” for the child. The CWC shall ensure that care home personnel and foster carers are trained to encourage and foster family relationships and bonds.
Even while in a care home or in foster care, the cultural and religious heritage of the child of the family and community into which he was born shall be fostered and nurtured in that child
Poverty or illness or disability, whether of the child or the non-offending family member who is asking for custody, shall not be considered as reasons for depriving a child of his family. The principle should be if you’re the grandparent or aunt and you want to keep the child, then that decides the matter. Poverty and special needs and other things listed in Rule 4(5) shall be taken into account by the CWC to consider ways and means by which families can be aided (financially and otherwise) and counselled in better caring for the child.
There shall be no adoption of the child by non-family parties unless (non-offender) parents and grandparents and adult siblings each agree to adoption and, in case they are all dead or untraceable, members of the extended family agree to this after being explained that this will forever shut them off from the child.
Custody and guardianship of the child shall not be taken away from the family by way of interim orders. Interim measures shall be restricted to securing the child in its home and with full and free access to its mother where she is not an accused.
6. CWCs power under JJ Act should be harmonised with those under POCSO
The guidelines should advise CWCs to defer to the court process under the POCSO. Once a POCSO proceeding has been initiated, the CWC should refrain from making a determination under Section 2(d)(vi) read with Chapters III and IV of the JJ Act and wait for the court’s verdict on the accusation. An acquittal or dropping of a complaint under POCSO must automatically result in dropping of CWC proceedings and reversal of CWC orders removing the child from the family.
Since adoption creates third party rights in the adoptive parents, there should be no adoption orders unless the opportunity for all appeal and revision has been exhausted or extinguished under POCSO. Further, all the restrictions as to adoption under the JJ Act and the general law should apply to adoption orders under POCSO- initiated proceedings.
These are some suggestions. I hope NCPCR will give this point of view some thought. Thank you.
NCPCR, New Delhi
15 December 2012 / 3 December 2013
hindustan times, 14 February 2013
Pravasi Today, 9 May 2012
Forum Redd Våre Barn, 16-29 October 2012