In the contemporary social construct, children have been subjected to abuse, labor, and maltreatment. There also exist children who were either neglected or surrendered by their parents. Due to this constant turmoil that children are subjected to regularly, there arises a need for an efficient and effective children welfare and protection mechanism. However, the question arises: is there an effective and efficient infrastructure in India to cater to the needs of such children? Thus, firstly, this blog post summarizes the existing policies and infrastructure for foster care and alternative childcare in India. Secondly, this blog post draws a comparative analysis with U.S.’s infrastructure for foster care for a comprehensive perspective. Thirdly, this blog post suggests ways for improving the scenario of foster care infrastructure and enhanced implementation of existing laws in India.
Introduction: National and International Embracement of Non-Institutional Childcare
“Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family.” From the judgment mentioned above, the Supreme Court (S.C.) lucidly expressed that children’s best interest lies in their right to family. The provision of non-institutional care to children was subsequently endorsed in Bachpan Bachao Andolan v. Union of India. In this case, S.C. suggested that the government should implement schemes and provide sponsorships to establish efficient foster care for children at ground levels. Thus, S.C. has embraced non-institutional family-based care to protect the best interest of children. The non-institutional alternative care broadly covers adoption and foster care. While adoption creates a legal relationship between the child and the adoptive parents, foster care is a temporary set-up where a child is placed with a family other than its biological family for alternative care. However, it continues to remain the legal responsibility of the State and the biological parents.
Children’s right to family and non-institutional care is also globally advocated across various jurisdictions. A study suggests that children in institutional care experience delays in psychological and behavioral development primarily because the childcare institutions are overcrowded, resulting in a disregard for children’s individual growth and a lack of affection, nutrition, and medical care. Thus, it was suggested that there is a need to shift from institutional care to family-based care, i.e., foster care. Consequently, children’s rights jurisprudence evolved, acknowledging and establishing the relevance of non-institutional care for children.
Children’s right to family care was recognized globally in the UN Convention on the Rights of the Child (UNCRC), 1989, and in the UN Guidelines for Alternative Care 2009 (UN Guidelines). The UNCRC provides that if a child’s biological family does not have sufficient means to provide welfare, care, and protection, then that child has an absolute right to alternate family. The UNCRC also provides that the government should render assistance to guarantee and promote children’s rights and develop institutions, facilities, and services for their care. This principle is also endorsed under articles 4  and 5  by the UN Guidelines. They also provide that moving children to institutional care should be the last option and should be exercised only in extreme circumstances for immediate relief.
The Constitution of India recognizes and protects children’s rights  and directs the states to frame policies to secure their rights. Children’s right to family care was also recognized by the Government of India, which led to establishing a comprehensive legal regime concerning foster care. The concept of foster care was first statutorily recognized in India in 2000 under the Juvenile Justice (Care and Protection of Children) Act, 2000, which provided foster care as “temporary placement of those infants who are ultimately to be given for adoption.” The definition was narrow as it restricted foster care to only those “infants” who are finally considered for adoption. This definition was amended in 2015 by enacting the Juvenile Justice (Care and Protection of Children) Act, 2015 (2015 Act), which marks a significant development in children’s rights and infrastructure in India. The 2015 Act defines “child” as a person who has not completed 18 years  and provides two categories of child: (i) “child in conflict with law,” i.e., a child who is alleged or found to have committed an offense, and (ii) “child in need of care and protection” which includes, a child who is without any home or any ostensible means of subsistence. The 2015 Act recommends foster care as a measure for “rehabilitation and social reintegration of child in need of care and protection” and expands the scope of foster care and extends it to a child below 18. As opposed to institutional care, the principle of foster care is also enshrined under the National Policy for Children, 2013 (NPC).
However, despite significant legal developments regarding children’s rights and foster care, the concept has failed to provide effective and efficient family-based care to children in India. The number of children who require care and protection remains high. This is primarily because of the ineffective and inefficient implementation of the 2015 Act, lack of awareness about foster care and other alternative care in India, lack of initiative by State Governments and local authorities to develop foster care programs, and lack of counseling for parents and children. Therefore, the establishment of an efficient infrastructure at grounds levels for implementing an effective foster care system is required for the following reasons – to cater to the best interests of children; to secure their childhood; and to ensure that they are raised with a family that can provide them with affection, food, healthcare, shelter, and education.
