proceedings to PD - East Godavari dist for implementing CWC order

                                              CWC Proceedings: CWC/EG/_____/2014 Dated:_______

To,                                                                                                                        

The Project Director,

District Women & Child Development Agency,

KAKINADA,

East Godavari District

As you know very well that the Child Welfare Committee is also a court for the disposal of the cases of children below 18 years which is established by the Govt. of India under Sec 29(5) of Juvenile Justice (Care & Protection of Children) Act 2000, amend 2006. And this is to inform you that all the members in this committee are said to be a bench of magistrates with the powers of First Class Judicial Magistrates. Further, you know very well that, the committee has been equipped with the powers to facilitate the children in need of Care and Protection in terms of their development, care, treatment and rehabilitation under Sec 31 (2) of JJ (Care and Protection of Children) Act 2000 r/w 2006.

Whereas The Child Welfare Committee has received a complaint on 10^th March 2014 from District Child Protection Unit (DCPU) regarding trading of a child by Smt. Vasamsetti Saraswathi, 26 years, w/o Prasad, Kothapeta, Karapa Village. In this regard, Mr. Ch. Abhishalm Counselor and Mr. K. Srinivasa Rao Social worker were appointed to enquire under Sec 33 of JJ Act 2000 amend 2006 and report to CWC. They reported that Smt. Vasamsetti Saraswathi married and was conceived six times. She could not deliver even a single child due to frequent abortions. Hence, she has adopted a child of her relative Mr. Illa Prasad & Mrs. Lova Kumari as they have 4 children and who could not bear for proper care and concern over all the children as per the finding of CWC through DPO. The same facts have been approved by the village sarpanch of Karapa. After holding enquiry and receiving report from DPO the CWC has thoroughly examined the case and issued its order to surrender the boy child to Sishugruha since the adoption process not commenced under the legal procedure as per existing legislations meant for.

Hence, the boy was surrendered to CWC and the same day the boy was referred to the Shisu Gruha, Kakinada for restoration under Sec 39(3) of the Juvenile Justice (Care and Protection) Act, 2000, amend 2006.

The application for urging to see the boy child in Sishugruha and few additional grounds was considered by this CWC Court and ordered dated 9^th June 2014 to the Dist. Women & Child Development Agency to allow Mr. Vasamsetti Prasad & Smt. Vasamsetti Saraswathi resident of Karapa village to see the child twice in a month. But, Women & Child Welfare Agency is not honored the CWC order, it is against to the law and contempt of the court. The CWC will take necessary actions.

It is hereby strictly opined by CWC that, being the head of the department who has to make the departmental personnel to abide by the law and assist for its proper enforcement in the district, causing inconvenience to the statutory body of CWC which is nothing but a court in disposing the cases of children in need of care and protection services at the district level. Moreover, the department itself named as Women & Child Development Agency and how a child develops when the district level heads obstructing their effective rehabilitation and re-integration services by the authorities constituted by the state under the legislations which has to be honored by all of us under any circumstances.

In this context, the CWC is hereby seeking written explanation under Sec 31(2) of JJ Act, 2000 amend 2006 for below queries by the Project Director, Dist Women & Child Development Agency in terms of violation of proceedings issued by it.

·         What are specific reasons for not allowing the above applicants to see the boy child in Sishugruha?

·         Which Sections under which Act or Legislation supports your refusal to see the boy?

·         What are your complications or technical hurdles in allowing them to see the boy?

·         Is there any specific order by state authorities of Women Development and Child Welfare to refuse the issues instructed by CWCs in district? If so, please submit a copy.

·         Is there any specific central legislation or Act or any state rules mentioned anywhere to reject CWC proceedings in such way? If so please submit a copy of the same to CWC.

The CWC is hereby seeking a written explanation for the above within a week period so as to proceed further under the legislatory grounds so as to make justice in the said case.

                                         

            The CWC court is instructing to the entire child related agencies and other stakeholders in the District to do their best for strict implementation of Law and respect the same.

For the aforesaid order to be carried into execution according to law.

Given under my hand and the seal of Child Welfare Committee on 19^th August 2014.

Cc: 1.The District Judge, KAKINADA, East Godavari District

       2. The Secretary, District Legal Services Authority, East Godavari dist

       3. The Regional Joint Director, Dept of WD&CW, ELURU

       4. The Human Rights Commission, Govt of A.P

       5. The Director, WD&CW, Govt of AP

       6. The Commissioner, Dept of WD&CW, Govt of A.P

      

Monitoring Questions to CWCs regarding Case-Management and Care of the victimized Child

1. What was the quantum of temporary financial support provided to the child to cater to his immediate needs?
2. On what basis was the quantum of financial support determined?
3.  Were copies of all orders passed by the CWC furnished to the concerned relatives/guardians?
4. What was the approximate time taken for conclusion of inquiry since the receipt of the report from the police or any other person? State the reasons for delay, if any? 
5. Nature of services provided by the CWC to the affected person?
6. Were arrangements made by CWC to ensure availability of qualified personnel as translators/ interpreters/ special educators?
7.  Were there any other restorative measures taken for the child by the CWC?

Monitoring Questions for CWCs has made its assessment report

1. Did the CWC constitute a panel for conducting preliminary visits to the place of residence of the child during its assessment/ inquiry?
2. On what grounds did the CWC refuse grant of custody to the parents?
3. On what grounds did the CWC refuse grant of custody to the parents? On what grounds did the CWC consider institutionalization of the child?
4. What evidence was relied upon by the CWC while conducting the assessment?
5. Did the CWC take into account any preference or opinion expressed by the child on the matter?
6. What procedure was followed by the CWC for inquiry in a case where the child was below the age of 2 years and / or medically unfit?

