CHAPTER III

ANALYTICAL DISCUSSION TOWARDS THE INTER

COUNTRY ADOPTION PROCEDURE OF US, UK AND INDIA
CHAPTER III
ANALYTICAL DISCUSSION TOWARDS THE INTER COUNTRY
ADOPTION PROCEDURE OF US, UK AND INDIA
3.1 INTRODUCTION
One of the objectives of family is to achieve a safe and secure future of a child, and to build a
family either within country or outside the country with strong efforts as it relates to adoption is
procedural. The realization of both parties to form a family i.e. willing parents and the child
adopted for adoption is not only procedure but differs from country to country. To find out
parents or to find out a child by parents for the compellation of their family is through a
procedure which is called adoption. However this procedure of adoption is different from
country to country. Hence, the procedure through which a child can be adopted by foreign
parents is not at all straightforward or an easy one but it is not tricky too. For instance, in India
the procedure of inter-country adoption was provided by Supreme Court in the judgment of L K
Pandey,1 Court discussed that ―every application from a foreigner/NRI/PIO (as applicable)
desiring to adopt a child must be supported and sponsored by a child welfare agency licensed or
recognized by the Government or a Department of the Foreign Govt. to sponsor such cases in the
country in which the foreigner is resident. The foreign agency should also be an agency
‗authorized‘ by CARA,2 Ministry of Social Justice & Empowerment, and Govt. of India and no
application by a foreigner/NRI/PIO for taking an abandoned child in adoption should be
interested directly by any child welfare agency in India‖, 3and in the later stage CARA issued

1
L. K Pandey v. Union of India, AIR 1984 SC 469.
2
Central Adoption Resource Authority (CARA) is a statutory body of Ministry of Women & Child Development,
Government of India. It functions as the nodal body for adoption of Indian children and is mandated to monitor and
regulate in-country and inter-country adoptions. CARA is designated as the Central Authority to deal with inter-
country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption, 1993,
ratified by Government of India in 2003. CARA primarily deals with adoption of orphan, abandoned and
surrendered children through its associated recognized adoption agencies, available at:
http://www.cara.nic.in/InnerContent.aspx?Id=16#
3
Procedure provided by the Central Adoption Resource Authority (CARA), available at:
http://www.adoptionindia.nic.in/parents/inter-Guidelines-for-Adoption.html.
guidelines to regulate it. Notably, this procedure is a standard form and followed by most of the
countries with specific changes.

3.2 COMPARATIVE ANALYSIS OF PROCEDURAL ASPECTS OF INTER

COUNTRY ADOPTION
The procedure for inter country adoption of a child is not the same all over the world, although
the procedure has substantial differences which depends on the needs of the country, but in a
broader aspect the process could be classified into three stages as: before the adoption which is
also known as initiation of adoption procedure, the second stage is adoption process in which the
child have to be sent in for adoption and will be adopted by foreign adoptive parents and the last
one is after adoption where the adoptive agencies or the central adoptive agency has to follow the
progress of the child in the foreign adoptive country.The three stages highlighted shall be
explained below:

A. BEFORE ADOPTION

3.2.1 Application Process or Initiation Process: By Foreign Adoptive Parents

and its Reply
In India, the demand of the child by the foreign adoptive parents is the beginning of the process
of adoption in India. Meanwhile, the adoptive parents have to initiate the process by making an
application, in that application they have to mention their specific requirement and reasons for
adoption. This application will come to domestic adoptive agency through the foreign adoptive
agency. In the procedure of adoption the ―foreign adoptive parent eager to taking the adoption of
an abandoned Indian child has to make an application to the Guardianship Court for the
permission to be the guardian of the child to whom he desires to take in adoption and, on being
appointed the guardian, for leave of the Guardianship Court to take the abandoned child with him
to his domestic country for taking the child in adoption. It should be noted that under the Indian
law as it stands at present, the only way in which a foreign parent can take an Indian child in
adoption is by making an application to the court within the jurisdiction in which the child
resides before being appointed a guardian and once he is appointed a guardian, the guardian is to
seek the leave of Court prior the removal of the child out of jurisdiction, i.e., to his own country
so that he could adopt the child in accordance with the law of adoptive parents country‖. 4After
making an application has been granted the final stage is to notify the social and child welfare
agency that ensures the welfare of the said child, hence that takes us to the next stage.
After making an application the next step would be to given a notice to the Social and child
Welfare agency working for the welfare of the child.

3.2.1.1 Notice to the Social and child welfare organizations

The next stage begins with serving a notice of adoption to the guardian or child. But because of
the status being orphans, destitute, or abandoned, or those whose parents have been lured into
giving them in adoption then serving notice under section 11, 5of the Guardians and Wards Act,
1890, has no significance and this is fundamental problem with the procedure of inter-country
adoption. Earlier, there was no machinery who can look out whether the proposed adoption is on
the welfare of the child or not, and this is the main reason why the Delhi High Court Rules,
provide a procedure in which a notice would have been given to the Indian Council of Child
Welfare, while on the other hand the Bombay High Court Rules and the Gujarat High Court
guidelines provide that a notice should be given to the Indian Council of Social welfare. 6 Even
Supreme Court emphasized on this procedure and said that there is an urgent need of some
independent agency which can inquire into the matter. The main purpose for giving notice to the
Indian Council of Social Welfare or the Indian Council for Child Welfare or any other
independent agencies, reputed and public or officially recognized Social welfare agency is