Policies and Infrastructure for Foster Care: A View from the Indian Lens
The National Policy for Children, 2013
The Government of India adopted the NPC in 2013 to promote and safeguard children’s rights. The Policy recognizes that children have the right to be raised in a family environment as it is beneficial to their growth. Due to this, children should never be separated from their biological family unless it is required in the children’s best interest. The “best interest of children” is defined as “the basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being, and physical, emotional and intellectual development.” Thus, NPC advocates that children can be separated from their biological family and placed in foster care if required in their best interest. In this regard, NPC compels the Indian states to take necessary steps to secure children’s rights deprived of parental care and ensure that family and community-based care and protection are available. The states are also mandated to track, rescue, rehabilitate, and provide access to education to children working in factories, streets, or are victims of child trafficking. Besides imposing an obligation on the state governments to provide adequate infrastructure for children’s care, protection, and growth, NPC also suggests that the states and other stakeholders promote children’s rights and spread awareness amongst families, parents, and caregivers.
Therefore, NPC does not merely acknowledge and recognize children’s rights but also obligates the state governments to spread awareness and develop adequate infrastructure for the effective implementation of these rights.
Rehabilitation and Social Reintegration of Children under the Juvenile Justice Act, 2015
The 2015 Act provides the “process of rehabilitation and social reintegration”  and “restoration and protection”  of children in need of care and protection and children in conflict with the law. It provides that rehabilitation and social integration should be done through family-based care based on the individual care plan of each child. The children’s home, Specialized Adoption Agency, or open shelter should take necessary steps to restore and protect children deprived of their families. The term “restoration and protection of a child” is defined as “restoration to parents, adoptive parents, foster parents, guardians, or fit person.” 
The 2015 Act provides the following homes for rehabilitation of children in need of care and protection: (i) “open shelter,” a community-based facility, to provide temporary shelter to children with no other place to reside;  (ii) “foster care and group foster care” to provide alternate care to children in the domestic environment  wherein the selection of the foster family will be based on family’s commitment, capacity, and prior experience;  (iii) “children’s home” to ensure care, treatment, education, training, development, and rehabilitation;  and (iv) “fit facility” to take children’s responsibility for a specific purpose temporarily. 
Regarding the placement of children in conflict with the law, the 2015 Act makes provisions for temporary reception, care, and rehabilitation of children in observation homes,  special homes, and places of safety.  The 2015 Act also advocates adoption as a resort to provide family-based care to an orphan, surrendered, and abandoned (OAS) child. 
To facilitate the rehabilitation of children, the 2015 Act also makes provision for sponsorship and financial support to families and other childcare facilities to adequately meet the children’s medical, educational, nutritional, and other needs.  In this regard, Child Adoption Resource Information and Guidance System (CARINGS)  has been established; it is an online information system to facilitate, guide, and monitor adoption under the 2015 Act.
The Juvenile Justice (Care and Protection of Children) Model Rules, 2016 (2016 Rules) provides rules in relation to implementing foster care in India at the district level. It provides that each district will have the District Child Protection Unit (DCPU), which would be the nodal authority for implementing a foster care program in that district. 
Rule 44 provides that the children between 0 to 6 years of age should not be considered for foster care as they should be provided a permanent family through adoption; however, the following children should be considered for foster care: (i) children between 6 to 8 years of age, who were not adopted for at least two years; (ii) children between 8 to 18 years of age, who were not adopted for at least one year; and (iii) children with special needs, who were not adopted for at least one year. Additionally, the rule provides that children remaining under foster care for five years may be considered for adoption by the foster parents.
The Model Guidelines for Foster Care, 2016
In accordance with the 2015 Act, 2016 Rules and UNCRC, the Ministry of Women and Child Development (MWCD) notified Model Guidelines for Foster care in 2016 (2016 Guidelines). These guidelines provide: (i) detailed procedure for placement of children in foster care at the district level, (ii) category of children eligible for foster care, (iii) roles and responsibilities of various stakeholders, (iv) training and counseling of children, their foster and biological family, and (v) formats for the administration of foster care such as preparation of individual care plan, child study report, application form, and other related documents.
