LAKSHMI KANT PANDEY v. UNION OF )NDIA

L.K. PANDBd v. UNION (Bhagwatl, J.) 833

worker indicating the basis on which the application cif the foreigner A for adopting a child has been sponsored by it. The home study report should broadly include information in regard to the various matters set out in Annexure 'A' to this judgment though it need not strictly adhere to the requirements of that ·Annexure and it should also contain an assessment by the social or child welfare agency as to whether the foreigner wishing to take a child in adop~ B tion is fit and suitable and has the capacity to parent a child coming from a different racial and cultural milieu and whether the child will be able to fit into the environment of the adoptive family and the community in which it lives. Every application of a foreigner for taking a child in adoption must be accompanied by a home study report and the social or child we1fare agency sponsoring such appli- c cation should also 'send along with it a recent photograph of the family, a marriage certificate of the foreigner and his or her spouse as also a declaration concerning their health together with a certifi- cate regarding their medical fitness duly certificate by a medical doctor, a declaration regarding their financial status alongwith _ supporting documents including employer's certificate where appli- D cable, income·tax assessment orders, bank references and particulars concerning . the properties owned by them, and also a declaration stating that they are willing to be appointed guardian of the child . and undertaking that they would 'adopt the child according to the law -of their country within a period of not more th'an two years from the time of arrival of the child in their country and give inti- E

- mation of such adoption to the court appointing them as guardian as also to the social or child welfare agency in India processing their case, they would maintain the child and provide it necessary edu- cation and up-bringing according to their status and they would also send to the court as also to the social or child welfare agency in India reports relating to the progress ofthe child alongwith itnecent photograph, the frequency of such progress reports being quarterly during the first two years and half yearly for the next three years. The application .of the foreigner must also be accompanied by a Power of Attorney in favour of an Officer of the social or child welfare agency in- India which is requested to process the case and such Power of Attorney should authorise the . Attorney to handle the case on behalf of the foreigner in case the foreigner is n:ot in a position to come to India. The social or child welfare agency sponsoring the application of the foreigner must also certify that the foreigner seeking to adopt ii child is permitted to do so according to the law of his country. These certificates, declarations a11d documents which must accompany the application of the foreig-

834 SUPREMe couRt REPORTS (1984) 2 s.c.R.

A ner for taking a child in adoption, should be duly, notarised by a Notary Public whose signature should be duly attested either by an Officer of the Ministry of External Affairs or Justice or Social Wei· fare of the country of the foreigner or by an Officer of the Indian Embassy or High Commission or Consulate in that country. The 0 social or child welfare agency sponsoring the application' of the B foreigner must also undertake while forwarding the appllcation to the social or child welfare agency in lndia, that it will ensure adop· tion of the child by the foreigner according to the law of his country within a period not exceeding two years and as soon as the adoption is effected, it will send two certified copies of the adoption order to the social or child welfare agency in India through which the appli· C cation for guardianship is processed, so that one copy can be filed in court and the other can remain with the social or child welfare agency in India. The social or child welfare agency sponsoring the application must also agree to send to the concerned social or child welfare agency in India progress reports in regard to the child, quarterly during the first year and half yearly for the subsequent year or years until the adoption is effected, and it must also undertake that m case of disruption of the family of the foreigner before adop· ). ti on can be effected, it will take care of the child and find a suitable alternative placement for it with the approval of the 'concerned social or child welfare agency in India and report such alternative placement to the court handling the guardianship proceedings and such information shall be passed on both by the court as also by the concerned social or child welfare agency in India to the Secretary, Ministry of Social Welfare, Government of India. The Government of India shall prepare a list of social or cluld welfare agencies licensed or recognised for inter-country adoption by the government of each foreign country" where children from India arc taken in adop, tion and this list shall be prepared after getting the necessary infor- mation from the government of each such foreign country and the Indian Diplomatic· Mission in that foreigne country. We may point out that the Swedish Embassy has in Annexure II to the affidavit filed on its behalf by Ulf Waltre, given names of seven Swedish organisatiqns or agencies which are authorised by the G· National Board for Inter-Country Adoption functioning under the Swedish Ministry of Social Affairs to "mediate" applications for adoption by Swedish nationals and the ·Indian Council of Social Welfare has·also in the reply filed by it in answer to the writ 'peti; tion given a list of government recognised organisatio~s or agencies dealing in inter-country adoption in foreign countries. It should not ft therefore be difficult for the Gevernment of India to prepare a list