4
Dr. Paras Diwan, Law of Adoption, minority, Guardianship and Custody, 111 (Wadhwa& Company, Allahabad,
2ndedn., 1993) at P 112
5
Section 11 of the Guardians and Wards Act, 1890, provides about Procedure on admission of application.- (1) If
the court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof
and cause notice of the application and of the date fixed for the hearing. To be served in the manner directed in the
Code of Civil Procedure, 1882 (14 of 1882) on the parents of the minor if they are residing in (any State to which
this Act extends) the person, if any, named in the petition or letter as having the custody or possession of the person
or property of the minor the person proposed in the application or letter to be appointed or declared guardian, unless
that person is himself the applicant, and any other person to whom, in the opinion of the Court special notice of the
applicant should be given, and to be posted on some conspicuous part of the court-house and of the residence of the
minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this
Act, thinks fit. The state Government may, by general or special order, require that when any part of the property
described in a petition under sec. 10, sec-section (1) is land of which a Court of Wards could assume the
superintendence, the Court shall also cause a notice as aforesaid to be served on the Collector in whose district the
minor ordinarily resides and on every Collector in whose district any portion of the land is situate, and the Collector
may cause the notice to be published in any manner he deems fit. No charge shall be made by the Court or the
Collector for the service or publication of any notice served or published under sub-section (2), available at:
https://www.childlineindia.org.in/CP-CR-Downloads/Guardians%20and%20Wards%20act%201890.pdf
6
SouraSubha Ghosh, ―Inter Country Adoption Procedure and Supreme Court Guidelines‖, available at:
http://www.legalservicesindia.com/articles/adopt.htm
apparently to ensure that the application of foreign parents for guardianship of the proposed
adopted child is properly and carefully analyzed and appraised by an expert body having
experience in the field of child welfare with a view to supporting the Guardianship Court in
making the decision whether it will be in the best interest of the abandoned child to be adopted
by the foreign parents making the application. 7
In the Case, 8 it was held that the procedure is evolved with a view to abolishing the possibility of
the child being adopted by unsuitable and unwanted parents and being placed in a family where
he/she may be molested or exploited by the adoptive parents. Thus, all these notices involved in
the adoption process tare all essential. Haven discussed all these notices that adoption process
involved it is apposite we proceed with the next stage which is preparation of adoption
document.

3.3 Documents Required For Adoption

Here, there are some documents expected of the adoption agencies for compellation of the
adoption process they are Child Study Report, Sponsorship document, Home Study Report.
These documents are necessary as they provide the informative details about prospective child
and foreign prospective adoptive parents.

3.3.1 Child study report or Home study report

The child study report is the document which is prepared by different State/Child Welfare
Council. Meanwhile, the most important function of the Council of Social Welfare or the
Council for the Child Welfare or any other recognized or licensed child or social welfare agency
engaged in the process of Inter country adoption/ foreign adoption is to assist the Court in getting
out what is providing for the social welfare of the child. However, the Council formulates a
'Child Study Report‘. The child study report basically contains legal, social and welfare data,
with an assessment of child‘s behavioral pattern with its Physical, intellectual, and emotional
development. The Child study Report Contains the following information‘s-
i. Identifying Information, supported where possible by documents.
ii. Information about original parents, including their health and details of the mother‘s
pregnancy and birth.

7
Supra 1
8
Society of Sisters of Charity v. Karnataka State Child Welfare Council, AIR 1992 Kant 263
 iii. Physical, intellectual and emotional development.
iv. Health report prepared by a registered medical practitioner preferably by a pediatrician.
v. Recent photographs.
vi. Present environment- where he/she is living, care or category (own home, foster home,
institution etc) relationships, routines and different habits.
vii. Social worker‘s assessment and reasons for suggesting Inter country adoption. 9
However, this different information provided to adoptive parents can assist them towards the
standard, behavior and other relevant information regarding the child to whom they are adopting.
After the child study report it is the turn of the sponsored agency to give the relevant informatio n
regarding the parents who are going to adopt the child.

3.3.2 Sponsorship document by foreign adoptive agency

The Sponsorship document of the foreigner‘s application for adoption is a very relevant
document which provides all the necessary information regarding the background of the
adoption. It is essential that the application for the adoption of a child who is Indian by the
parents who are foreigner should be sponsored by a child welfare institution licensed or
recognized by the government of the nation in which the foreign adoptive parents are resident.
―No request by a foreign adoptive parent for captivating a child in adoption should be interested
directly by any welfare agency in India employed in the zone of Inter country adoption or by any
center or Home in which children are dedicated by the juvenile court‖.10 The main reasons
behind these guidelines are following-
(i) Reduce profiteering and trafficking- This procedure will reduce if it will eliminate the
chances of profiteering and trafficking in children, because if a foreigner were consented
to contact the agencies or individuals directly, then it might be possible that they may be
induced or persuaded to pay any unreasonable amount that might be demanded by the
agency or individual procuring the child.
(ii) To check the suitability of the adoptive parents- It is very essential to know that the
parents who are seeking an adoption are suitable for the child or not. It will be almost
impossible for the court to know that the parents who are going to adopt the child would
be able to provide a stable and secure future family life to the child and would be able to

9
Supra 1
10
Supra 4 at p.114
 manage with a child who is a trans-racial, trans- cultural, and for that purpose the
application which is sponsored by the social and child welfare agency in the country
where the foreign parent reside play an important role where the court can come to the
real picture of the family status and the background of the family life of the above said
foreign parents.
(iii)No authority without the Sponsor- Where any application made directly by a foreign
parent without involvement of any social and child welfare agency of his country, there
would be no authority or agency in the country of the foreign parents who could be made
responsible for the supervising and subordinating the progress of the child and ensure that
the child is adopted at the most basic in accordance with the law and grows up in an
atmosphere of comfort, love and affection with material security assurance to it.
In the case of JayantiLalv. Asha11, it was held that-―The foreign child welfare agency sponsoring
the foreigner‘s application for adoption should be an agency licensed or recognized by the
government of the country where the foreigner resides, once a recognized foreign agency
sponsors the adoption of the child, Indian courts need not be conversant with the foreigner‘s law
of adoption‖. Although, no application can be filled under section 7, Guardians and Wards Act
by a foreigner for the engagement of a guardian is to be entertained by the district court unless it
has been sponsored by a licensed or recognized Child welfare agency of the foreigner‘s country.
However, with the help of child study report the parents can see the past and present status of the
child and in the same line of work the next process leads to parent‘s documentation work i.e.
known as home study report, which helps to reveal the status of the parents.