The guidelines also suggest that the foster families should be provided financial support by the Central and State governments through various schemes and programs, which should not be less than Rs. 2000/month for ensuring proper and adequate childcare. In this regard, the guidelines make provision for establishing Sponsorship and Foster Care Approval Committee (SFCAC) at the district level to review and sanction sponsorship and foster care fund.
The Integrated Child Protection Scheme (ICPS), 2009
In addition to the above laws, the MWCD has also issued an Integrated Child Protection Scheme (ICPS), which reaffirms the children’s right to a family with an objective of “promoting and strengthening non-institutional family-based care options for children deprived of parental care, including sponsorship to vulnerable families, kinship-care, in-country adoption, foster care and inter-country adoption, in order of preference.” This scheme is based on the fundamental principles of “protection of child rights” and “best interest of the child” and aims at strengthening the existing infrastructure for childcare at the national, state, district, and regional levels. ICPS also aims at creating a database and spreading awareness on child protection services, schemes, and structures at all levels to ensure the effective implementation of children’s rights.
ICPS recommends that institutionalization be considered the last resort, and the focus should be on the conscious shift to family-based care. It states that child protection is not an exclusive responsibility of the MWCD, and other sectors have vital roles to play to reach out to all children. Therefore, all stakeholders, including government departments, non-government organizations, institutional groups, academia, and most importantly, families and children, should create a caring and protective environment for children in India.
How the U.S. Established an Effective and Efficient Foster Care Infrastructure: A Guiding Stone for India
When discussing the infrastructure related to foster care, we must also conduct a comparative analysis with international jurisdictions for a comprehensive perspective. In this blog post, we have considered foster care infrastructure in the U.S., as it has one of the most convoluted developments of foster and institutional care for children, due to which, it is rendered as a suitable example for learning lessons that can be incorporated in the Indian regime.
The evolution of foster care in the U.S. dates back to the period before the 1800s. During the pre-1800s period, we comprehend that the treatment and care of children were primarily placed in the discretionary power of the parents, due to which it was deemed a “private matter.” Although laws related to child protection existed that were a mere replica of the English Laws, they were inadequate and inconclusive. This is because they warranted intervention only in cases related to alleviating the family’s poverty which, in turn, improved the children’s condition. These laws ignored the possibility of foster care and direct intervention by the State to assist in the children’s well-being as they, unfortunately, focused on preserving the abusive family environment. This essentially means no per se established “infrastructure” or institutionalization of foster care existed in the U.S. until the 1800s.
In 1823, “House of Refuge” (HoR) was the first institution established for foster care. It was established in New York and primarily catered to the needs of children on the streets, parentless children, and children who committed trivial offenses. However, the conundrum with this institution was that it minutely focused on neglected children. Further, these children’s treatment was highly problematic as they were subjected to “corporal punishment,” wherein they were hanged from their thumbs and severely beaten. Although HoR’s idea became popular and was adopted by other U.S. cities, it soon became overcrowded with regular deteriorating living conditions.
These institutions were based on the principle of “parens patriae,” which meant that the State must step in to protect and care for those who cannot care for their being. In consonance with this principle, HoR was established, though its importance diminished and was gradually replaced with a new institution in 1853: Children Aid Societies (CAS). The idea of this institution was to rescue children; however, its mechanization (or working) remained problematic as it was based on another highly controversial system. In CAS, we comprehend that the native children were removed from their own families and were placed in other families situated in the industrial parts of the U.S. to provide labor. For this purpose, special “orphan trains” were established to transport these children. CAS was based on the idea that it was “saving” children by taking them away from the shackles of urban poverty; however, in reality, it was, unfortunately, inducting native children into the labor force for those parts of the U.S. that had rising labor demands.
Further, it is also imperative to note that the problems posed by HoR and CAS were aggravated as U.S. Courts authorized the development of such institutions and laws for transitioning children into these institutions. However, rather than catering to children’s welfare and protection, as they led to the deterioration of the same, the Indian Child Welfare Act, 1978, was enacted to prohibit the existence of CAS for foster care.
