Mr David Kenneth Hambly & Anr v. Mr Pinto Kumar

order to be declared legally free for adoption, a 'surrendered' child shall be any of the following:

(i) born as a consequence of non-consensual relationship;

(ii) born of an unwed mother or out of wedlock;

(iii) a child in whose case one of the biological parents is dead and the living parent is incapacitated to take care;

(iv) a child where the parents or guardians are compelled to relinquish him due to physical, emotional and social factors beyond their control;

(b) serious efforts shall be made by the Committee for counselling the parents, explaining the consequences of adoption and exploring the possibilities of parents retaining the child and if, the parents are unwilling to retain, then, such children shall be kept initially in foster care or arranged for their sponsorship;

(c) if the surrender is inevitable, a deed of surrender in Form XV shall be executed on a non-judicial stamp paper in the presence of the Committee; Page 13

(d) the adoption agencies shall wait for completion of two months reconsideration time given to the biological parent or parents after surrender;

(e) in case of a child surrendered by his biological parent or parents, the document of surrender shall be executed by the parent or parents before the Committee;

(f) after due inquiry, the Committee shall declare the surrendered child legally free for adoption in Form XIII as the case may be after a sixty days' reconsideration period as per Central Adoption Resource Agency guidelines.

(5) For the purposes of section 41 of the Act, 'court' implies a civil court, which has jurisdiction in matters of adoption and guardianship and may include the court of the district judge, family courts and city civil court."

¶13CARA has issued separate guidelines for inter-country and in-country adoptions. The underlying theme is that placement agencies involved in adoption and those wanting to adopt children should comply with these guidelines. Registration of applications with respective state governments is a pre-requisite. No Objection Certificate [NOC] from CARA is essential in case of all inter-country adoption, before placement agency processes the application in competent Judicial Courts. CARA relies on the following provision of the guidelines: "40. Adoption by foreign nationals living in India.- (1) In case of foreign nationals who are citizens of a country that has ratified the Hague Convention and they have been living in India for one year or more, the PAP(s) shall approach CARA along with a certificate of No-objection to Page 14 the proposed adoption from the embassy or mission of the country of their nationality."

(2) On receipt of the No Objection Certificate, CARA shall refer the case to a RIPA for carrying out the Home Study and preparation of PAP(s)' dossier.

(3) The procedures stipulated under these Guidelines for inter-country adoption shall be followed by the RIPA.

(4) In cases referred to in sub-paragraph (1), the Embassy or Missions in India or the country of the nationality of the PAPs shall give an undertaking for post-adoption follow-up as stipulated in Chapter IV of these guidelines.

(5) In case, the PAPs continue to reside in India during the stipulated post-adoption follow-up period, the concerned RIPA would undertake such follow-ups and report to the concerned embassy or mission and CARA.

(6) The concerned embassy or mission shall also ensure that the adopted child acquires citizenship of the country of his or her parents immediately after adoption decree and a copy of the citizenship order shall be forwarded to CARA and the concerned RIPA."

¶14The acronym PAP means "Prospective Adoptive Parent" (under rule 2 (z) of the Guidelines); RIPA means "Recognized Indian Placement Agency" (in terms of rule 2 (aa) of the Guidelines) and SARA stands for "State Adoption Resource Agency" (rule 2 (zc)). Under Rule 31, an Adoption Recommendation Committee (ARC) has to be set up which will consider the application of the PAP with copies of the dossier forwarded by RIPA including a Home Study Report

(HSR) with the other material, and the requisite fee (Rule 31 (4)). The ARC (or SARA, wherever one does not exist in a State) has to process Page 15 the request and issue the recommendation certificate within 15 days. Under Rule 61 of the guidelines, a Specialized Adoption Agency can be recognized as a RIPA.

¶15In the present case, the report of the CWC dated 26th June, 2014 itself was preceded by a report after inquiry by a Specialized Adoption Agency, i.e. Director, Welfare Home for Children, 1B, Institutional Area, Sarita Vihar, New Delhi. Having regard to this circumstance, and the further fact that the CWC has made further inquiries into the matter and satisfied itself about the feasibility of the Appellants' application for adoption of Sarah, and that a certificate declaring that she is legally free to be given in adoption has been issued under Section 41 of the JJ Act and the Rules, this Court is of the opinion that the further formalities should be fulfilled in accordance with Rule 40 of the CARA guidelines. Since the Specialized Adoption agency has conducted an inquiry leading to the CWC's certificate, the CARA should avoid duplication in regard to further procedures and insist upon fulfilment of only those, which are essential to ensure control mechanisms are placed as well as appropriate prescribed clearances from the High Commission or the foreign mission concerned are obtained, in respect of the prospective adoptive parents.