3.3.3 Home study report

The most important function of the foreign child welfare agency sponsoring the application of
the foreigner is to prepare and submit a report to the court and it will be known as the Home
study Report. This Report shows the different basis in which the foreigner‘s application is
sponsored. The Home study report would contains the following contents-
i. Source of Referral.
ii. Number of single and joint interviews.
iii. Personality of husband and wife.

11
JayantiLal v. Asha , AIR 1989 Guj 152.
 iv. Health details such as the clinical tests, heart condition, past illnesses etc. (medical
certificates required)
v. Social status and family background.
vi. Nature and adjustment with occupation.
vii. Relationship with Community.
viii. Description of home.
ix. Accommodation for the child: a) Schooling facilities and, b) Amenities in the home.
x. Standard of living as it appears in the home.
xi. Type of neighborhood.
xii. Current relationship between husband and wife.
xiii. Current relationship between parents and children (if any children).
xiv. Development of already adopted children (if any) and their acceptance of the child to be
adopted.
xv. Current relationship between the couple and the members of each other‘s families.
xvi. If the wife is working, will she be able to give up the job?
xvii. If she cannot leave the job, what arrangements will she make to look after the child?
xviii. If adoption considered because of sterility of one of the marital parents?
xix. If not, can they eventually have children of their own?
xx. If a child is born to them how will they treat the adopted child?
xxi. If the couple already has children how will these children react to an adopted child?
xxii. Important Social and psychological experience which have had a bearing on their desire
to adopt a child
xxiii. Reasons for wanting to adopt an Indian Child.
xxiv. Attitude of grand- parents and relatives towards the adoption.
xxv. Attitude of relatives, friends, community and neighborhood towards adoption of an
Indian child.
xxvi. Anticipated plans for the adopted child.
xxvii. Can the study of the child be adopted according to the adoption law in the adoptive
parent‘s country? Have they obtained the necessary permission to adopt? (Statement of
permission required).
xxviii. Do the adoptive parents know anyone who adopted a child from their own country or
another country? Who are they?
xxix. Did the couple apply for a child from any other source? If yes, which source?
xxx. What type of child is the couple interested in? (Sex, age and for what reasons)
xxxi. Social worker‘s recommendation concerning the family and the type of child which
would best fit into this home.
xxxii. Name and address of the agency conducting the home study.
xxxiii. Name of social worker, qualification of social worker.
xxxiv. Name of the agency responsible for the post- placement, supervision and follow up.12
This Home study report should broadly include information sought under heads 1 to 35 though
strict compliance is not necessitated. 13

3.3.3.1 Home study report in the cases where – A foreigner is residing in India for a year or
more
In the case of a foreigner who has been living in India from last one year or more than that, the
home study report and other documents may be allowed to be prepared by the recognized
placement agency which is giving out the application of such foreigner for guardianship of a
child with a view to its eventual adoption and that in such a case the court should not force on
sponsoring of such foreign adoptive parents by social or child welfare agency based in the
country to which such foreigner belongs nor should a home- study report in admiration of such
foreigner be required to be acquired from any such foreign social or child welfare agency, the
home study report and other connected documents prepared by the recognized placement agency
should be regarded as adequate.

3.3.4 Other necessary manuscripts required

Apart from the home study report prepared by the foreign child welfare agency, the agency has
to prepare other accompanying documents which are required from the members of the family of
the foreign adoptive parents such as, the marriage certificate, certificate of medical fitness, etc-
(i) Documents- The recent photograph of the family, a marriage certificate of the foreign
adoptive parents, a declaration about their health, together with a certificate of medical

12
Supra 1
13
Supra 4 at p. 115
 fitness certified by a medical man, and a declaration of financial status of the foreigner
adoptive parents, income-tax assessment order, bank references, and the different
information regarding the properties owned by the applicant and his family. 14
(ii) Declarations- This declaration entails that the applicant they are willing to be appointed
as guardian of the child and also an undertaking that they will adopt the child according
to the law of their own country within a stipulated period of not more than two years
from the time of their arrival to that country with the child and they will have to give
intimation of that adoption to the court appointing as the guardian as also to the social or
child welfare agency in India meeting out their case. 15
(iii)Statement of reports- once the adoption is done in the country of adoptive parents then it
is the legal and moral duty of the parents of the child to provide the basic and necessary
education for the upbringing of the child according to their status and they would have to
send a statement of progress report to the court, the child and social welfare agency of
that concerned child, along with the recent photographs, for the period of next two years
as the quarterly basis and half yearly for the next three years. 16
(iv) Power of attorney- this is made in favor of an officer of the child welfare agency in India
which is for the purpose of processing the case and the said power of attorney should
authorize the attorney to handle the case on behalf of the applicant in case he is not in a
position to come to India‖. 17
(v) Certificate from the sponsoring child welfare agency- this is issued by the sponsoring
child welfare agency of the foreign adoptive parents, who sponsor the application of the
foreigner that the applicant is permitted to make an adoption under the law of his
country.18
These certificates, declarations and different documents as mentioned above, have to accompany
the application and should be properly registered by the Notary whose signature should be
properly attested either by any Social Welfare institution of the nation of the foreign parents or
by an person of the Ministry of External Affairs or Justice or, or by an officer of the Indian
Embassy or high Commission or any Consulate in that specific country of the foreign adoptive

14
Supra 1
15
Ibid
16
Ibid
17
Supra 4 at p. 116.
18
Supra 1
parents. The appropriate age for child adoption should be known prior to getting the detailed
knowledge regarding the documents needed for the adoption.