L.K. PANDEY v. UNION (Bhagwati, J.) 835 ' of social or child welfare agencies licensed or recognised for inter- A country adoption by the Government in various foreign countries. We direct the Government of India to prepare such list within six . months from today and copies of such list shall be supplied by the · Government of India to. the various High Courts in India as also to the social or child welfare agencie> operating in India in the area of inter-country adoption under licence or recognition from the B Government of India. We may of course make it clear that appli- cation of foreigners for appointment of themselves as guardians of children in India with a view to their: eventual ·adoption shall not be. held up until such list is prepared by the Government of India but they shall be processed and disposed of in the light of the ·principles and norms iaid down in this judgment. c We then proceed to consider the position in regard to, biologi- cal parents of the child proposed to be taken in adoption. What are 'the. safeguards which are required to be provided in so far as bio- logical parents are concerned ? We may make it clear at the outset that when we . talk about biological parents, Vie mean botn parents D .if they are together or the mother or the father if either is alone. Now it s~ould-be regarded as an elementary requirement that if the biological parents are known, they should be properly assisted in making a decision about relinquishing the child for adoption, by the Institution or centre or Home for Child Care or social or child wel- fare agency to which the child is being surrendered. Before a dec.ision . E is taken by the biological parents to surrender the chikl for adop- tion, they should be helped to understand all the implications of adoptions including the possibility of adoption by a foreigner and they should be told specifically that in case the child is .adopted, it would not be possible for them to· have any further contact with the child. The biological parents should not be subjected to any duress in making a decision about reli1>quishment and even after they have taken a decision to' relinquish ·ihe child. for giving in adoption~ a further period of about three months should be allowed to them to reconsider their decision. But once the decision is taken and not reconsidered within such further time as may beall owed to them, it must be regarded as irrevocable a11d the procedure for giving the child in adoption to a foreigner can then be initiated without any further reference to'the biological parents by filing .an application for appointment of the foreig!'er as guardian of the child. Thereafter there can be no question of once again consulting the biological parents whether they wish to give the child in adoption IJT they want to take i\ back.· It wou\d be most unfair if after a· tt

836 SUPREME COURT REPORTS . (1984) 2 S.C.R.

A child is approved by a foreigner and expenses are incurred by him for the purpose of maintenance of the child and some times on medical assistance and even hospitalisation for the child, the biologi- cal parents were once again to be consulted for giving them a locus penitentia to reconsider their decision. B.ut in order to eliminate any possibility of mischief and to make sure that the child has in fact B ,heen surrendered by .its biological parents, it is necessary that the Institution or Centre or Home for Child Care or social or child welfare agency tO which the child is surrendered by the biological parents, should take from,the biological parents a document of ·surrender duly signed by the biological parents and attested by at · least two responsible persons and such document of surrender should c not only contain the names of the biological parents and ·their address but also information in regard to the birth of the child and its background, health and development. If the biological parents state a preference for the religious upbringing of the child, their wish should as far as possible be respected, but ultimately the interest of the child alone should be the sole guiding factor and the biologi- D cal parents should be informed that the child may be given in 11dop- . tion even to a foreigner who profe1ses a religion different from that of the biological parents. This procedure can and must be followed where the biological parents are known al)d they relinquish the child for adoption to an Institution or Centre or Home for Child Care or hospital or social or child welfare agency. But where the child is an orphan, destitute or abandoned child and its parents are not known, the Institution or Centre or Home for Child Care or hospi- tal or social or child welfare agency in whose care the child has come, must try to trace the biological parents of the child and if the biological parents can be traced and it is found that they do not want to take back the child, then the .same procedure as outlined above should as far as possible be followed. But if for any · reason the biological parents cannot be traced, then there can be no ques- 7 tion of taking their consent or consulting them. It 'may also be ._).·· - / pointed out that the biological parents should not be imduced or encouraged or even be permitted to take a decision in regard to giving of a child in adoption before the birth of the child or within G a period of three months from the date of birth. This p_recaution is necessary because the biological parents must have reasonable timeafter the birth of the child to take a decision whether to rear up the child themselves or to relinquish it for adoption and more- over it may be necessary to allow some time to the child to over- come any health problems experienced after birth. tt

