Childcare institutions under the Juvenile Justice (Care and Protection)

Act, 2015

Introduction
Many children in this country do not have a secure home or family. These
children include orphans, abandoned, surrendered, and trafficked children, as
well as children whose families are unable to care for them. Children in need of
care and protection are put in places like children’s homes, open shelters,
observation homes, special homes, places of safety, and specialized adoption
agencies. According to a study conducted by the Ministry of Women and Child
Development, the country has over 9,500 institutions housing over 3,70,000
children. The Juvenile Justice (Care and Protection) Act 2015 (hereafter
referred to as JJ Act 2015) was enacted to cater for the best interest of the
child, and in 2016, the Juvenile Justice (Care and Protection of Children)
Model Rules (hereinafter referred to as JJMR 2016) were enacted by the
Ministry for the said purpose.

In compliance with the Convention on the Rights of the Child, India’s

commitment to such children is reaffirmed in the National Policy for Children
of 2013. “The State shall endeavour to secure the rights of children temporarily
or permanently deprived of parental care by ensuring family and community-
based care arrangements, including sponsorship, kinship, foster care, and
adoption, with institutionalization as a last resort, with due regard for the
child’s best interests and guaranteeing quality standards of care and
protection.”

Observation Homes

An Observation Home (hereinafter referred to as OH) is a child-care facility that

is “for the temporary reception, care, and rehabilitation of any kid claimed to
violate the law, while an inquiry is pending.” as per Section 47 of the JJ Act
2015, the State Government shall create and operate Observation Homes in
each district or set of districts, either independently or through voluntary
organizations or non-governmental organizations (NGOs). The JJMR, 2016,
Rule 29(1)(i) states that separate OHs for boys and girls, as well as age-based
segregation, should be implemented, taking into account physical and mental
health, as well as the severity of the offence committed.

During the pendency of any investigation, these homes will be constructed in

every district or for a group of districts for the temporary reception, care, and
rehabilitation of any child believed to violate the law. Rule 9 of the JJMR
2016 states that if a child cannot be brought before the Juvenile Justice Board
(JJB) or a single member due to odd hours or distance, the Child Wellbeing
and Protection Officer (CWPO) should hold the child in the OH or suitable
facility and produce the child before the JJB within 24 hours after arrest. If a
child is denied bail, he or she may be placed in an OH.

Special homes
A Special Home is an institution that is responsible for “housing and providing
rehabilitative services” to children who have been found guilty of a crime and
ordered by the JJB or the Children’s Court to be placed there as defined
under Section 2(56) of the JJ Act, 2015. Section 47(1) obliged the State
Government to create and maintain Special Homes also in each district or
group of districts, either independently or through volunteer organizations or
non-governmental organizations (NGOs).

Rule 29 (1)(ii) of the JJMR 2016 states that there should be distinct Special
Homes for girls beyond the age of ten, boys between the ages of eleven and
fifteen, and boys between the ages of sixteen and eighteen. Children in the
Special Home should be divided into groups based on the nature of their
offences and their mental and physical condition.

Place of Safety
A “Place of Safety” is a child-care facility for children who have been accused of
or found to violate the law as per Section 49 of the JJ Act 2015, at least one
haven should be established by the state government. Separate arrangements
and facilities should be created for children or people under investigation and
children or people who have been convicted. As noted in Section 2(46) of the JJ
Act 2015, it must not be a police station or a jail. It can be set up on its own or
as part of an Observation Home or Special Home. The person in charge of the
safe-haven should be willing to accept the child if the JJB or Children’s Court
issues an order. After being found guilty, people can be held in a safe facility
while their case is being investigated and while they are being rehabilitated.

The JJB or Children’s Court can order a person to be transported to a safe

place in six different circumstances as per Section 18, 19, and 49 of the JJ Act
2015 along with Rule 29 of JJMR 2016:

1. For juveniles aged 16 to 18 years who are suspected of committing a

heinous crime while the investigation is ongoing;
2. Juveniles aged 16 to 18 years are found to have been involved in a
heinous crime after the investigation is completed;
 3. For persons above the age of 18 who are accused of committing an
offence while under the age of 18 pending investigation;
4. For persons over the age of 18 who are found to be involved in an offence
after the investigation is completed;
5. For children placed in protective custody by the Board under clause (g) of
sub-section (1) of Section 18 of the Act because their conduct and
behaviour are such that the JJB believes it is not in the child’s or other
children’s best interests to keep them in a Special Home;
6. For a person whose claim to be a child is being investigated and is
required to be kept in protective custody.
Section 49 of the JJ Act states the setting up of a place of safety. It notes that a
person above the age of eighteen years or a child in conflict with the law who is
between the ages of sixteen and eighteen years who is suspected of or guilty of
committing a heinous offence shall be placed in at least one place of safety in a
State listed under Section 41 of the JJ Act. Every place of safety must have
separate preparations and facilities for the accommodation of such children or
persons throughout the investigation process, as well as children or persons
who have been convicted of committing an offence. The State Government may
prescribe the types of sites that can be recognized as places of safety under
subsection (1), as well as the amenities and services that can be offered there,
through laws.