3.3.5 Functions of the Child welfare agencies

The child welfare agency recognized or licensed for the Inter-Country adoption have to maintain
a register indicating/depicting the names and particulars of each and every child proposed for
Inter-Country adoptions. The child welfare agency dealing with the adoption ought to place
adequate material before the Guardianship Court to satisfy that the said child is legally available
for adoption. It is very important that the recognized social or child welfare agency must satisfy
itself with the following–

a) That ‗there is no impediment in the way of the child entering the country of the
prospective adoptive parent.
b) That the travel papers for the child can be obtained at the proper time.
c) That the law of the said adoptive parents country allow adoption of the child and that on
―such legal adoption being concluded, the child would acquire the same legal status and
rights of inheritance as a natural born child and would be granted the citizenship in the
country of adoption and it should file along with the application for guardianship, a
certificates reciting such satisfaction‖. 19
At the end of the first process where all the ground level documents work are over, the second
stage of the procedure that is the main process known as adoption process is performed or put in
place.

B. ADOPTION PROCESS

3.4 At the Time of Adoption of the Child

The foreign adoptive parents can initiate the process of adoption by making an application to the
District Court of the local jurisdiction. Section 11 20, requires notices of the application21, to be

19
The giving out of the application of the adoptive foreign parent for the engagement of himself as a guardian of the
child with the ultimate purpose of the adoption of the child is to be processed by the recognized licensed Child
Welfare Agency handling the case and not by unauthorized agencies or individuals.
20
The Guardians and Wards Act, 1890, Act No. 8 of Year 1890, dated 21st. March, 1890
21
Id. at Section 11 provides about: Procedure on admission of application.—
provided to certain persons (including natural parents of the child), if any or to the guardian of
the child or to the domestic adoptive agency.
Though the Supreme Court stated22, that ―no such notice should be given to the biological
parents of the child, since it would create considerable amount of embarrassment and hardship to
the foreigner applicant, if the biological parents were then to come forward and oppose the
application of the prospective adoptive parent for guardianship of the child. Moreover, the
biological parents would know the identity of adoptive parents taking the child in adoption and
with this knowledge they would at any stage be able to trace the positions and well beings of the
child where they may try to contact the adopted child resulting in psychological and emotional
disturbance for the child which might affect his/her future. The possibility also cannot be ruled
out if the biological parents know who the adoptive parents are they may try to extort money
from them.
It is, therefore, absolutely essential that the biological parents should not have any opportunity of
knowing who are the adoptive parents taking the child in adoption and therefore notice of the
application for guardianship should not be given to the biological parents‖. The Supreme Court
further directed23, that the ―notice of the application should not be published in the newspaper,
since notice of the application is given to the Indian Council of Child Welfare, or the Council of
Social Welfare or a recognized child welfare agency. The agency is required to submit the child

(1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing
thereof and cause notice of the application and of the date fixed for the hearing—
(a) to be served in the manner directed in the Code of Civil Procedure, 1882 (14 of 1882)1 on—
(i) the parents of the minor if they are residing in 2[any State to which this Act extends];
(ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of
the minor;
(iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is
himself the applicant, and
(iv) any other person to whom, in the opinion of the Court, special notice of the application should be given; and
(b) to be posted on some conspicuous part of the Court-house and of the residence of the minor, and otherwise
published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.
(2) The State Government may, by general or special order, require that when any part of the property described in a
petition under section 10, sub-section (1), is land of which a Court of Wards could assume the superintendence, the
Court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily
resides and on every Collector in whose district any portion of the land is situate, and the Collector may cause the
notice to be published in any manner he deems fit.
(3) No charge shall be made by the Court or the Collector for the service or publication of any notice served or
published under sub-section (2).
22
L. K. Pandeyv. Union of India, AIR 1986 SC 272
23
Ibid.
study report and other document to enable the court decide the matter in the best interest of the
child‖.

3.4.1 Functioning of the Guardianship Court

The main function of the guardianship court is to look out and ―satisfy itself whether the
guidelines laid down by the Supreme Court has been followed by the agencies concerned on the
basis of the ‗child study report‘, ‗home study report‘ and other material and document submitted
to the court‖.24The guardian court needs to investigate whether the proposed adopter would be an
appropriate person for the child. The Guardian Court further have to see that the child will be
able to get warmth and affection of adoptive family, also the moral and material standard and
security needed.
If court satisfied with the arguments given by foreign adoptive parents, an order is made by the
court to appoint the foreigner as guardianship of the child and permitting him to take the child to
the country with an observation to finalize the adoption procedure.

3.4.2 Proceedings of the court should be in camera

The proceedings on the application for guardianship should be held by the guardianship court
confidentiality (in camera only); an order is made after the proceedings on the application for
guardianship. The complete proceeding includes the submission of adoption documents,
adoption process and appointment of guardian should be sealed because of the confidentiality
lying with the adoption process.25

3.4.3 Procedure of the appointment of the guardian

After the appointment of the guardian by the Guardian Court, information of these appointment
copies of the order and photographs are sent to the Ministry of Social Welfare, Government of
India, and the Ministry of Social Welfare of the Government of State in which the court is
situate.

3.4.4 Register maintain by the Ministry of Social Welfare

A proper register should be maintained by the Ministry of Social Welfare of the Government of
India, containing the names and other important particulars of the children, selected for the

24
Supra 4 at p. 127.
25
Supra 1
guardianship by foreign adoptive parents, and also the names, addresses and other important
particulars of the foreign adoptive parents who have been appointed as the guardian and those
with the authority to take the child to their own country for the purpose of adoption by the
guardianship court.26

3.4.5 Copy of the order sent to the other Functionaries

Once the copies of the order are sent to the Government of India, the Government of India takes
the responsibility of sending the copy of that order to the Indian Embassy or High Commission
in the country of the prospective adoptive parents from time to time the names, addresses and
other particulars of such foreign adoptive parents with the particulars (name and other important
information) of the child taken by them with the request to the embassy or High commission to
maintain an unremarkable look over the welfare and progress of that child in order to safeguard
against any possible misuse, maltreatment, exploitation or use for mysterious purposes. In case
of misuse, maltreatment, exploitation, negligence immediate report is sent to the Government of
India for appropriate action. 27