From the infrastructure for foster care mentioned above, we note that their functioning was based on flawed concepts related to child abuse, labor, and maltreatment. Due to this growing abuse and maltreatment, the Society for the Prevention of Cruelty to Children’s (SPCC) first chapter was established in New York in 1875. It aimed to protect the interests and welfare of the children by advocating against child labor, abuse, and other similar reforms. SPCC’s system was contrary to the ones mentioned above as they primarily focused on protecting children by alleviating family poverty, not by instituting safeguards to protect them from abuse and maltreatment like SPCC. This progressive change was the turning point in the U.S.’s history of foster care as, after the Mary Ellen incident, several SPCC chapters were established in the U.S., and by the 1900s, the role of the Federal Government in child welfare and protection solidified, which was absent before the 1900s.
In 1912, the “U.S. Children’s Bureau” was created and was the first department of the U.S. Federal Government exclusively for children’s welfare and protection. To date, it remains the most integral governmental entity responsible for the administration and overseeing of federal child welfare funds and infrastructure and for issuing welfare and protection policies for foster care. In 1935, the Social Security Act (SSA) was passed that essentially ensured the allocation of federal funds to deliver services related to foster care, i.e., services related to child welfare and protection. In other words, now, child welfare and protection services were primarily provided with the help of this federal funding while adhering to the 1935 Act’s provisions. These funds essentially paved the way for establishing child welfare agencies and developing local programs by U.S. states to provide child welfare and protection services. Under SSA, the Aid to Dependent Children Program (ADC) was created to ensure that the U.S. states provide financial assistance to those needy and dependent children of unwed mothers and parents whose behavior was deemed “immoral.” The creation of this Program was to protect these children who were earlier denied such financial assistance. However, ADC Program was later renamed Aid to Families with Dependent Children in 1962 and then replaced with the Temporary Assistance to Needy Families Block Grant Program in 1996. Thus, due to these progressive policies and infrastructure developments, between 1986 and 1995, the number of children in foster care increased from 280,000 to nearly 500,000.
Additionally, it is also imperative for us to discuss the delivery of aid to adolescents that aged out of the foster care system. In 1986, the Independent Living Program was authorized to provide funds to the U.S. states to provide aid to older foster youth to transition from foster care to independence. This program was later expanded and replaced by the Foster Care Independence Act, 1999. Thus, in totality and the present-day scenario, the number of children in foster care has reduced from 435,000 in 2018 to 424,000 in 2019, and the number of children entering foster care has reduced from 263,000 in 2018 to 251,000 in 2019. This, in turn, essentially shows that the requisite funds, programs, and policies have been successful to a certain extent in serving the objective of foster care, i.e., child welfare and protection. This success was by ensuring that these children are not unnecessarily removed from their foster family; adequate efforts are made in the placement of these children with suitable parents; and by regularly monitoring the children’s status and well-being to avoid abuse and maltreatment by foster parents.
The child welfare and protection services, under SSA, were further strengthened by the landmark legislation: Adoption Assistance and Child Welfare Act, 1980. This legislation’s primary intention was to resolve the unnecessary removal of children from their low-income families and the lack of adequate efforts, supervision, and monitoring in foster care. It essentially provided the first-ever federal procedural rules that governed “child welfare case management, permanency planning, and foster care placement reviews.” Further, it also created an “Adoption Assistance Program.” In finality, the Adoption and Safe Families Act, 1997 paved the way for modern child welfare and protection laws and programs as it addressed the following infrastructural problems – prolonged existence of children in foster care; child welfare and protection system based on family preservation rather than child safety, welfare, protection, and well-being; and scanty focus and allocation of resources towards foster care and adoption for neglected, maltreated and abused children. In other words, it ensured that the government’s financial and policy investments are in the direction of protecting children’s welfare through appropriate delivery mechanisms.
When we compare the U.S. scenario with that of India, we comprehend that the U.S. transitioned from a dilapidated to a relatively enhanced foster care system by incentivizing child welfare agencies and services through financial, policy, and delivery support from the Federal Government. In India, although we observe the existence of adequate laws, policies, guidelines, and a plethora of schemes at a national and state level, we also note their poor delivery at the grass-root level as there exist inadequate monitoring systems and a lack of financial incentives for foster care. Therefore, drawing a learning lesson from the U.S., India can put efforts and improve its implementation mechanism of child welfare and protection schemes by providing financial incentives to Indian states that shall, in turn, incentivize the child welfare and protection agencies into providing better foster care services with stringent monitoring systems.