L.K. PANDEY v. UNION (Bhagwati, J.) 837

We may now turn to consider the safeguards which should be observed in so far as the child proposed to be taken in adoption is concerned. It was generally Mreed by· all parties appearing before the Court, whether as interveners or otherwise, that it should not be open to any and every ageacy or individual to process an application from a foreigner for taking a child in adoption and such application . should be processed only through a social. or child welfare agency licensed or recognised by the Government of India or the Govern- ment of the State in which it .is operating, or to put it differently in the language used by the Indian Council of Social Welfare in the reply filed by it in answer to the writ petition, "all private adoptions conducted by unauthorised individuals or agencies . should be stopped". The Indian Council of Social Welfare and the Tndian c Council for Child Welfare are clearly two social or child welfare agencies operating at the national level and recognised by the Government of India, as appears clearly from theJetter dated 23rd August, 1980 addressed by the Deputy Secretary to the Government of India to the Secretary, Government of Kerela, Law Department, Annexure 'F' to the submissions filed by the Indian Council for Child D Welfare in response to the writ petition. But apart from these two recognised social or child welfare agencies functioning at the national level, there are other social or ·child welfare agencies enga- ged in child care and welfare and if ,they have good standing and reputation and are doing commendable work in the area of child care and welfare, there is no reason why they should not be recog- E nised by the Government of India or the Government of a State for the purpose of ·inter-country adoptions. We would direct the Government of India to consider and decide within a period of three months from today whether any 'of the institutions or agencies which have appeared as interveners in the present \Hit petition are engaged in child care and welfare and if so, whether they deserve to be F recognised for inter-country adoptions. Of course it would be open to the Government of India or the Government of a State suo m©tu or on an application made to it to recognise any other social or child welfare agency for the purpose of inter-country adoptions, provided such social or child welfare agency enjoys good reputation and is known fo~ its work in the field of child care and welfare. G We would suggest that before taking a decision to recognise any particular social or child welfare agency for the purpose of inter- country adoptions, the Government of India or the Government of a State would do well to examine whether the social or child welfare agency has proper staff with pr~fessional social work experience, pecause o\l)erwise it may not be possible for the social or ch.ild wel- H

838 StIPREMB COURT REPORTS (1984] 2 S.C R.

- A fare agency to carry out satisfactorily the highly responsible task of .ensuring proper placement of a child with a foreign adoptive family. It would also be dseirable not to recognise an organisation or agency I

whcih has been set up only for the purpose of placing children in adoption : it is only an organisation or agency which is engaged in the work of child care and welfare which should be regarded as eligible for recognition, since iriter-country adoption must be looked upon not as an independent activity by itself, but as part of child welfare programme so that it may not tend to degenerate into trad- mg. The Government of India or the Government of a State recog- nising any social or child welfare agency for inter-country adoptions must insist as 'a condition of recognition that the social or child welfare agency shall maintain proper accounts which shall be audit- ed by a chartered accountant at the end of every year and it shall not charge to the foreigner wishing to adopt a child any amount in excess of I.hat actually incurred by way of legal or other expen·ses in connection with the application for appointment of guardian including such reasonable remuneration or h9norarium for the work done and trouble taken in processing, filing and pursuing the appli- cation as may be fixed by the Court.

Situations may frequently arise where a child may be in the care of a child welfare institution or centre or social or child welfare · agency which has not been recognised by the Government. Since an application for appointment as guardian can, according to the princi- ples and norms laid down by us, be processed only by a recognised social or child welfare agency and none else, ariy unrecognised in-. stitution, centre or agency which has a child under its care would have to approach a recognised social •Of child welfare agency if it desires such child to be given in inter-country adoption, and in that event it mnst send witho.ut any· undue delay the name and particulars . ,/ _), -.+ of such child to the recognised social or child welfare agency through which such child is proposed to be given in inter-country adoption. r Every recognised social or. child welfare agency must maintain a register in which the names and particulars of all children proposed to be given in inter-country adoption through it must be entered and in regard to each such child, the ·recognised social or child welfare agency must prepare a child study report through a professional ) social worker giving all relevant information in regard to the child so as to help the foreigner to come to a decision whether or not to adopt the child and to understand the child, if he decides to adopt it as also to assist the court in coming to a decision whether it will be for the welfare of the child to be given in adoption to th~ H

L.K. PANDEY v. UNION (BhagWati, J.) 839 foreigner wishing to adopt it. The child study report should con- A tain as far as possible information in regard to the following matters :

"(!) Identifying information, supported where possible by documents. B (2) Information about original parents, including their health and details of the mother's pregnancy and birth.

(3) Physical, intellectual and emotional development. . c (4) Health ·report prepared by a reg\stered medical practitioner preferably by a paediatrician. ~·

(5) Recent photograph.

· (6) Present environment - category of care {Own D home, foster home, institution etc.) relationships; routines and habits.

(7) Social worker's assessment and reasons for suggest· ing inter· country adoption;"

... The government of India ·should, with the assistance . Of the Government of the States, prepare a list of recognised social or child welfare agencies with their names, addresses and other particulars E

and send such list to the appropriate department of the Goverihhent of each foreign country where Ihdian children are ordinarily taken in adoption so that the social dr child welfare agencies licensed ot recognised by the Government of such foreign country for °inter· country adoptions, would know which social or child welfare agency in India they should approach for processing an· application of its national for taking an Indian child in adoption. Such list shall also be sent by the Government ~of India to each High Court with · a requ\'st to forward it to the district courts within its jurisdiction so that the High Courts and the district courts in the country would know which are the recognised social or child welfare agencies a entitled to process an applic'atioh for' appointment of foreigner as guardian. Of course, it would be desirable if a Central Adoption Resource Agency is set up by the Government of India with regiO-· nal .branches at a few centres which are active in inter·coiintty H