3.4.6 Disposal of application by the Guardianship Court

While taking into consideration the application for the appointment of the guardian by the
guardianship court, the court always take more time than required. It was came into the
knowledge of Supreme Court in the matter28, that the guardianship court proceedings drag on in
the District Court for months together and they are ordinarily not disposed of before the expiry of
the period of six months. In this regard court further directed in the same matter that the
application should be finalized at the initial stage but in no case later than the period of two
months from the date of the filling of the application.
The Supreme Court also observed in a similar case29, that the High Court ought to call for
reoccurrences from the district/Guardianship Courts within their corresponding jurisdiction
screening in every two months that how many applications have been filed for appointment of
guardian are pending, and if two months have been passed since the date of their filing than why
they have not been disposed of by the Courts. If any application for the appointment of

26
Ibid
27
Ibid
28
Supra 22
29
Ibid.
guardianship is not decided by the district courts within the stipulated period of two months and
even there is no satisfactory explanation given, then the High Courts should have to take a
serious view of the matter.

3.4.7 Bond and security given by the Foreign Adoptive Parents

While foreign adoptive parents are going to be appointing as the guardian of a child and grant
him leave to remove the child from his country, the guardian court should ask him to deposit a
sum of money or to execute a bond to empower the child to be deported to India.

3.4.8 Procedure for the bond and security

The Guardian Court who is dealing with an application of foreign adoptive parents to adopt a
child from India, in the order appointing the foreign adoptive parents as guardian of the child and
to give them a right to take the child to their own country, a bond as a security in respect of the
particular child is going to be executed and it could be used in favor of the child if for any reason
he could have to come back to India.
The attention of Supreme Court was gathered by this issue, and of the Case 30, it was drawn that
―the difficulty of the foreigner to deposit a sum of money and it was submitted that the bond
should have to be satisfactory, if security by way of payment is insisted upon by the
Guardianship Court, it may cause a confident amount of privation to the foreign adoptive parents
because his money would endure locked up in Guardianship Court, however after the adoption is
executed by him, he would be eligible to return of the amount dumped. Yet it may be
problematic for him to get that amount exiled to him in his country (i.e. foreign country)‖. ―The
entire issue has left to be decided by the Guardianship Court in the exercise of its judicial will.
The Guardianship Court may not ordinarily force foreign adoptive parents to deposit, but in a
suitable case, if it so thinks fit, that order could be passed by Guardianship Court‖.31
The accomplishment of the bond would be enough; it should be done by the way of security for
the deportation of the adoptive child to India in the matter it becomes essential to do so as to
confirm adoption within the period of two years. Further observed by the Supreme Court in the
case32, court observed that ―The security bond may be occupied from the social welfare agency
in India or from the representative of the foreign agency, so that if the situation of the security

30
Ibid.
31
Supra 4 at p. 124.
32
Supra 22
bond is violated, the Guardianship Court can proceed to implement the security bond against
such person who represent who would be an Indian citizen. There is also an alternative which
can be adopted by the Guardianship Court. The Guardianship Court may take the security bond
from the welfare agency which has administered the application and such agency may in its turn
take an equivalent security bond from the sponsoring welfare agency in the foreign country‖.
Further the Supreme Court in an another case 33, modified the earlier directions, and said that the
court need not insist on security or cash deposit or bank guarantee and it should be enough if a
bond is taken from the recognized placement agency which is proceeding the application and
such recognized placement agency may in its turn take a corresponding bond from the
sponsoring social and child welfare agency in the foreign country. Ordinarily, the sponsoring
social and child welfare agency in the foreign country would honor the bond in case the
condition of the bond is broken, because, obliviously, if it fails to do so, no recognized placement
agency in India would in future deal with it and moreover the name of such foreign social and
child welfare agency would be liable to be deleted from the list of foreign social and child
welfare agency which are recognized as sponsoring agencies for the purpose of adoption.
After the adoption from domestic adoptive country, the parents will fly with the child to their
own country, where the foreign adoptive parents appointed by the Guardianship Court have to
complete the process and become parent of the child in accordance of the domestic laws where
they are residing. After the completion of adoption process the third stage begin i.e. after
adoption process.

C. THE PROCESS AFTER ADOPTION

3.5 The Process after the Completion of Adoption

The third and the last stage of adoption process is the after adoption stage where the child is there
with his/her parents and the adoptive agencies have to look out the treatment given to child. This
process starts with the progress report.

33
Ibid
3.5.1 Guardianship to Parent-ship: Failure to make Adoption within two years given by the
Guardian Court
The process of adoption of a child by adoptive parents should be done within the period of two
years when the child left his country of origin to the country of his guardian. The Supreme Court
directed in the case34, that the adoption should take place in the country of foreign parent within
a period of two years, otherwise the bond or security should be forfeited‖.

3.5.2 Progress report

Progress report of the child should have to be submitted by the foreign adoptive parents. ―The
order appointing guardian shall carry, attached to it, a photograph of the child duly counter-
signed by an officer of the court‖.35The Supreme Court has directed in the case 36, that the order
for appointment of the foreign parent as the guardian and granting him leave to remove the child
to his country should contain a condition that the foreigner shall submit to the court as well as to
the social and child welfare agency processing the application for guardianship, progress report
of the child quarterly during the first two years and yearly for the next three years‖. Again in its
supplementary judgment 37, the Supreme Court added that it is necessary that progress report
must be submitted by the social and child welfare agency in India quarterly during the first two
years and half yearly for the next three years, but after adoption had taken place the courts may
insist on strict observance of this requirement. By the progress reports should be submitted by
the social and child welfare agency sponsoring the application of the foreigner until adoption is
affected. That would provide greater assurance because it may not be possible to take any action
if the foreigner fails to provide progress reports, but if the social and child welfare agency
sponsoring the application for guardianship fails to submit progress reports, the court can in
future decline to entertain any application for guardianship where the foreigner seeking any
appointment as guardian is sponsored by such social and child welfare agency‖.