Conclusion: Role of Foster Care Agencies and the Inevitable Need of Assistance from State and Local Authorities
Considering the preceding arguments, we comprehend that foster care is still in its nascent stage in India. We must also note that foster care is expected to gain momentum due to enacting laws and policies such as the 2015 Act, 2016 Guidelines, 2016 Rules, and other related statutes that have rendered the institutionalization of childcare as a last resort. In other words, these laws and policies have rooted and advocated for the development of non-institutional childcare infrastructure in India, i.e., foster care. However, the first point of conundrum that arises is that despite having comprehensive childcare infrastructure schemes and policies, the Indian regime loses out on its delivery mechanism. For example, according to several reports, we comprehend that neither the children nor the parents are prepared, counseled, and groomed for foster care by foster care agencies. Due to this lack of preparation, these children are returned to foster care which, in turn, overcrowds and overburdens these places. It also psychologically affects the children because now, it would lead to the creation of inherent insecurity and inability to trust and love. This psychological effect hampers the children’s mental state and their prospects of moving out of foster care. Further, we also comprehend that the parents have a cognitive bias towards taking in infants only, due to which teenagers and adolescents are often disregarded and ignored.
In such scenarios, the foster care agencies are at fault due to their inability to invest adequate efforts and establish a strict follow-up monitoring mechanism. Thus, there arises an inevitable need for these foster care agencies to conduct awareness campaigns and counseling sessions for both parents and children to identify their needs and prepare them for this process. These campaigns and sessions would enable the children to obtain their much deserving right to family and enable the family to experience the joy of familial bonding. Additionally, the onus also falls on the state and local authorities to provide the requisite funding to these foster care agencies for their maintenance, upkeeping, and follow-up processes, as failure to do the same has led to a disgruntled functioning of these agencies. In finality, these authorities must also support foster care agencies in spreading awareness and assisting in counseling sessions by tapping into their professional networks and financial resource banks.
The second point of conundrum that arises is that, in India, adoption takes place through an online system: CARINGS. Parents are provided with the list of children, out of which they are required to select one child and carry on with the remaining documentation and compliance requisites. However, amid this convenient online process, the one-on-one human personal touch and interaction is lost that is, in reality, quintessential in identifying the compatibility and suitability between parents and the child. Thus, in addition to this online process for adoption, a few personal, one-on-one sessions between the child and the parents must be made mandatory to ensure the suitability, compatibility, and commitment levels.
Therefore, in a nutshell, conducting awareness campaigns and counseling sessions by foster care agencies, with the assistance of state and local authorities’ professional network and financial resources bank accompanied by government financial stimuli, is of quintessence importance in destigmatizing the society about foster care and establishing a progressive infrastructure for childcare welfare and protection.
About the Authors
Ms. Aakriti Dwivedi is an Associate at Tuli & Co., New Delhi.
Pushpit Singh is a 2nd-year student at Symbiosis Law School, Hyderabad, and is an Associate Editor at IJPIEL.
Managing Editor: Naman Anand
Editors-in-Chief: Akanksha Goel and Aakaansha Arya
Senior Editor: Gaurang Mandavkar
Associate Editor: Pushpit Singh
Junior Editor: Vidhi Saxena
Preferred Method of Citation
Aakriti Dwivedi and Pushpit Singh, “Childcare in India: Is the Current Infrastructure Adequate for Child Welfare and Protection?” (IJPIEL, 16 June 2021)
 Laxmikant Pandey v. Union of India, AIR 1984 SC 469.
 Bachpan Bachao Andolan v. Union of India, AIR 2011 SC 3361.
 K.V. Muthu v. Angamuthu Ammal, AIR 1997 SC 628.
 Keeping Children Out of Harmful Institutions: Why We Should Be Investing in Family Based Care, SAVE THE CHILDREN (2009), http://www.thinkchildsafe.org/thinkbeforedonating/wp-content/uploads/Keeping-Children-Out-of-Harmful-Institutions-Save-The-Children.pdf; M. Ainsworth, Deprivation of Maternal Care: A Reassessment of its Effects, WHO (1962), https://apps.who.int/iris/bitstream/handle/10665/37819/WHO_PHP_14.pdf?sequence=1&isAllowed=y.