140 SUPREME COURT REPORTS [1984] 2 s.c R.

A adoptions. Such Central Adoption Resource Agency can act as a clearing house of information in regard to children available for inter-country adoption and all applications by foreigners for taking Indian children in adoption can then be forwarded by the social or child welfare agency in the foreign country to such Central Adoption Resource Agency and the latter can in its turn forward them to one B or the other of the recognised social or child welfare agencies in the country. Every social or child welfare agency taking children under its care can then be required to send to sucb Central Adoption Resource Agency the names and particulars of children under its care who are available for adoption and the names and. parti£ulars SJf such children can be entered in a register to be maintained by c such Central Adoption Resource Agency. But until such Central ·Adoption Resource Agency is set up, an application of a foreigner for taking an Indian child in adoption must be routed through a recognised social ot child welfare agency. Now before any such application from a foreigner is considered, every effort must be made D by the recognised social or child welfare agency to find placement for the child by adoption in an Indian family. Whenever any Indian family approaches a recognised social or child welfare agency for taking a child in adoption, all facilities must be provided by such social or child welfare agency to the Indian family to have .a look at the children available with it for adopt'on and if the Indian E family wants to see the child study report in respect of any particular child, child study report must also be made avail- able to the Indian family in order to enable the Indian family to decide whether they would take the child in adop- ;; tion. It is only if no Indian family comes forward to take a child in adoption within a maximum period of two months that the child F. may be regarded as available for inter-country adoption, subject only to one exception, namely, that if the child is handicapped or is in bad state of health needing urgent medical attention, which is not possible for the social or child welfare agency ·looking after the child to provide, tbe recognised social or child welfare agency need not wait for a period of two months and it can and must take G immediate step.s for the purpose of giving such child in inter-country adoption. The recognised social or child welfare agency should, on receiving an application of a foreigner for adoption through a licen- sed or recognised social or child welfare agency in a foreign country, consider which child would be suitable for being given in adoption to the foreigner and would fit into the environment of his family and community and send the photograph and child study report of such child to the forei!lner for the purpose of obtaining . hi~

t.k. PANDEY v. UNION (Bhagwati' j,) 84i approval to the adoption of such child. · The practice of accepting A a general approval .of the foreigner to adopt any child should not be ··r- allowed, because it is possible that if the foreigner has not seen the ph·Aograph of the child and has not studied the child study report and a child is selected for. him by the recognised social or child welfare agency in India on the basis of his general approval, he may on the 2.rrival of the child in his country find that he does not like B the child or that the child is not suitable in which event the interest of the child would be seriously prejudiced. The recognised social or child welfare agency must therefore insist upon approval of a specific known child and once that approval is obtained, the recognised social or child welfare agency should immediately without any undue delay proceed to make an application for appointment of the foreig· c ner as guardian of the chiid. Such application would have to be made in the court within whose jurisdiction the child ordinarily . _Jr'- resides and it must be accompanied by copies of the h!)me study report, the child study report and other certificates and documents forwarded by the social or child welfare agency sponsoring the application of.the foreigner for taking the child in adoption. D .( Before we proceed to consider what procedure should be followed by the court in dealing with an application for appointment of a foreigner as guardian of a child, we may deal with ·a point of· doubt which was raised before us, namely, whether the social or child welfare agency which is looking after the child should be entitled to receive from the foreigner wishing to take the child in adoption any amount in respect of maintenance of the child or its medical expen- ses. We were told that .there are instances where large amounts are demanded by so called social or child welfare agencies or indi· viduals in consideration of giving a child in adoption and often this is done under the label of maintenance charges and medical expenses supposed to have been incurred for the child. This is a pernicious practice which is really nothing short of trafficking in children and . it is absolutely necessary to put an end to it by introducing adequate safeguards. There can be no doubt that if an application Of a a foreigner for taking child in adoption is required to be routed . through a recognised social or child welfare agency and the necessary steps for the purpose of securing appointment of the foreigner as guardian of the child have also to be ttken on\y through a reognised social or child welfare agency, the possibility of any so called social or child welfare agency .or individual trafficking in children by demanding exhorbitant amounts from prospective adoptive parents under the guise of maintenance charges and medical expenses or H