¶16In the light of the above discussion, the impugned judgment and order is set aside. The matter is remitted to the Family Court, Saket, which will now proceed to monitor the further progress of the Appellants' request for adoption, and pass appropriate orders after ensuring that CARA's clearance is secured. The parties are directed to Page 16 be present before the concerned Family Court on 25.08.2014 for further proceedings. Taking note that a considerable amount of time has already lapsed in this matter, CARA shall endeavour to complete the formalities within 8 weeks from today; the Court shall complete and issue final orders within 4 months from today. The appeal is consequently allowed in these terms. S. RAVINDRA BHAT (JUDGE) NAJMI WAZIRI (JUDGE) AUGUST 14, 2014

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 01.08.2014 Pronounced on: 14.08.2014 + MAT. APPL.(F.C.) 57/2013, C.M. NOS. 17958/2013 & 17959/2013 MR. DAVID KENNETH HAMBLY AND ANR...... Appellants Through : Sh. Robin. R. David with Sh. P.K. Singh and Sh. Febin Mathew, Advocates. Versus MR. PINTO KUMAR ..... Respondent Through : Sh. Sh. Sanjeev Narula, Sh. Ajay Sondhi and Ms. Shagun, Advocates. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S. RAVINDRA BHAT C.M. NO. 17958/2013 (for condonation of delay) For the reasons mentioned in the applicaton, C.M. Appl.17958/2013 is allowed. C.M. NO. 17959/2013 (for exemption) Allowed, subject to all just exceptions. 1. The Appellants question the judgment and order of the Family Court, Saket in an application (GP No.6 of 2013) under Sections 7, 8, 9 and 10 of the Guardians and Wards Act, 1890 (hereafter "the Page 2 Guardianship Act") dated 05.07.2013, for the guardianship of a minor girl child (Sarah Singh). 2. The brief facts are that Sarah Singh was born on 07.08.2002; she became an orphan after the death of her mother (Smt. Sitapati) on 16.08.2010 and her father (Sh. Lalman Singh) on 28.08.2010. She then stayed at a shelter home in Dwarka, New Delhi for roughly six months from September 2010 to February 2011 (since one of her paternal uncles, Jai Kishan worked there). She was later taken into custody by her other paternal uncle, Pinto Kumar (the Respondent herein). This uncle too was unable to take care of the child's needs properly: he was unmarried and was not possessed of the needed time and financial means to take care of the child's emotional and material requirements. The Appellants, who were his employers, David Kenneth Hambly and Anna Christine Hambly, a Canadian married couple living in Delhi for over 9 years and running a bakery business, stated that he shared his concerns about the girl Sarah with them, his employers. The Appellants do not have a child; apparently they began to meet the child and gradually developed a bond. Sarah has been in the care of the Appellants from June 2012. 3. In the background of these facts, the Appellants sought to adopt Sarah; they got an Investigation Report prepared on 03.05.2012 by Ms. Loraine Campos of Delhi Council for Child Welfare, Civil Lines, Delhi for the adoption/foster care placement of the minor child. Subsequently, the Appellants filed a Guardianship Petition under Sections 7/8/9 & 10 of the Guardianship Act, before the Family Court, Page 3 Saket, for the guardianship of Sarah Singh. They expressed their desire to adopt the child. This Guardianship Petition was dismissed by Principal Judge, Family Court, Saket on 05.07.2013. 4. The grounds for dismissal of the Appellants' application for adoption spelt out in the impugned order were firstly that no provision of law enabled the respondent to shift the custody and guardianship of the minor child to the Appellants; that secondly, the Appellants stated in their application that they want to adopt the child consequently, it is only a petition for the adoption of the child in such circumstances that would be maintainable and not for the appointment of guardians. The impugned order surmised that since adoption laws have now become very stringent in India, the Appellants sought to apparently avoid its rigors by filing a guardianship petition, which also appears to be collusive. Lastly, since the child is an orphan, the guidelines prescribed for adoption of Indian Children issues by Ministry of Women and Child Development, Govt. of India have to be followed. 5. After hearing the parties, the Court had by order dated 17.12.2013 sought the assistance of the Central Adoption Resource Agency ("CARA") in making an appropriate order, having regard to its experience, and expertise in regard to adoption, especially with regard to the 'control mechanism' that should be taken recourse to. The parties and CARA were also required to address the C