 Id. at 6; ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE 1-379 (2010).
 John Williamson & Aaron Greenberg, Families, Not Orphanages, CHILD RIGHTS INTERNATIONAL NETWORK (Nov., 2013), http://www.crin.org/docs/Families%20Not%20Orphanages.pdf.
 Convention on the Rights of the Child art. 20, Mar. 07, 1990, E/CN.4/RES/1990/74.
 Convention on the Rights of the Child art. 18(2), Mar. 07, 1990, E/CN.4/RES/1990/74.
 Convention on the Rights of the Child art. 4, Mar. 07, 1990, E/CN.4/RES/1990/74.
 Convention on the Rights of the Child art. 5, Mar. 07, 1990, E/CN.4/RES/1990/74.
 UN Guidelines for Alternative Care of Children, 2009, article 14.
 Vishal Jeet v. Union of India, AIR 1990 SC 1412.
 INDIA CONST. art. 39 (e) and (f), 45, and 47.
 The National Charter for Children, 2003.
 The Juvenile Justice (Care and Protection of Children) Act, 2000, § 42.
 Id. at § 2, §§ (12).
 Id. at § 2, §§ (13).
 Id. at § 2, §§ (14).
 The National Policy for Children, 2013, ¶ 4.10.
 MINISTRY OF STATISTIC AND PROGRAM IMPLEMENTATION; GOVERNMENT OF INDIA, CHILDREN IN INDIA – A STATISTIC APPRAISAL 2012 (2012).
 The Juvenile Justice (Care and Protection of Children) Act, 2015, § 2 (9); The Model Guidelines for Foster Care, 2016, § 2(v).
 The National Policy for Children, 2013, ¶ 4.10.
 The National Policy for Children, 2013, ¶ 4.6(v).
 The National Policy for Children, 2013, ¶ 5.2.
 The Juvenile Justice (Care and Protection of Children) Act, 2015, § 39.
 Id. at § 40.
 Id. at § 40, explanation.
 Id. at § 43.
 Id. at § 2(9).
 Id. at § 44.
 Id. at § 50.
 Id. at § 51.
 Id. at § 47.
 Id. at § 48.
 Id. at § 49.
 Id. at § 56.
 Id. at § 45.
 The Adoption Regulations, 2017, regulation 2(4).
 The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, rule 23.
 The Integrated Child Protection Scheme (ICPS), 2009, p. 34.
 Jenny Pokempner & Jennifer Rodriguez, Foster Care In the United States: A Timeline, TEEN VOGUE (May 31, 2018), https://www.teenvogue.com/story/foster-care-in-the-united-states-a-timeline.
 The House of Refuge, http://www.mrkrieger.com/criminaljustice/unit05/juveniles/1_history/institutional_era/house_of_refuge.htm.
 Susan Lankford, Punishing Children: Houses of Refuge & Juvenile Justice, PRISON CULTURE (Feb. 13, 2011), http://www.usprisonculture.com/blog/2011/02/03/punishing-children-houses-of-refuge-juvenile-justice/#:~:text=Between%201825%20and%201855%2C%2063,their%20thumbs%20and%20severe%20beatings.
 supra note 42.
 Jenny Pokempner & Jennifer Rodriguez, supra note 41.
 Tara Batista & Allen Johnson, The Children’s Aid Society: Early Origins of Youth Empowerment in the US Foster Care System or Paternalistic Prevention?, 42(1) J. OF FAMILY HISTORY 67, 67-80 (2017).
 Jenny Pokempner & Jennifer Rodriguez, supra note 41.
 Kasia O’Neill Murray & Sarah Gesiriech, A Brief Legislative History of the Child Welfare System, https://www.masslegalservices.org/system/files/library/Brief%20Legislative%20History%20of%20Child%20Welfare%20System.pdf.
 Record number of adoptions and reduced number of children in foster care in new “AFCARS” data release, ADMINISTRATION FOR CHILDREN & FAMILIES, https://www.acf.hhs.gov/media/press/2020/record-number-adoptions-and-reduced-number-children-foster-care-afcars-data.