842 SUPREME COURT REPORTS (1984] 2 s.c.tl..

A otherwise, would be almost eliminated. But, at the same time, it would not he fair to S)lggest that the social or child welfare agency which is looking after the child should not be entitled to receive any amount from the prospective adoptive parent, when maintenance and medical expenses in connec:ion with the child are actually incurred by such social or child welfare agency. M~ny of the social B or·child welfare agencies running homes for children have little financial resources of their own and have to depend largely on volun· tary donations and therefore if any maintenance or medical expenses are incurred by them on a child, there is no reason why they should not be entitled to receive reimbursement of such maintenance and m_edical expenses from the foreigner taking the- child in adoption. c We would therefore direct that the social or child welfare agency which is looking after the child selected by a prospective adoptive parent, _may legitimately receive from such prospective adoptive parent maintenance expenses at a rate not exceeding Rs. 60 per day (this outer limit being subject to revision by the Ministry of Social Welfare, Government of India from time to time) from the date of selection of the child by him until the date the child leaves for going to its new home as also medical expenses including hospi- ). talisation charges, if any, actually incurred by such social or child welfare agency for the child. But the claim for payment of such maintenance charges and medical cxponses shall be rnbrnitted to the prospective adoptive parent through the recognised social or child welfare agency which has processed the application for guardianship and payment in respect of such claim shall not be received directly by the social or child welfare agency making the claim but shall be paid only through the recognised social or child welfare 2gency. This procedure will to a large extent elim;_nate trafficking in children for money or benefits in kind and we would therefor< direct that this procedure shall be followed in ihe future. But while giving this direction, we may make it clear that what we have said should not be interpreted as in any way preventing a foreigner from making voluntary donation to any social or child welfare agency but no such donation from a prospective adoptive parent shall be received until after the child has reached the country of its prospective adoptive parent.

It is also necessary to point out that the recognised social or child welfare agency through which an application of a foreigner for taking a child in adoption is routed must, before offering a child in adoption, make sure_ that the child is free to be adopted. Where the· H parents have relinquished the child for adoption and there_ is a docu-

l..IC. PANDEY v. UNION (Bhagwati, J.) 843

ment of surrender, the child must obviously be taken to be free for A adoption. So also where a child is an otphan or destitute or abandoned child and it has not been possible by the concerned social or child welfare agency to trace its parents or where the child is committed by a juvenile court to an institution, centre or home for committed childre~ and is .declared t_o.be a destitute by the juvenile court, it must be regarded as free for adoption. The recog- B nised social or child welfare agency must place sufficient material . before the court to satisfy it that the child is legally available for rhe adoption. It is also necessary that the recognised welfare agency must satisfy itself, firstly, that there is no impediment in the way of the child entering the country of the prospective adoptive parent ; secondly, that the travel documents for the child can be obtained at c the appropriate time and lastly, that the law of the country of the prospective adoptive parent permits legal adoption of the child and that no such legal 'adoption being concluded, the child would acquire the same legal status and rights d inheritance as a natural born child and would be granted citizenship in the country of adop- D tion and it should file along with the application for guardianship, a certificate reciting such satisfaction.

We may also at this stage· refer to one other question that was raised before us, namely, whether a child under the care of a social or child welfare agency or hospital or orphanage in one State E can be brought to another State by a social or child welfare agency

... for t.hc purpose of being given in adoption and an application for appointment. of a guardian of such child can be made in the court of the latter State. This question was debated 'before us in view of the judgment given by Justice Lentin of the Bombay High Court on 22nd July, 1982 in Miscellaneous Petition No. 178 o'f 19&2 and other allied petitions. We agree with Justice Lentin that the . practice of social or child welfare agencies or individuals going to different States for the purpose. of collecting children for being given in inter-country adoption is likely to lead to considerable abuse, because it is possible that such social or child welfare agencies or individuals may, by offering· monetary inducement, persuade indigent parents to part with their children and then give the children to foreigners in adoption by demanding a higher price, which the foreigners in their anxiety to secure a child for adoption may be willing to pay. But we ·do not think that if a child is relinquished by its biological parents or is an orphan or destitute or abandoned child in its parent State, there should be any objection to a social or child welfare agency taking the child to another State, even if H

844 . SUPREME COURT REPoRts [1984] 2 s.c.tt .

