As part of international actions coinciding with the G20 summit opening in New Delhi, mothers & supporters will gather outside the Indian High Commission to demand an end to children from the Global South being removed from their families and kept from them by social services in Global North countries.

Friday 8 September, 12.30pm, India House, London WC2B 4NA

The international Support Not Separation network joins mothers and campaigners in India calling on G20 governments to stop removing and holding our children. This includes children such as those featured in the landmark film Mrs Chatterjee vs Norway, whose Indian mother fought for three years to get them back after the Norwegian state took them.

An open letter from retired judges in India, including four former Supreme Court judges, calls on the G20 to address the increasing numbers of children taken from families from the Global South while they are living and working in Western Europe, UK, US, Australia and New Zealand.

PRESS RELEASE ISSUED IN INDIA

TOP RETIRED JUDGES WRITE TO G20 FOR RETURN OF INDIAN CHILDREN IN FOSTER CARE ABROAD

Some of India’s most distinguished retired judges, including four former Supreme Court Judges and two former High Court Chief Justices, have written to the G20 asking for a compassionate solution in the form of the repatriation of Indian children removed from their parents by state child agencies in Western Europe, the United Kingdom, North America, Australia and New Zealand.

The signatories are Justice Ruma Pal, Justice Vikramajit Sen, Justice AK Sikri and Justice Deepak Gupta, formerly of the Supreme Court of India; Justice AP Shah, who was Chief Justice of the Delhi High Court and Justice S Muralidhar who was Chief Justice of the High Court of Odisha; and Justice Manju Goel, Justice RS Sodhi and Justice RV Easwar, who sat in the High Court of Delhi.

Pointing to the isolation and loss of identity of Indian children placed with foster carers abroad having no ethnic or cultural links with the child, the judges have appealed for the initiation of a discussion in the G20. The letter includes a detailed discussion of the international conventions under which children have a Right of Return to their country of origin, as well as a right to the preservation of their nationality, identity, religion and language.

The judges suggest that a return to a safe placement in the home country is a more humane and compassionate solution for such children, than leaving them in foreign state custody for the entirety of their childhoods, to age out of foster care as aliens in the country of residence and with no ties with the country of origin.

The judges also state that there appears to be a need for better understanding of cultural differences and provision of good quality translators in child protection proceedings in the Global North.

The letter refers to cases in Norway and the United States of America where the Government of India has had to intervene for the sake of Indian children confiscated from their parents abroad.

They also point to the on-going cases with Germany and Australia, the latter resulting in the distraught mother taking her own life. The judges have urged a compassionate consideration of the Indian Government’s request in the German case for the child’s repatriation in the care of the Indian child welfare authorities. They say that this is a solution that respects the German system’s assessment of the parents, while enabling the child to atleast preserve her nationality and heritage. For queries please write to repatriate2023@outlook.com

lETTER FROM JUDGES

New Delhi

September 5, 2023

To,

The Honoured ‘Group of 20’ (G20) Members, Invitee States

And Invited Organisations:

His Excellency, the President of Argentina

His Excellency, thePrime Minister of Australia

His Excellency, the President of Brazil

His Excellency, thePrime Minister of Canada

His Excellency, the President of the People’s Republic of China

His Excellency, the President of the French Republic

His Excellency, the Chancellor of the Federal Republic of Germany

His Excellency, the Prime Minister of India

His Excellency, the President of the Republic of Indonesia

Her Excellency, thePrime Minister of the Italian Republic

His Excellency, thePrime Minister of Japan

His Excellency, the President of Mexico

His Excellency, the President of the Republic of Korea

His Excellency, the President of the Russian Federation

His Royal Highness, King Salman bin Abdulaziz Al Saud of Saudi Arabia

His Excellency, the President of South Africa

His Excellency, the President of the Republic of Turkey

His Excellency, thePrime Minister of the United Kingdom

His Excellency, the President of the United States of America

Her Excellency, thePrime Minister of Bangladesh

His Excellency, the President of the Arab Republic of Egypt

His Excellency, thePrime Minister of the Republic of Mauritius

His Excellency, thePrime Minister of the Netherlands

His Excellency, the President of Nigeria

His Royal Highness, Sultan Haitham bin Tarik of the Sultanate of Oman 

His Excellency, thePrime Minister of the Republic of Singapore

His Excellency, thePrime Minister of Spain

His Excellency, the President of the United Arab Emirates

His Excellency, the President of the European Council

Her Excellency, the President of the European Commission

The United Nations

The International Monetary Fund

The World Bank

The World Health Organisation

The World Trade Organisation

The International Labour Organisation 

The Financial Stability Board

The Organisation for Economic Co-operation and Development

The Hon’ble African Union

The African Union Development Agency AUDA-NEPAD

The Association of South East Asian Nations

The International Solar Alliance

The Coalition for Disaster Resilient Infrastructure

The Asian Development Bank

Re: Repatriation of Indian Children in Foreign State Custody

Excellencies, Royal Highnesses and Invited Organisations,

We, the undersigned retired judges of the Supreme Court and High Courts of India, welcome you to India and wish you a successful G20 Summit.

We are writing to appeal to you to initiate discussions regarding a pressing issue of concern to ex-patriate Indians on short- to medium- term work stay in Western Europe, the United Kingdom, North America, Australia and New Zealand.

We understand from news reports that this is an issue that affects other countries that send significant labour and work force to these countries and urge them to consider joining our appeal.

Recent years have seen vast numbers of Indians, especially software engineers, take up residence as ex-patriates in these countries on work placements. The families tend to be young, with small children. In most cases, the entire family, including the children, are passport-holding Indian citizens, and intend to return to India after a few years’ work experience.

As India does not permit dual citizenship, they are not citizens of the country of residence. Having newly arrived in the country of residence, they typically have no extended family, such as grandparents or siblings, living there.

Every year there are cases of children among these ex-patriate families being removed from parental care by the child protection authorities of the country of residence on grounds of abuse, neglect or risk of harm. Such children are placed in custody of the foreign child protection authority. While all children are entitled to kinship care when removed from parental custody, as these children have no extended family in the country of residence, they do not have that option.

Typically, these children are placed with foster carers who are native to the country of residence and without any ethnic or cultural links with the child’s country of origin. As a consequence, these children lose their identity and are unable to develop any bonds with their country of origin or their extended families. They age out of foster care in a state of double alienation – they are not citizens of the country of residence, and have no substantial ties with their country of origin. 

It is not for India to question the assessment of parents by the country of residence, although there does appear to be a need for better understanding of cultural differences and provision of good quality translators in child protection proceedings.

However, Indian children removed from parental care are the responsibility of the Government of India under international law.

For the reasons described above, a return to a safe placement in the home country is a more humane and compassionate solution for such children, than leaving them in foreign state custody for the entirety of their childhoods.

India has a robust child protection system, with a nationwide-network of district-level Child Welfare Committees. For your information, India is divided into states, and states into districts, so these Child Welfare Committees are closely connected with the children in their jurisdiction. Our Child Welfare Committees are autonomous statutory bodies, with the same powers as child protection agencies of developed countries to remove children from parental custody when they have been, or are at risk of abuse or neglect, and to place such children in kinship or foster care.

Under international laws discussed in the enclosed note (please refer to Annexure 1), there is already an existing international legal framework for the repatriation of such children to a safe placement in the home country, based on their Right of Return as nationals to the home country, and their right to preservation of their culture, language, faith and identity.

In view of these legal, compassionate and practical considerations, we urge you to take steps for initiating a discussion in the Group of 20 (G20) for the repatriation of Indian children in foreign countries who have been removed from their parents by child protection agencies.

India has already intervened on an ad hoc basis to obtain such repatriation of Indian children from Norway and the United States of America. There is currently a tragic case ongoing concerning an Indian baby of Gujarati origin in foster care Germany. The parental rights have been terminated and the Government of India has requested the child’s repatriation in the care and protection of the Indian child welfare authorities. This is a solution that respects the German system’s assessment of the parents, while enabling the child to atleast preserve her nationality and heritage. We urge Germany to consider this request compassionately.  

Already there has been a tragic case of an Indian mother committing suicide as Australian child protective services refused to repatriate her children. We must do all we can to avoid such tragedies repeating in the future.