General Rules of Procedure for CWCs to deal POCSO Act cases

1.   To ensure a fair and just proceeding, the CWC considering a case initiated under POCSO may look for guidance to the procedures laid down for CWCs in cases  initiated under the JJ Act. The JJ Act provides in Section 54 that the procedures for enquiries by the CWC should be, to the extent possible, as provided for in a summons-case for trial under the Code. The CWCs considering POCSO cases are advised to proceed in their inquiries according to these rules. 
2.  CWCs acting under POCSO are also advised, when conducting searches or other  investigations, to act within the procedures and limits of the powers of a magistrate of  the first class under the Code as has been provided for CWCs under the JJ Act in Section 29(5) thereof  
3. The constitution of the CWC shall be as provided in the JJ Act, subject to the following: The quorum for CWCs considering cases under Rules 4(4), 4(5) and/or 4(6) of the POCSO Rules shall include at least two members each having not less  than 10 years of active experience as litigator (pleader) or judge, or a combination of experience as litigator (pleader) and judge totaling 10 years. Any decision under the said rules that does not have the concurrence of at least one such member shall  require consent of all other members of the CWC. Subject to the foregoing, all decisions by the CWC may be taken by a majority of those present and voting 
4.  In making any decision (whether at the initiation of proceedings under POCSO, or thereafter, including when reviewing previous decisions) as to the custody of the child, of whatever duration, the CWC should facilitate participation in such decision of the non-accused parents and where they are both dead, unable to participate or untraceable, of the non-accused Relatives (other than the parents) of the child. The CWC should also give the accused parent an opportunity to be heard in relation to the custody of the child. To the extent that the CWC is considering refusal of custody or permanent or temporary termination of custody of a Claimant Relative, it must treat the Claimant Relative as a respondent in a judicial proceeding who is contesting denial of custody to them with all attendant rights of natural justice, due process and a fair hearing. In order to achieve this, the CWC should in relation to any proceedings under or ancillary to Rule 4(4) or (5):

(a)   give notice of such proceedings, where possible in advance, to the parents and where they are both accused, dead, unable to participate or untraceable, to all other non-accused Relatives;

(b)    make efforts to trace the non-accused parents and where they are both accused, dead, unable to participate or untraceable, to trace all other non-accused Relatives (including minor siblings) and to issue and publish summonses upon them;

(c)    conduct proceedings in the mother tongue of the Concerned Relatives or provide them with competent translators so as to ensure that they follow the proceedings;  

(d)    assist Concerned Relatives in obtaining legal representation;

(e)   furnish Concerned Relatives with the entire case record and all documents or other evidence or materials being considered by the CWC in arriving at any decision in such proceedings;

(f)      ensure a full and fair hearing to Claimant Relatives prior to passing any orders;

(g)   permit Claimant Relatives to cross-examine any party (other than the child) testifying before the CWC against grant of custody to them;

(h)   keep the parents and Immediate Relatives, and where they are all accused, dead, unable to participate or untraceable, the other Concerned Relatives informed as to where the child has been placed by the CWC; and

(i)     give full copies of all orders passed by it to the Concerned Relatives and arrange for official translations thereof in a language known to such parties upon their  request.

Powers of CWCs in cases of sexual assault against children under POCSO Act

Main Role of CWCs

The main role of the CWC under POCSO 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.

Who initiates the case before the CWC?

1.      Under section 19 (6) of POCSO, it is the SJPU or local police that will report and produce a child before the CWC. So cases before the CWC will be initiated by the SJPU or local police. If the case under POCSO is brought to the notice of the CWC directly, the CWC shall inform the police / SJPU of the case.

In what circumstance can a child be brought before the CWC?

2.      Rule 4(3) of the POCSO Rules lists the following circumstances in which a child is to be brought before the CWC. The child is:

a.      living in the same or shared household with a person who the police allege has committed or is likely to commit or attempt to commit an offence under POCSO (such children are hereinafter referred to as ―Children Found Co-Habiting with Accused‖ or ―CFCA‖);

b.      living in a child care institution and does not have parental or other family support, i.e., is either orphaned or abandoned in such institution (such a child is hereinafter referred to as ―Institutionalized Child/Children‖); or

c.       is found without any home or parental or other family support (such a child is hereinafter referred to as ―Destitute Child/Children‖).

In addition, Section 19(5) of the POCSO and Rule 4(3) of the POCSO Rules state that such a child should be determined by the SJPU or local police for reasons recorded in writing to be a child in need of care and protection (this report is hereinafter referred to as the ―Police Care and Protection Report or ― PCPP).

List of Monitoring Questions for the CWC for Quarterly Collection of Data by the NCPCR on POCSO cases

1.      No. of cases referred to CWC by the police, NCPCR or SCPCR?

2.   No. of cases where the police or person producing the child has submitted a written report while reporting the case to the CWC?

3.      No. of cases referred by the CWC for:

·         Medical care

·         Mental health support

·         Protection/ shelter

·         Sponsorship services

4.      No. of support persons designated by the CWC to render support to the child in the process of investigation and trial?

5.      What is the criterion for appointment of support person by the CWC?

6.    Quantum of financial or office assistance provided to the Support Persons by the  CWC for performing their duties under the Act?

7.      No. of cases where the CWC has refused grant of custody to the parents?

8.      No. of cases where the CWC has institutionalized the child?

9.      No. of cases where the CWC has conducted preliminary visits to the place of residence of the child during its assessment/ inquiry?

10.  No. of cases where the CWC has provided temporary financial support to the child to cater to his immediate needs?

11.   No. of cases where the CWC has undertaken follow up of cases after passing an order under Rules 4(4) & 4(5)?

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].