A the object be to give it in adoption, provided there are sufficient safeguards to ensure that such social or child welfare agency does not indulge many mal·practice. Since we are directing that every application of a foreigner for taking a child in adoption shall be routed only through a recognised social or .child welfare agency and an application for appointment of the foreigner as guardian of the B child shall be made to the court only through such recognised social or child welfare agency, there would hardly be any scope for a social or child welfare agency or individual who brings a child from another State for the purpose of being given in adoption to indulge in trafficking and such a possibility would be reduced to almost nil. Moreover before proposing a child for adoption, the c recognised social or child welfare agency must satisfy itse If that the child has either been voluntarily relinquished by its biological parents without monetary inducement or is an orphan or destitute or abandoned child and for this purpose, the recognised social or child welfare agency may require the agency or individual who has the care and custody of the child to state on oath as to how he came by the child and may also, if it thinks fit, verify such statement, by directly enquiring from the biological ) parents or from the child care centre or hospital or orphanage from which the child is taken. Thi.s will considerably reduce the possi- bility of abuse while at the same time facilitating placement of children deprived of family love and care in smaller towns and rural areas. We do noi see any reason why in cases of this kind where a child ·relinquished by its biological parents or an orphan or destitute or abandoned child is brought by an agency or individual from one State to another, it should not be possible to apply for guardian' ship of the child in the court of the latter State, because the. child not having any permanent place of residence, would then be ordi- F narily resident in the place where it is in the care and custody of such agency or .individual. But, quite apart from such· cases, we are of the view· that in all cases where a child is proposed to be given in adoption, enquiries regarding biological parents, whether they are traceable or not and if traceable, whether they have volun- tarily relinquished the child and if not, whether they wish to take the G child back, should be completed before the child is offered for adop- tion and thereafter no attempt should be made to trace or contact the biological parents, This would obviate the possibility of an ugly and unpleasant situation of biological parents coming forward to claim the child after it has been given to a foreigner in adoption. It is also necessary while considering placement of a child in adop- H tion to bear in mind that brothers and sisters or children who have

t.k. PANDEY v. tJNION <iJhagwali, J.) 845

been brought up as siblings should not be separated· except for special reasons and as soon as a decision to give a child in adoption to a foreigner is finalised, the recognised social or child welfare agency must if the ·child has reached the age of understanding, take steps to ensure that the child is given proper orientation and is prepar- ed for going to its new home in a new country so that the assimilation B of the child to the new environment is facilitated.

·we mdst emphasize strongly that the ·entire procedure which we have indicated above including preparation of child study report, making of necessary enquiries and taking of requisite steps leading upto the filing of an application for guardianship of the ·child pro- c posed to be given in adoption, must be completed expeditiously so that the child does not have to remain in the care and custody of a

.. social or child welfare agency without the warmth and affection of family life, longer than is absolutely necessary .

We may also point out that if a child is to be given in inter- D country adoption, it would be desirable that it is given in such adoption as far as po;sible before it completes the age of 3 years. The reason is that if a child is adopted before it attains the age of understanding, it is always easier for it to get assimilated and inte- grated in the new environment in which it may find itself on being adopted by a foreign parent. Comparatively it may be some what E difficult for a grown up child to get acclamatized to new surround-

... ings· in a different land and some times a problem may also arise whether foreign adoptive parents would be able to win the love and affection of such grown up child. But we make it clear that we say this, we do not wish to suggest for a moment that children above the age of three years should not be given in inter-country adoption. F There can be no hard and fast rule in this connection. Even child- ren between the ages of 3 and 7 years may be able to assimilate themselves in the new surroundings without any difficulty and there is no reason why they should be denied the benefit of.family warmth and affection in the home of foreign parents, merely because they are past the age of 3 years. We would suggest that even children G above the age of 7 years may be given in inter-country adoption but we would recommend that in such cases, their wishes may be ascer- ( tained if they are in a position ·to indicate any preference. The statistics placed before us sh6w that even children past the age of ·7 years have been happily· integrated in the family of their foreign adoptive parents .. H

S46 SUPREME COURT REPORTS i!984) 2 SC.R. v Lastly, we come to the procedure to be followed by the court when an adp!ication for guardianship of a child is made to it. Section ll of the Guardians and Wards Act, 1890 provides for notice of the application to be issued to various persons including the parents of the child if they.arc residing in any State to which the Act extends. But. we are definitely of the view that no notice under B this section should be issued to the biological parents of the child, since it .would create considerable amount of eml;)arrassment and hard ship if the biological parents were then to come forward and oppose the application of the prospective adoptive parent for guardianship of the child. Moreover, the biological parents would then come to know who is the person taking the child in adoption and with this c knowledge they .would at any .time be able to trace the whereabouts of the child and they may try to contact the child resulting in emo- tional and psychological disturbance for the child which might affect his future happiness. The possibility also cannot be ruled'out that if the biological parents know who are the adoptive parents they may try to extort money from the adoptive parents. It is therefore abso- D lutely essential that the biological parents should not have any opportunity of knowing who are the adoptive parents taking the ) child in adoption and therefore notice of the application for guardianship should not be given to the biological parents. We whould direct that for the same reasons notice of the application for guardianship should also not be published in any newspaper. Sec• tion 11. of the Act empowers the courno serve notice of the appli- cation for guardianship on any other person to whom, in the opi- nion of the court, special notice of the application should be given and in exercise of this power the court should, before entertaining an application for guardianship, give notice to the Indian Council of Child Welfare or the Indian Council for Social Welfare or any of its branches for scrutiny of the application with a view to ensuring that it will be for the welfare of the child to be given in adoption to the foreigner making the application for guardianship. The Indian Council of Social Welfare or the Indian Council of Child Welfare to which n~tice is issued by the court would have to scrutinise the application for guardianship made on behalf of the foreigner wish- G ing to take the child in adoption and after examining the home ;tudy report, the child study report as also documents and certi- ficates forwarded by the sponsoring social or child welfare agency and making necessary enquiries, it must make its representation to the court so that the C01lft may be able to satisfy itself whether t.he principles and norms as also the procedure laid down by us in this judgment have been observed and followed, whether the foreigner