34
Supra 1
35
Supra 4 at p. 125.
36
Supra 1
37
Supra 22
3.5.3 Relaxation in time to the foreign parents
Again in its supplementary judgment 38, the Supreme Court further observed, when it was
brought to the notice of the court that in some case the adoption process might not be completed
within two years, some relaxation should be made, then in that kind of matter, the application
should seek extension of the time by making application to the guardian court.
This is the present procedure which is following in a matter where the foreign adoptive parents
wants to adopt a child from India, through this procedure the parent can apply and become the
guardian of the child as it is appointed by the Guardianship court of the jurisdiction where the
child is resides.
Haven discussed about the procedure of inter-country adoption of India in which a child may be
given in adoption to the foreign adoptive parents. Similarly the procedure of US & UK is
discussed below.

3.6. Comparative analysis of Indian procedure with US and UK

3.6.1 Adoption from US

The inter country adoption of US is as similar as of Indian Procedure. However, the Hague
Convention39 and Co-operation in Respect of Inter-country Adoption (Hague Adoption
Convention) governs different adoptions from the United States to other Convention countries
these cases which deal with Adoptions from the United States are known as outgoing cases. In
the outgoing cases only accredited, supervised, approved, or exempt providers can provide an
adoption service to an outgoing Convention country. This can occurs when these two specific
conditions are satisfied:

a) In the first occurrence when there is an adoption of a child resident in the United States
by someone residing in a Convention country; and

38
Ibid
39
The Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption
(Hague Adoption Convention) is an international agreement to establish safeguards to ensure that inter-country
adoptions take place in the best interests of the child. The Convention entered into force for the United States in
April 2008. The Hague Adoption Convention applies to adoptions between the United States and the other countries
that have joined it. In this section, we provide the keys to understanding how to proceed with a Hague Convention
Adoption, available at: http://travel.state.gov/content/adoptionsabroad/en/hague-convention.html
 b) The second one is in connection with the adoption, the child has moved (or will move)

from the United States to the Convention country. 40

In an outgoing case, the final adoption decree may be issued in the United States, or custody for
the purpose of adoption in the other Convention country may be granted. Both final adoption
cases and custody for the purpose of adoption cases can be Convention adoption cases. Only
outgoing adoptions to Convention countries are covered by the Convention and its implementing
regulations. However, new reporting requirements (in 22 CFR Part 9941) apply to outgoing cases
to both Convention and non-Convention countries.42The services provider of adoption should
have to provide all the required information for the successful meeting the requirements of
adoption. For instance, all prospective adoptive parents need to complete:-

a) To prepare a home study report,

b) To submit immigration forms,
c) A dossier, which is a collection of the family‘s personal records (e.g., proof of identity,
finances, health, fingerprints for clearance checks.
d) Parents also are required to complete at least 10 hours of training prior to the adoption,
which is separate from any home study requirement.43 Countries of origin may have
additional training requirements for parents. Parents may be exempted from training by
the primary provider if the parents already have completed other sufficient training.
e) When a specific child is identified, you will receive a referral (a packet of information
about the child). You will have a period of time to review the information and decide
whether you can meet this child‘s needs.44
The procedural requirement for an outgoing case which has to be fulfilled by the adoptive
parents and adoption agencies are as follows:

40
Adoptions from the U.S, available at:
http://travel.state.gov/content/adoptionsabroad/en/hague-convention/adoptions-from-the-us.html
41
Outgoing Cases: Guidance on 22 CFR 96.54(a), available at:
http://travel.state.gov/content/adoptionsabroad/en/hague-convention/outgoing-cases-guidance-on-22-cfr-96-54-
a.html
42
Factsheet for families, ‗Inter-country Adoption: Where Do I Start?‘, July 2014, available at:
https://www.childwelfare.gov/pubPDFs/f_inter.pdf
43
Ibid
44
Ibid
 a) Health and Behavioral and Mental Health Considerations: When reviewing the
information of a child with whom you are matched, you should consider their expected
health and behavioral and mental health needs.
b) Meeting Immigration and Citizenship Requirements: The legal adoption or guardianship
process begins after you accept a referral for a specific child. In some countries, families
are required to travel to the child‘s country of origin to finalize the adoption in the foreign
court. In others, guardianship of the child will be transferred to the prospective adoptive
parents or to their adoption services provider, but they must finalize the adoption in U.S.
courts to fulfill USCIS requirements.
c) Obtain proof of your child‘s U.S. citizenship: Either a Certificate of Citizenship issued by
USCIS or a U.S. passport provides proof of U.S. citizenship for children who become
citizens through adoption.
d) Proof of Citizenship: A Certificate of Citizenship issued by USCIS or a U.S. passport
issued by the U.S. Department of State provides proof of U.S. citizenship for children
who become citizens through adoption. This is different from the certificate provided
with Convention adoptions, which are issued at the time of adoption, affixed to the
foreign adoption decree by the U.S. Department of State, and states that the adoption is in
compliance with the Convention. The process for obtaining the Certificate of Citizenship
depends on the type of visa your child was issued. 45
e) Time frame for the procedure: Like in every adoption, the inter-country adoption
involves several uncertainties. The length and predictability of the process vary
depending on the country, adoption service provider, and individual child involved, but it
generally takes from 1 to 5 years to complete an inter-country adoption.46
f) Age of available children: The age of available child which needs an adoptive family
varies extensively, from 6 months to 16 years, depending on the country. In 2012, 10.4
percent of children adopted internationally were younger than 12 months old, 42.7
percent were ages 1 to 2 years, 15.0 percent were ages 3 to 4 years, 23.7 percent were