Every year, the District Child Protection Unit (DCPU) is required under Model
Rule 85 (iv) to perform an evaluation of the child put in the place of safety and
transmit the report to the Children’s Court. There is uncertainty over whether a
person or a kid who has crossed the age of 18 at the time of apprehension or
during the investigation should be placed in an institution. The JJ Act makes
this extremely plain. It stipulates (under Section 49) that the State Government
shall establish at least one place of safety in a state, fully registered under
Section 41, in which such persons or children shall be lodged if apprehended
after the age of 18 years. A CICL between the ages of sixteen and eighteen who
is accused of or convicted of committing a serious crime will be placed in a
Place of Safety as well.

As observed in the Handbook of Advocates, when the child’s Place of Safety and
Special Home is not established in the district where the child’s family lives or
in the district where the concerned JJB/Court Children’s has jurisdiction over
the child’s case, the child’s right to contact with family is denied. All of this
could have an impact on the child’s reformation assessment when he or she
reaches the age of 21. In such cases, the attorney can file a video-conferencing
application. The lack of rehabilitative services within the Place of Safety can
also be brought to the attention of the Children’s Court and the JJB. This
implementation gap could also be brought to the attention of the High Court
Committee and Juvenile Justice.
Fit facility
The JJ Act allows for the temporary or short-term placement of children in a
“Fit Facility.” Section 2 (27) defines a fit facility as one that is managed by the
government or by a voluntary or non-profit organization and is prepared to care
for a child temporarily for a specific purpose.

Section 51(1) of the JJ Act 2015 empowers the JJB or the Child Welfare
Commission (CWC) to recognize a facility run by a governmental organization
or a voluntary or non-governmental organization (NGO) registered under any
law currently in force as being fit to temporarily take responsibility for a child
for a specific purpose. This is done after a thorough investigation into the
facility’s and the organization’s suitability to care for the child in the manner
that may be prescribed.

It’s critical to distinguish between a fitness centre and a residential residence.

While a residential home (Observation Home, Special Home, or Children’s
Home) strives to provide long-term care, a Fit Facility is simply supposed to
care for the child temporarily. Some instances are as follows:

 A child with a substance abuse problem may be placed in a de-addiction

centre by the CWC or JJB if the institution is deemed suitable for the
child.
 A specialized hospital may be deemed a suitable institution if a child is
suffering from a sickness that necessitates special treatment or
quarantine.
 The JJB has the authority to release a child on probation and place him
or her in a suitable institution, as well as to order that the child be
supervised by a Probation Officer who must provide periodic reports in
Form 10 for three years.
 After speaking with the child, the CWC may issue orders for the child to
be placed in safe care in a suitable facility until he or she can be put into
a home or returned to their parents or guardians.
According to Model Rule 11(8), if the child is placed in a fitness facility, the JJB
shall consider the fit facility or special home that is closest to the child’s parent
or guardian’s house, unless it is not in the best interest of the child to do so.

Any facility seeking to be recognized as a fit facility must meet the following
requirements:

1. Meet the basic standards of care and protection for children;

2. Provide basic services to any child placed with it;
 3. Prevent any form of cruelty, exploitation, neglect, or abuse of any kind to
any child placed with it; and
4. Follow the Board’s or Committee’s orders.

The procedure followed if a child runs away from a child care institution
Section 26 of the JJ Act 2015 describes the situation where if any child has
escaped from an Observation Home, Special Home, or other places of safety, or
from the care of a person or institution under whom the child was put by a
JJB/Court Children’s order, can be taken into custody by the police. The child
must then be produced within 24 hours of the JJB that approved the original
order or the JJB closest to the location where the child was discovered. The
JJB should figure out why the child ran away and then issue instructions for
the child to be returned to the same or a comparable location or person. It can
also include extra instructions for any specific actions that must be taken in
the child’s best interest.

There should be no further procedures brought against such a youngster. For

example, if a child runs away from an Observation Home because of sexual
assault by a staff member, the JJB may opt to move the child to a different
facility. It could also mandate counselling and medical evaluations in the
child’s best interests, as well as direct the police to file an FIR.