t.k. PANDEY v. UNION (Bhagwati, J.) 841 will be a suitable adoptive parent for the child and the child will he able to integrate and assimilate itself in the family and community. of the foreigner and will be· able to get warmth "nd affection of family life as also moral and material stability and security and 0

wh<ther it will be in the.interest of the child to be taken in adop- tion by the foreigner. If the court i.s satisfied, then ·and then only it will make an order appointing the foreigner as guardian of .the child and permitting him to remove the child to his own country with a view to eventual adoption. The court will also introduce a condition in. the order that the foreigner who is appointed guardian shall make proper provision by way of deposit or bond or otherwise to enable the child to be repatriated to India should it become necessary for and reason. We may point out 1hat such a provision c . is to be found in clause 24 of the Adoption of Children Bill No. 208 of 1980 and in fact the practice of taking a bond from the foreigner who is appointed guardian of the child is being foloweld by the courts in Delhi as a result of practice instructions issued by the High Court of Delhi. The order will also include a condition that the foreigner who is appointed guardian shall submit to the Court D as also to the Social or Child Welfare Agency processing the appli- cation for guardianship, progress reports of the child along with a recent photograph quarterly during the first two years and half yearly for the next three years. The court may also while making the order permit the social or chi.Id welfare agency which has taken care of the child pending its selection for adoption to receive such amount as the Court thinks fit from the foreigner who is appointed guardian of such child. The order appointing guardian shall carry, attached to it, a photograph of the child duly counter-signed by an officer of the court. This entire procedure shall be completed by the court cxpediticusly and as far as possible within a period of. two months fro.m the date of filing of the application for guardianship of the child. The proceedings on the application for guardianship should be held by the Court in camera and they should be regarded as confidential and as soon as an order is made on the"appl;cation for guardianship the entire proceedings including the papers and docu- ments should be sealed. When an order appointing guardian of a child is made by the court, immediate intimation of the same shall be given to the Ministry of Social Welfare, Government of India as ..{ also to the Ministry of· Social Welfare of the Government of the State in which the court is situate and copies of such order shall also be forwarded to the two respective ministries of Social Welfare. The Ministry of Social Welfare, Government of India shall maintain a register containing names and other particulars of the children in

SUPREME COURT REPORRS il984j 2 s.c.1.t A respect of whom orders for appointment of guardian have been made as also names, addresses and other particulars of the prospective adop- tive parents who have been appointed such guardians and who have been permitted to take away the children for the purpose of •dop- tion. The Government of India will also send to the Indian Embassy or High Commission in the country of the prospective adoptive parents B from time to time the names, addresses and other particulars of such prospective adoptive parents together with particulal'S of the children taken by them and requesting the Embassy or High Commission to + maintain an unobtrusive watch over the welfare and progress of such children in order to safeguard against any possible mal-treatment, ; --\__ exploitation or use for ulterior purposes and to immediately report c any instance of mal-treatment, negligence or exploitation to the Government of India for suitable action. 1 We may add even at the cost of repeatition that the biological parents of a child taken in adoption should not under any circum- stances be able to know who are the adoptive parents of the child nor should they have any access to the home study report or the child study report or the other papers and proceedings in the application for guardianship of the child. The foreign parents who have taken ) a child in adoption would normally have the child study report with them before they select the child for adoption and in case they do not have the child study report, the same should be supplied to them by the rec0gnised social or child welfare agency processing the application for guardianship and from the child study report, they would be able to gather information as to who are the biological parents of the child, if the biological parents are known. There can be no objection in furnishing to the foreign adoptive parents particulars in regard to the biological parents of the child taken in adoption, but it should be made clear that it would be entirly at the discretion of the foreign adoptive parents whether and if so when, to inform the child about its biological parents. Once a child is taken in adoption by a foreigner and the child grows up in the surroundings of the country of adoption and becomes a part of the society of that country, it may not be desirable to give information to the child abcut its biological parents whilst it is young, as that might have the effect of exciting his curiosity to meet its biological parents resulting in unsettling effect on its mind. But if after attain- ing the age of maturity, the child w,ants to know about its biological parents, there may not be any serious objection to the giving of such information to the child because after the child attains maturity, it is not likely to be easily affected by such information and in such a

L.K. PANDEY v. UNION <Bhagwati, J.) 849

case,. the foreign adoptive parents may, in exercise of their discre· A tion, furnish such information to the child if they so think fit.

