SC: NOC mandatory from receiving country for inter-country adoption

The Supreme Court on Friday ruled that a foreigner can adopt a child from India only after acquiring NOC (No Objection Certificate) from the diplomatic mission of that country in India.

Karina Jane Creed, an Australian national residing in India for the past four years, moved the apex court seeking a direction to Central Adoption Resource Authority (CARA) to issue NOC for adoption of two female siblings.

Karina claimed in 2016 CARA has already registered and processed her application, but refused to issue, thereafter, she began visiting the children and they identify her as their mother.

Gaurang Kanth, representing CARA, vehemently opposed Karina's claim stating that she has adopted a short-cut by moving the court instead of acquiring an NOC from Australian authorities.

"India and Australia are signatories of the Hague Convention, which aims to ensure best interests of the child, and guard it against trafficking. NOC from the receiving foreign country is mandatory as per the guidelines of the convention. If it is breached then it has larger ramifications especially related to the security of the child," said Kanth in a counter to Karina's petition.

A vacation bench comprising Justices Indira Banerjee and Ajay Rastogi queried Karina's counsel on the measures she has taken to avail visas for the children if adoption is completed.

Karina's counsel replied that the Australian authorities have issued a letter, but could not clarify if it would be sufficient to avail the visa.

Kanth countered that Karina has been residing in India for past four years, as a consequence, the Australian authorities could not conduct a home study report regarding her eligibility to adopt children.

"The foreign country has to prepare a home study report of the prospective adoptive parents and upon finding them eligible sponsor their application to CARA for adoption of a child from India," Kanth submitted before the court.

Upholding Kanth's argument, the court said, "A foreigner or a person of Indian origin or an overseas citizen of India who has habitual residence in India can apply for adoption of a child from India to CARA along with No Objection Certificate from the diplomatic mission of his country in India."

Then, the court queried Karina on a specific issue, "After the expiry of your visa in India, how do you propose to ensure travel for the adopted children to Australia? What is the surety that Australian government will recognise these children as part of your family and issue the visa?"

Her counsel could not answer the query to the court's satisfaction. Karina initially filed a petition in the Delhi High Court, which was dismissed, and then she challenged it in the top court.

According to the Article 5 of the Hague Convention, the receiving country has to determine if the prospective parents are eligible and suited to adopt, ensure the prospective parents have been counseled and the child will be authorised to enter and reside permanently in the country.

Kanth argued that Karina's petition failed to confer with this article.

Though, Kanth contended that CARA conducted a home-study regarding Karin's eligibility as a prospective parent and she fared well. "Then, we allowed her to establish contact with the children, who are based in Odisha. She met them many times and produced pictures with children establishing the bond," said Kanth.

The court observed that Karina has attached pictures in her petition and "it appears that the petitioner has built up a bond with the children who have also become very fond of the petitioner. Learned counsel appearing on behalf of the petitioner submits that the children know the petitioner as their mother. Admittedly, however, the children are not in pre-adoption foster care of the petitioner."

Dismissing Karina's petition the court noted that although it has sympathy for her, "but regret our inability to help her."

(Sumit Saxena can be contacted at sumit.s@ians.in)