Thanking you,

Yours sincerely,

Hon’ble Justice (rtd.) Ruma Pal, formerly of the Supreme Court of India

Hon’ble Justice (rtd.) Vikramajit Sen, formerly of the Supreme Court of India

Hon’ble Justice (rtd.) AK Sikri, formerly of the Supreme Court of India

Hon’ble Justice (rtd.) Deepak Gupta, formerly of the Supreme Court of India

Hon’ble Justice (rtd.) Manju Goel, formerly of the High Court of Delhi

Hon’ble Justice (rtd.) RS Sodhi, formerly of the High Court of Delhi

Hon’ble Justice (rtd.) AP Shah, formerly Chief Justice of the Delhi High Court

Hon’ble Justice (rtd.) RV Easwar, formerly of the High Court of Delhi

Hon’ble Justice (rtd.) S Muralidhar formerly Chief Justice of the High Court of Odisha

Annexure – 1

International Law regarding the Right to Repatriation of Children in Foreign State Custody

Under Article 3 of the United Nations Convention on the Rights of the Child (UNCRC), the primary principle in all actions concerning children by any court or state agency is the “best interests of the child”.

This means that any child services authority or family court in any country, and at all times, has the power to consider repatriation of a foster child to its home country, if this would serve its best interests.

Such children have a Right of Return to India under Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) which states that that no one shall be arbitrarily deprived of the right to enter their own country.

General Comment No. 27 (GC/27) to the ICCPR says in paragraph 19 that the right to enter one’s own country “includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person’s State of nationality).”

The UNCRC recognises the need of a child to be raised in a family environment.

The family has also been recognised in Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in Article 23(1) of the ICCPR as the “the natural and fundamental group unit of society”.

The importance of the involvement of family in a child’s life is also recognised in Article 10(1) of the ICESCR which enjoins State parties to give the “widest possible protection and assistance to the family”.

“Family”, includes “extended family” under Article 5 of the UNCRC. The concept of “extended family” is also recognised in paragraph 2 of General Comment No. 19 (GC-19) to the ICCPR.

If foster care in a foreign country effectively erases the child’s identity, then this is a very serious violation of its rights under international law.

Under Article 8(1), the UNCRC says that States Parties are obligated “to respect the right of the child to preserve his or her identity, including nationality, name and family relations”. The Preamble of the UNCRC says that due account has to be taken “of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.” Article 30 of the UNCRC states that children belonging to ethnic, religious or linguistic minorities “shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.”

It is also the responsibility of the State to respect a child’s faith. Article 14(1) of the UNCRC states that States Parties “shall respect the right of the child to freedom of thought, conscience and religion.”

Under Article 15 of the ICESCR State Parties are under a duty to recognise and preserve the rights of children to take part in cultural life. General Comment No. 21 (GC-21) to Article 15 of the ICESCR states that the right to take part in cultural life includes the rights of children “to learn and understand cultural values and practices of the communities to which they belong” and that children “play a fundamental role as the bearers and transmitters of cultural values from generation to generation.”

This principle is echoed in Article 29 (1) (c) of the UNCRC which states that “the education of the child shall be directed to……(c ) The development of respect for the child’s …..cultural identity, language and values, for the … the country from which he or she may originate.”

Paragraph 54 of GC-21 states that under Article 15 of the ICESCR States are obliged to provide “all that is necessary for the fulfilment of the right to take part in cultural life when individuals  are unable, for reasons outside their control, to realise this right for themselves with the means at their disposal.”

This inability to participate in cultural life exactly describes the predicament of children confiscated in foreign countries from their Indian families. Moreover, denying a child any possibility of growing in its country of origin and changing their nationality or forcing them to assimilate in the fostering country amounts to removing the children of any one group to another group, which is one of the five forms of genocide recognized under the United Nations Convention on the Prevention and Punishment of Genocide (Article II (e)). So a solution for children in foreign foster care is urgently needed.

Under Article 5(h) of the Vienna Convention on Consular Relations, 1963, the sending State is under an obligation to safeguard the interests of minors in the receiving State, particularly when matters of guardianship are involved. So the child’s right to the protection and involvement of the Embassy of her country is well-established in international law. The Vienna Convention provides for the consulate of the country of origin to be notified on the removal of minors from parental guardianship, however this is never followed in practice. Consular access is also denied to these Indian children.