Guiding Principles for the Child Welfare Committees on POCSO Act
as per the NCPCR guidelines
According to section 29 (5) of The Juvenile Justice (Care and
Protection of Children) Act, 2000, the Child Welfare Committee ―shall
function as a Bench of Magistrates and shall have the powers conferred by the
Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or,
as the case may be, a Judicial Magistrate of the first class.” There is an obligation
under the POCSO Act to produce a child in need of care and protection before
the CWC and the CWC performs judicial functions.
(1) Production of child before
Child Welfare Committee (CWC): Section 19 (6) of the Act
and rule 4 (3) of the Protection of Children from Sexual Offences Rules,
2012, provide for production of a child by the police before the Child Welfare
Committee within 24 hours of recording information under section 19.
Ø The role of the police under rule 4 (3) in producing a child
before the CWC is to allow a detailed assessment to be made of its
requirements for care and protection and follow-up directions.
Ø The police or the special juvenile police unit are entrusted with
the responsibility of producing the child within 24 hours before the Child
Welfare Committee –
·
Upon receiving and recording the information under section 19 of the
Act and after satisfying themselves an offence under the POCSO Act has been
committed or attempted by a person living with the child;
·
Where the SJPU or the local police has a reasonable apprehension that
the offence has been committed or attempted or is likely to be committed by a
person living in the shared household, or the child is living in any child care
home without parental support [Rule 4 (3)];
·
The reasons must be recorded by the police [Rule 4 (3)].
(2) Main Role of CWCs under the POCSO Act: The main role of the CWC
under the POSCO Act is to provide assistance to children who are alleged to be
victims of sexual assault and, where applicable, their families, in obtaining
care and protection. This role has been given to the CWCs in recognition of the
fact that in cases of sexual assault it is important to look beyond the
investigation and trial of the alleged perpetrator to providing assistance to
the children in such cases who are in need of care and protection.
While
deciding whether a child needs care and protection the Committee must:
1)
hear the parent or guardian likely to be affected by the decision,
2)
Place on record the wish of
the child after speaking to it,
3)
The wishes of the child in favour of living in the family or with parents
must be accorded priority,
4)
allow a parent or guardian of such child to place material on
record showing institutionalized care unnecessary,
5)
take the decision in the best interest of the child as provided
based upon material on record, and
6)
Give reasons in support.
·
When the parents are living separately from each other, the child
shall normally be allowed to live with his/her mother as the first option by
the CWC.
·
When the child is unwilling to live with its parents, guardian or
other relative, the Child Welfare Committee should find reasons for such
refusal and see whether apprehensions of the child in this regard can be set at
rest by taking appropriate measures. In such a case, the CWC is advised to
consider whether the custody of the child with the family should temporarily be
under supervision. Full-fledged custody may be extended if the child is taken
proper care of.
·
Rule 4 (5) of the Protection of Children from Sexual Offences
Rules, 2012, apart from the preference
of the child, lay down other considerations to be taken into account by the
Child Welfare Committee conducting the inquiry:
(a) Capacity
of the parents etc. to fulfill immediate needs of, including medical care to,
the child;
(b) Need
that the child must remain within the family;
(c) Age,
maturity, gender, and social and economic background of the child;
(d) Disability,
if any, of the child;
(e) Chronic
illness a child may suffer;
(f) History
of family violence of the child or a member of its family; and
(g) Other
relevant factors in the interest of the child.
(3) Institutionalization of
the child: A decision in favor of institutionalizing the child by the
Child Welfare Committee should be taken as the last resort.
Even if the child has lost both its parents or neither parent is
traceable, the Committee must endeavor to find other relatives of the child
willing to take care of the child. Section 39 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, makes it clear that even children‘s homes or
shelter homes shall have restoration of the child as their prime objective and
shall take steps for a child deprived of family atmosphere to live with its family.
(4) Child unable to communicate due to young age, suffering from
severe physical or mental disability including injury shall not be produced
before the CWC to the discomfort of the child unless directed: Section 47
of the Juvenile Justice (Care and Protection of Children) Act, 2000, gives
discretion to the Committee in relation to a child in need of care and
protection to dispense with his attendance during the inquiry. Rule 27 (3) of the Delhi Juvenile Justice
(Care and Protection of Children) Central Rules 2009, provides for sending written report to the
CWC with the photograph of a child instead of producing him/her, when the child
is under 2 years of age and medically unfit. Thus, the presence of a
disabled, severely injured or a child below 2 years before the CWC is not
necessary for beginning with the statutory inquiry, and the CWC has powers to dispense
with attendance of such child. The CWC should be apprised by the police in writing
of cases involving such children. In cases where for example, due to severe injuries
or illness it would be detrimental for a child to travel to appear before the
CWC and the child is not in a position to state whether he wants to live with
his family, rule 4 (3) of the Rules of 2012 and section 19, sub-section (6) of
the Act shall not be read as mandatory.
(5) Time limit for inquiry
by CWC: When a child has been placed by the police in a shelter home
under section 19 (5) of the Act, the CWC must conclude the inquiry within the
prescribed time limit of 3 days [Rule 4 (4) of the Rules of 2012]. If a
child placed temporarily in a shelter home is released in the interim custody
of his family, the compulsion for the CWC to conclude the inquiry within three
days may not be necessary. Strict adherence to the time schedule should not
lead to sacrificing just and fair nature of the proceeding or giving hasty
decision. In such cases, the inquiry
should be concluded expeditiously without any unnecessary delay.
(6) Tracing Missing
Children: Under Rule 27 (7) of the Juvenile Justice (Care and Protection of
Children) Central Rules, 2007, whoever produces a child before the Committee
shall submit a report on the circumstances under which the child came to their notice
and efforts made by them on informing the police and the missing persons squad and
in cases where a recognized voluntary organization or any police personnel
produce a child before the Committee, they shall also submit a report on the
efforts made by them for tracing the family of the child.
In Hori
Lal vs. Commissioner of Police, Delhi and Ors W.P (Crl) 610 of 1996, the Supreme Court laid down the steps to
be taken by Investigation Officers for tracing missing girls. These steps include, publishing photographs
of the missing child with the permission of the parent/guardian, making
inquiries in the neighborhood, contacting the school and making inquiries on
incidents of violence in the family.
In Bachpan
Bachao Andolan vs. Union of India and Ors W.P (C) 75/2012, the Supreme
Court passed interim directions that that in case a complaint with regard to
any missing children is made in a police station, the same should be reduced
into FIR and appropriate steps should be taken to see that follow- up investigation
is taken up immediately thereafter. The Supreme Court directed the National
Legal Services Authority and the para-legal volunteers, recruited by the Legal
Services Authorities, should be utilized, so that there is, at least, one
paralegal volunteer, in shifts, in the police station to keep a watch over the
manner in which the complaints regarding missing children and other offences
against children are dealt with.
(7) Interim measures by the CWC: The
Child Welfare Committee, have powers to provide for basic needs of such child,
protect its human rights, and order temporary financial assistance to cover its
basic and immediate needs [section 31 (1) JJ Act, 2000].
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