The•e are the principles and norms which must be observed and the procedure which must be followed in giving a child in adop- tion to foreign parents. If these principles and norms are observed and this procedure is followed, we have no doubt that the abuses to B which inter-country adoptions, if allowed without any safeguards, may lend themselves would be considerably reduced, if not elimi- nated and the welfare of the child would be protected and it would be able to find a new home where it can grow in an atmosphere of warmth and affection of family life with full opportunities for physical intellectual and spiritual development. We may point out that the c adoption of children by foreign parents need not wait until social or child welfare agencies are recognised by the Government as directed in this ·order, but pending recognition of social or child welfare agencies for the purpose ' of inter·-country adoptions, which inter- regnum, we hope; will not last for a period of more than two months, any social or child welfare agency. having the care and custody of a D child may b.e permitted to process an application of a foreigner, but barring this departure the rest of the procedure laid down by us shall be followed wholly and the principles and norms enunciated by us in this Judgment shall be observed in giving a child in inter-country adoption. E The writ pettition shall stand disposed of in these terms. Copies of this 'order shall be sent immediately to the Ministry of Social Welfare of the Government of India and the Ministry of Social Welfare of each of the State Governments as also to all the High Courts in the country and to the Indian Council of Social Welfare and the Indian Council of Child Welfare. We would direct F that copies of this Order shall also be supplied to the Embassies and Diplomatic Missions of Norway, Sweden, France, Federal Republic of · Germany and the United States of America and the High Commis- sions of Canada and Australia for their informations si,nce the statistics show that these are the countries where Indian children are taken in adoption. G { S.R.

850 SUPRBMB COURT REPORTS [1984} 2 S.C.R. A

ANNEXURE-'A' B

1Copy pinpoint1. Source of Referral. • ~· Nu~ber of single and joint interviews.

3Copy pinpoint3. Personality of husband and wife. c

4Copy pinpoint4. Health details such as clinical tests, heart condition, past illnesses etc. (medical certificates required, sterility certi- ficate required, if applicable), · I

5Copy pinpoint5. Social status and family background. D

6Copy pinpoint6. Nature and Adjustment with occupation. · )

7Copy pinpoint7. Relationship with community.

8Copy pinpoint8. Description of home. E

9Copy pinpoint9. Accommodation for the child.

JO. Sch<>oling facilities.' ::

11Copy pinpoint11. Amenities in the home.

12Copy pinpoint12. Standard of living as it appears in the home.

13Copy pinpoint13. Type of neighbourhood.

14Copy pinpoint14. Current relationship between husband and wife.

15Copy pinpoint15. (a) Current relationship between parents and children (if any children).

(b) Development of already adopted children (if any) and their acceptance of the child to be adopted.

16Copy pinpoint16. Current relati~nship between the couple and the members of each other's families,

L.K. PANDEY v. UNION <Bhagwati, J.) 851

17, If the wife is working; will she be able to give up the job? A

18Copy pinpoint18. If she. cannot leave the job, what arrangements will she make to look after the child ?

19Copy pinpoint19. Is adoption considered because of sterility of one of the maritial partners ? B

+ 20. If not, can they eventually have children of their own ?

21Copy pinpoint21. If a child is born to them, how will they treat the adopted child? c

22Copy pinpoint22. If the couple already has children how wiJI these children react to an adopted child ?

23Copy pinpoint23. Important social and psychological experiences which . have had a bearing on their desire. to adopt a child.

24Copy pinpoint24. Reasons for wanting to adopt an Indian child . ( .

25Copy pinpoint25. Attitude of grand-parents'. and relatives towards the adoption.

26Copy pinpoint26. Attitude of relatives, friends, community and neighbour- E hood towards ·adoption of an Indian child.

27Copy pinpoint27. Anticipated plans for the adopted child.

28Copy pinpoint28. Can the child be adqpted according to the adoptio~ law in the adoptive parents country? Have they obtained the necessary permission to adopt ? (Statement of permis- sion required.)

29Copy pinpoint29. Do the adoptive parents know any one who adopted a child from their own country or ariother country ? Who are they ? From where did they fail. to get a child from that source ?

30Copy pinpoint30. Did the couple apply for a child from any other source ? If yes, which source ?

·31. What type of child is the couple interested in ? (sex, age, and for what reasons.) ff

. 852 SUPREME COURT REPORTS [!984] 2 S.C R• ).

32Copy pinpoint32. Worker's recommendation concerning the family and the type of child whkh would best fit into this home. ""'+.

33Copy pinpoint33. Name and address of the agency conducting the home B study. Name of social worker, qualification of social worker.

34Copy pinpoint34. Name of agency responsible for post placement,. super- • c vision and follow up. Y--";;