Thursday, 7 August 2014

Guiding Principles for the Child Welfare Committees on POCSO Act

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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