From: help.org [mailto: santoo@gmail.com]
Sent: 5 April 2016 09:49 AM
To: Program Manager - HELP
Subject: CWC Procedures with POCSO cases.
Sent: 5 April 2016 09:49 AM
To: Program Manager - HELP
Subject: CWC Procedures with POCSO cases.
Greetings
from Srikakulam,
I
would like to know about CWC procedures or guidelines when there is POCSO case.
Thanking
you,
Santhosh
Coordinator,
Child
Line-1098,
Srikakulam
District.
Answer:
Guidance to CWCs for
custody or care orders
Rule 4(5) of the POCSO Rules is open to some very pernicious interpretations. If you read through the requirements that the CWC is called upon to take into account when deciding to remove custody of the child from its family, it would appear that if a family member is poor, or ill, or if the child has special needs, that can be a justification for depriving the child of his family.
Where the child has a family, POCSO should not become a vehicle for casually depriving them of their entire family because one member committed an offence against them.
The guidelines should advise CWCs to consider as an inalienable part of any child’s best interests: (i) the ability to grow up and live with his biological family; (ii) access of a child to the company of his non-offending family members; and (iii) the fostering of his bonds with them, especially, parents, grandparents and siblings. The guidelines should also sensitize CWCs to the fact that where both parents are convicted under POCSO, members of the extended family may not be able to take financial responsibility for the child, but this should not disentitle them from maintaining their relationship with the child.
With these basic principles in mind, the guidelines should give the following suggestions to the CWC when considering custody or care orders:
(i)
If a parent is not accused under POCSO, then that parent must not be deprived of custody of the child.
(ii)
If a mother is not convicted as a primary offender under POCSO, she must have such access to her children as is permitted to women prison inmates under the general law.
(iii)
Even where family members express themselves as unable or unwilling to take over guardianship of a child, this must not result in a total severance of the child’s relationship with these family members. The child must be enabled in knowing them, visiting them and fostering bonds with them even while in care homes or in foster care.
(iv)
If a child has to be removed from the home, his mother or failing her at least one grandparent or adult sibling shall be allowed to accompany and live with the child wherever he is placed.
(v)
In all situations the child shall have the widest possible regular access to his non-offending family members, especially his mother, grandparents and siblings.
(vi)
Even while in a care home or in foster care every effort will be made to encourage and nurture the child’s relationships with his family members, including members of the extended family, both by in-person interaction and through written, telephonic, video telephonic and other means available.
(vii)
The limits on family visitation for children under CWC care orders under the JJ Act will not apply.
(viii)
No care home or foster carer shall be permitted to argue against family interaction on the ground that this is “unsettling” for the child. The CWC shall ensure that care home personnel and foster carers are trained to encourage and foster family relationships and bonds.
(ix)
Even while in a care home or in foster care, the cultural and religious heritage of the child of the family and community into which he was born shall be fostered and nurtured in that child
(x)
Poverty or illness or disability, whether of the child or the non-offending family member who is asking for custody, shall not be considered as reasons for depriving a child of his family. The principle should be if you’re the grandparent or aunt and you want to keep the child, then that decides the matter. Poverty and special needs and other things listed in Rule 4(5) shall be taken into account by the CWC to consider ways and means by which families can be aided (financially and otherwise) and counselled in better caring for the child.
(xi)
There shall be no adoption of the child by non-family parties unless (non-offender) parents and grandparents and adult siblings each agree to adoption and, in case they are all dead or untraceable, members of the extended family agree to this after being explained that this will forever shut them off from the child.
(xii)
Custody and guardianship of the child shall not be taken away from the family by way of interim orders. Interim measures shall be restricted to securing the child in its home and with full and free access to its mother where she is not an accused
Rule 4(5) of the POCSO Rules is open to some very pernicious interpretations. If you read through the requirements that the CWC is called upon to take into account when deciding to remove custody of the child from its family, it would appear that if a family member is poor, or ill, or if the child has special needs, that can be a justification for depriving the child of his family.
Where the child has a family, POCSO should not become a vehicle for casually depriving them of their entire family because one member committed an offence against them.
The guidelines should advise CWCs to consider as an inalienable part of any child’s best interests: (i) the ability to grow up and live with his biological family; (ii) access of a child to the company of his non-offending family members; and (iii) the fostering of his bonds with them, especially, parents, grandparents and siblings. The guidelines should also sensitize CWCs to the fact that where both parents are convicted under POCSO, members of the extended family may not be able to take financial responsibility for the child, but this should not disentitle them from maintaining their relationship with the child.
With these basic principles in mind, the guidelines should give the following suggestions to the CWC when considering custody or care orders:
(i)
If a parent is not accused under POCSO, then that parent must not be deprived of custody of the child.
(ii)
If a mother is not convicted as a primary offender under POCSO, she must have such access to her children as is permitted to women prison inmates under the general law.
(iii)
Even where family members express themselves as unable or unwilling to take over guardianship of a child, this must not result in a total severance of the child’s relationship with these family members. The child must be enabled in knowing them, visiting them and fostering bonds with them even while in care homes or in foster care.
(iv)
If a child has to be removed from the home, his mother or failing her at least one grandparent or adult sibling shall be allowed to accompany and live with the child wherever he is placed.
(v)
In all situations the child shall have the widest possible regular access to his non-offending family members, especially his mother, grandparents and siblings.
(vi)
Even while in a care home or in foster care every effort will be made to encourage and nurture the child’s relationships with his family members, including members of the extended family, both by in-person interaction and through written, telephonic, video telephonic and other means available.
(vii)
The limits on family visitation for children under CWC care orders under the JJ Act will not apply.
(viii)
No care home or foster carer shall be permitted to argue against family interaction on the ground that this is “unsettling” for the child. The CWC shall ensure that care home personnel and foster carers are trained to encourage and foster family relationships and bonds.
(ix)
Even while in a care home or in foster care, the cultural and religious heritage of the child of the family and community into which he was born shall be fostered and nurtured in that child
(x)
Poverty or illness or disability, whether of the child or the non-offending family member who is asking for custody, shall not be considered as reasons for depriving a child of his family. The principle should be if you’re the grandparent or aunt and you want to keep the child, then that decides the matter. Poverty and special needs and other things listed in Rule 4(5) shall be taken into account by the CWC to consider ways and means by which families can be aided (financially and otherwise) and counselled in better caring for the child.
(xi)
There shall be no adoption of the child by non-family parties unless (non-offender) parents and grandparents and adult siblings each agree to adoption and, in case they are all dead or untraceable, members of the extended family agree to this after being explained that this will forever shut them off from the child.
(xii)
Custody and guardianship of the child shall not be taken away from the family by way of interim orders. Interim measures shall be restricted to securing the child in its home and with full and free access to its mother where she is not an accused
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