45
Ibid
46
Ibid
 ages 5 to 12 years, 7.7 percent were ages 13 to 17, and less than 1 percent were 18 years
or older.47
g) Eligibility requirements for adoptive parents: The next essential is an eligibility for an
adoptive parents, in addition to U.S. immigration rules, different countries have its own
requirements for prospective adoptive parents which based on certain characteristics likes
age, marital status, family size, sexual orientation, parents‘ health, religion, and others,
and the same applies to US too.48 Page no. 112
The Hague Convention applies to an outgoing (emigrating) adoption of a child resident in the
United States by a prospective adoptive parent(s) resident in a foreign Convention country
(receiving country), where the prospective adoptive parent(s) will move the child to the receiving
country after the adoption is completed in the United States or if custody is granted in the United
States for the purpose of final adoption in the receiving country. U.S. citizens living abroad in
another Hague Adoption Convention country who plan to adopt a child residing in the United
States or a third country, should be aware that the country in which they live may require them to
follow local adoption laws and procedures as the receiving country in a Convention adoption, in
order for the child to enter that country legally. Prospective adoptive parents should therefore
consult the Central Authority of the receiving country prior to initiating an adoption. 49 The
receiving country may require that an adoption be processed as a Hague Convention inter-
country adoption even in cases where the child and the prospective adoptive parents are U.S.
citizens. Adoptive parents‘ failure to comply with local adoption laws and procedures to which
their adoption may be subject could result in the adopted child‘s inadmissibility to enter the
receiving country or if admitted, difficulties regarding status and even custody. 50 If a U.S. citizen
residing abroad in another Hague Adoption Convention country, whose spouse or partner is not a
U.S. citizen plans to adopt a child residing in the United States, they should consult the Central
Authority of the country in which they are residing prior to initiating an adoption. The

47
Ibid
48
Ibid
49
Prospective adoptive parents may contact the Office of Children‘s Issues to seek assistance in accessing
information from the receiving country on the applicable adoption and immigration requirements, they can also
contact for information for Central Authorities in the Country Information section of the adoption website, available
at: www.adoption.state.gov
50
The Hague Convention on Inter-country Adoption: A Guide to Outgoing Cases from the United States Updated
December 2011 , available at:
https://travel.state.gov/content/dam/aa/pdfs/OutgoingCasesFAQs_2011.pdf
Department would consider an adoption of a U.S. child by a U.S. citizen to be a U.S. domestic
adoption if the prospective adoptive parent is domiciled in the United States or is planning on
returning to establish a domicile in the United States at any point before the child‘s 18th
birthday. However, if the prospective adoptive parent holds dual citizenship in the United States
and another Convention country, their spouse or partner is not a U.S. citizen, and/or the country
in which they live considers them to be habitual residents, that country may require them to
follow local adoption laws and procedures as the receiving country in a Convention adoption, in
order for the child to enter that country legally. 51

3.6.2 ADOPTION FROM UK

An inter-country adoption is an adoption of a child who is habitually resident in one country by
an individual or couple who are habitually resident in another country. 52 Adoption law governs
the bringing of children into the UK applies to all potential adopters consistently inhabitant in the
British Islands, irrespective of their domicile. In UK the procedure of inter-country adoption
starts with the approval process 53, approval process can be summarised in two stage review
process i.e. stage one review 54 and stage two reviews.55For adoptions effected under the Hague
Convention, the Department for Education (DfE) only processes applications for England. The
Devolved Administrations in Wales, Scotland, Northern Ireland and the Isle of Man Government
are Central Authorities under ‗The Hague Convention‘ and process casework for applicants in
their respective countries. However, the laws of adoption of UK could be summarised in three
phases, first the assessment by an adoption agency of the prospective adopters' suitability to

