AN ANALYSIS ON THE RIGHTS OF THE ABANDONED CHILD

Updated: Jul 9, 2020

By Mr. Vignesh Baskaran.




1.INTRODUCTION


“In serving the best interests of children, we serve the best interests of all humanity”

-Carol Bellamy


Human population is considered to be the utmost wealth of the nation. The population will be highly productive if it is equipped with the sufficient skill in order to help in the Nation’s Development. In order to equip them with such a skill, it is necessary that the childhood is properly protected and utilized properly in an efficient manner. The international community have brought in many commitments to the State in order to protect the rights of the children. The most significant among them is the Convention on the Rights of the Child[i] which provides for the various rights to the child. One of the most significant right is the right to be cared by the parent, this right corresponds to the duty of the parent not to abandon the child. It also imparts the obligation on the state to protect the rights of the child and to support the parent in upbringing of the child. Article 23 of International Covenant on Civil and Political Rights[ii] necessitates the state parties to take necessary step for the protection of children in the case of dissolution of Marriage. The utmost motive is to provide a healthy environment for the upbringing of the child. The Constitution imbibes the fundamental duty upon the Parent or guardian to provide opportunities for education within the age of six to fourteen.

However, there are certain scenarios where the child is being abandoned by the parents due to various reasons. In such a scenario the protection of the child becomes utmost significance. If the child is not protected and tamed in the correct direction, he might even turn to be a criminal. This paper would analyse the rights of the child in such scenario for the proper realization of the human rights.


2. NEED FOR THE PROTECTION OF THE ABANDONED CHILD

The tender age of children is not to be abused and not to be forced by economic necessity to enter avocations unsuited to their age or strength[iii]. The Children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood is protected against exploitation and against moral and material abandonment[iv]. Thus, the Constitution creates an obligation on the state to protect the abandoned children.Some of the reasons for abandonment of the child are divorce between the parents, sex of the child, any birth defect, medical condition, genetic defect or conception of more than one baby.


3.RIGHT TO BE CARED BY HIS/HER PARENTS

The Convention on Rights of the Child[v] insists that States must ensure necessary protection and care for all children in their jurisdiction. They must take account of the rights and duties of parents and others legally responsible for the child. But there are many aspects of “care and protection” that individual parents cannot provide – for example, protection against environmental pollution or traffic accidents. And where individual families are unable or unwilling to protect the child, the State must provide a “safety net”, ensuring the child’s well-being in all circumstances.

Often, the obligations of State and parent are closely related – for example, the State is required to make available compulsory free primary education; parents have a duty to ensure education in line with the child’s best interests[vi]. Article 5, together with article 18 in particular, provides a framework for the relationship between the child, his or her parents and family, and the State.

Article 7(1) states that “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.” Thus, the Convention is pertinent in reinstating the right of the child to be cared by the parents and subsequent duty of the parent to take care of the child. The Convention further casts duty upon the State parties to provide an environment for facilitating such protection. Thus, it is clear that there is a duty on the parents to take care of the child including the child born out of surrogacy.


4. RIGHT TO DEVELOPMENT OF THE ABANDONED CHILD

The aspiration to create a better future is reflected in the reference to “succeeding generations” in the UN Charter, and the Convention on the Rights of the Child, which recognizes “the importance of international cooperation for improving the living conditions of children in every country.” Realizing the right to economic, social, cultural and political development, aimed at the constant improvement of human well-being, is key to a better future for our children. This right is enshrined in the 1986 UN Declaration on the Right to Development[vii], whereby every person and all peoples are entitled to participate in, contribute to, and enjoy the benefits of development.

5. OBLIGATION OF THE STATE TO TAKE CARE OF THE ABANDONED CHILD

Article 27(2) of CRC emphasis on the State assisting parents in the exercise of their primary responsibility to secure children’s living conditions, rather than directly assisting the child, is both self-protective and principled: self-protective, because the drafting nations were anxious not to be placed under duties to support the children of rich parents, or to allow parents generally to offload their responsibilities onto the State; principled, because – as the Convention stresses – children have a right wherever possible to be cared for by their parents and kept within a family environment. Article 27 reaffirms the principle established in article 18 that while both parents have primary responsibility for their children; the State also has obligations to support parents in the role of protecting and promoting the well-being of their children[viii].


6. INSTITUTIONAL MECHANISM IN INDIA TO TAKE CARE OF THE ABANDONED CHILD

The Juvenile Justice (Care and protection of Children) Act, 2015 provides for the institutional mechanism for the protection of the Abandoned Children. According to the Act the Abandoned Child Means a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry[ix]. Any child in the need of care and protection may be produced before the Child Welfare Committee by a police officer, public servant, child line services or Voluntary NGOs, Child Welfare officer or probation officer, any social worker or public spirited person, by the child himself or by any nurse, doctor or management of the nursing home within 24 hours excluding the journey time[x]. Then the committee will place the child in one of the institutional care mechanisms provided under the Act.


7. CONCLUSION

The Convention on the Rights of the Child and the Constitution of India provides various rights for the child including the right to parenthood and this has a parallel duty upon the parent to take care of the child and not to abandon them. This also imparts the duty upon the state to take care of the children where the parent has abandoned the child or not in a position to take care of the Child. However, there is a continuation of the abandonment of the child in India due to various reasons even after the penalty is provided under Section 317 of the Indian penal Code. Thus, there is a need for specific measures such as counselling and more sociological methods to be adopted by the state in enhancing children care.


[i]Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3. [ii]International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. [iii]INDIA CONST. art 39, cl. e. [iv]INDIA CONST. art 39, cl. f. [v]Supra note 1. [vi] Article 3(2) of CRC, Implementation Handbook for the Convention on the Rights of the Child, 3rd Edition, published by UNICEF. [vii]Declaration on the Right to Development, Dec. 4, 1986, A/RES/41/128. [viii] Article 27(2) of CRC, Implementation Handbook for the Convention on the Rights of the Child, 3rd Edition, published by UNICEF. [ix] Section 2(1), The Juvenile Justice Act, 2015, No. 2, Acts of Parliament, 2016 (India). [x] Section 31, The Juvenile Justice Act, 2015, No. 2, Acts of Parliament, 2016 (India).





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