51
Ibid
52
Department for Education, ‗A guide to inter-country adoption for UK residents‘, available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/221756/Guide_20to_20intercountry_
20adoption_20for_20uk_20residents.pdf
53
The centre for Adoption, Getting Started with Inter-country adoption, available at:
http://www.icacentre.org.uk/adopters/intercountry-adoption/getting-started/
54
Stage one review of inter-country adoption required that there should be a registration of Interest Form accepted
by agency, secondly the Stage One of the Approval Process commences (normally 2 months), thirdly it should have
a preparation course which should be attended be prospective Adopters, fourthly, Prospective Adopters should
gather information for Adoption Portfolio and lastly Agency which undertakes all statutory checks on prospective
adopters.
55
Stage Two of the Approval Process (normally takes 4 months)
 Attendance at additional training( if required)
 Home Study Assessment with Social Worker
 Adoption Panel and Recommendation as to suitability
 Agency Decision Maker approval
Papers sent to the Department for Education for processing and issue of Certificate of Eligibility before sending
overseas to country
adopt a child; secondly issuance of certificate; thirdly the prospective adopters, and others, to
take various steps-these will depend on the circumstances of a particular case (a general
overview is set in section 7 56). The procedure for inter-country adoptions in England and Wales
may be summarised as follows:
1. The prospective adopters are assessed as suitable to adopt by a UK adoption agency. The
assessment, which is often referred to as a 'home study', involves in-depth interviews with
a social worker, medical checks and police checks. 57
2. When the assessment process is complete, a prospective adopter's application will be
considered by the agency's adoption panel, which will make a recommendation on
whether the applicant(s) are suitable to adopt. An approval decision will then be made by
a senior manager in the agency, known as the agency decision maker. 58
3. The application is then passed to Department for Education or the Welsh Assembly
Government which checks that the paperwork is in order and complies with the relevant
legislation. The Certificate of Eligibility is printed.59
4. The application, including the Certificate, is then notarized and legalized depending on
the requirements of the country where the child to be adopted is living. 60
5. The Department for Education, or (for Welsh Hague Convention cases) the Welsh
Assembly Government, then sends the Certificate and supporting documents to the
relevant foreign authority.61
6. The relevant authorities in the other country will match the prospective adopters with a
child. In a Hague Convention case, documents on the child must be sent to DfE or to the
Welsh Assembly Government by the relevant foreign authority, and are forwarded via the
adoption agency to the prospective adopters. In non-Hague cases, matching information
on the child might be sent directly to the prospective adopters by the adoption agency
abroad, or it may be sent to the Department for Education. 62
7. The adoption agency and the prospective adopters then meet to discuss the match.
Following that discussion, if the prospective adopters wish to pursue the match they will
56
Supra 52
57
Ibid
58
Ibid
59
Ibid
60
Ibid
61
Ibid
62
Ibid
 travel to visit the child in the relevant country and then notify their adoption agency that
they wish to proceed with the adoption. 63
However, it depends on the country in question, the prospective adopters will either obtain an
adoption order in the relevant country or bring the child back to the UK and adopt the child here;
in either case the child will need entry clearance (i.e. immigration clearance) to enter the UK.
Unless there has been an overseas adoption which is recognised in the UK, on return with the
child to the UK the adopters will need to give formal notice to their local authority of their
intention to apply for an adoption order. Following a Hague Convention adoption in the child's
country of origin, the child may be able to obtain a British passport, in which case separate entry
clearance would not be required. 64To apply for an adoption order in England and Wales you
must be at least 21 years of age and the adoptee (or if a couple, one of them) must be domiciled
in the British Islands (i.e. England, Wales, Scotland, Northern Ireland, the Channel Islands or the
Isle of Man) or (if a couple, both of adoptee) must have been habitually resident in the British
Islands for at least one year. Adoption agencies will consider these issues when counselling
prospective adopters and advising them of the process, and in assessing their suitability to adopt
a child. Instead, a similar, but more complex set, of procedural requirements applies. Failure to
comply with these requirements will mean that the adoption cannot be a Hague Convention
adoption, and section 83 will then apply. 65 Except that Section 50(2) of the Adoption and
Children Act 2002 provides that: An adoption order may be made on the application of a couple
where (a) one of the couple is the mother or the father of the person to be adopted and has
attained the age of 18 years, and (b) the other has attained the age of 21 years 66. There are three
main types of inter-country adoptions: 'Hague Convention', 'Designated List' and 'Other'. Briefly:
1) Hague Convention adoptions are inter-country adoptions to the UK from a country in which
the Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption
("the Hague Convention") is in force , and which are processed and certified in accordance with
the Hague Convention. The purpose of the Hague Convention is to establish safeguards to
protect the best interests of children and to produce a system of co-operation between countries

63
Ibid
64
Ibid
65
Section 50(2) of the Adoption and Children Act 2002, available at:
http://www.education.gov.uk/childrenandyoungpeople/families/intercountryadoption
66
Supra 52
to prevent child trafficking. 67 2) Designated List adoptions. Adoptions in countries listed in the
Adoption (Designation of Overseas Adoptions) Order 1973 (commonly known as 'the designated
list') are recognised in UK law and there is therefore no need to readopt the child in the UK for
the adoption to be recognised here. However, a separate application will need to be made for
British citizenship for the child. Decisions on the granting of citizenship are at the discretion of
the Home Secretary. 68 3) 'Other': An overseas adoption is not recognised in the UK if it is not a
Hague Convention adoption or made in a country on the designated list. The adopter(s) will need
to apply for an adopt ion order in the UK. An adoption order made in a UK court confers British
citizenship on the child if the adopters, or one of them, is a British citizen. 69 The Department of
Education (DfE) is responsible for the legal framework and provides information on procedures
in general terms. Prospective adopters must seek their own legal advice on matters such as: 1)
whether they are habitually resident in any part of the British Islands; 2) whether they are
required to comply with the relevant legislation; and 3) whether their proposed actions will
satisfy the requirements of the relevant legislation. 70

3.7TESTING OF HYPOTHESIS

The second hypothesis was all about measures of Inter-country adoption, in this the researcher
framed that the measures do notdiffer in USA, UK and India. For instance, in US they followed
first complete adoption process and then custody, UK it followed through adoption counseling,
and then custody but in India the adoption process completes after custody when adoptive
parents completes the adoption in their respective country. The whole scene gives the impression
that the adoption process do differs significantly, hence the hypothesis disproved vibrantly.

3.8 CONCLUDING REMARKS

The procedure for inter country adoption of India is similar with US and UK. The initiation is
this procedure is finds its similarities when it start with the submission of an application of
adoption. In India the application went to Guardianship Court but in US the application went to
Central adoptive agency and in UK every state has different procedure but majorly the

67
Ibid
68
Ibid
69
Ibid
70
Ibid
application is went to Central adoptive agency. However, in India the guardianship court sent the
application to specialised agencies, which is already there with in the case of US and UK.
In the second stage the role of different agencies came in to picture where the domestic agency
has to prepare the child report and the foreign adoptive agency has to prepare the home study
report where they have to provide relevant information about adoptive parents and prospective
adoptive child. This process is similar in India, UK and US.
In the next stage if the reports submitted by specialised agencies matched with the requirement
of adoption process, the application went to Guardianship Court for the further approval. In India
it has been governed according to the Guardianship and Wards Act, but in US and UK it has
been governed according to the legislation of inter country adoption... After the appointment of
Prospective adoptive Parents (PAPs) as Guardian, they fly to their domestic county and in their
own country they have to re-adopt the child and PAPs will become parents, but in US the PAPs
not appointed as guardian they appointed as parents according to US laws and on the similar note
of US, UK also not leave any scope of problem and also make PAPs as parents rather than
guardian. In the last phase i.e. after adoption India provides a rule of follow up procedure for
three years only (quarterly for first year and half yearly for the next two years). In US and UK
there is no such procedure as the adoptive parents already appointed as parents than the law of
the adoptive country will apply on parents. Hence, the inter country adoption procedure is well
drafted legislation in US and UK but not in India, so there is a dying need to draft a legislation
for India on Inter country adoption.