THE Tsunami (Special Provisions) Act, No. 16 of 2005 came into operation on June 13, 2005.
PART II of the Act makes special provision with regard to the care and custody of children and young persons who have been orphaned or left with a single parent, consequent to the tsunami. The Act defines a 'child' as a person under 18 years and a 'young person' as a person between 18 and 21 years.
The reference to a 'child' and to a 'young person' hereafter, will be to those who are within the respective age groups referred to above and who were orphaned or were left with a single parent as a result of the tsunami.
The Act provides for a highly protective regime for these children and young persons and is based on some fundamental principles. These are that -
* they need special treatment and counselling in view of the trauma they have undergone;
* such treatment and counselling should be provided early and will help to negative adverse effects that could otherwise be carried on to adult life;
* the one year period during which they are placed in foster care should be used to ensure that such treatment and counselling is provided;
* monitoring of foster care will enable an assessment to be made of the suitability of foster parents to be adoptive parents, if they ultimately wish to adopt the child;
* a one year foster care period should precede adoption;
* young persons should also have the benefit of foster care since this age group is often in need of emotional and financial support. Placing them under foster care does not detract from their rights as majors but merely offers support;
* placing these children in institutions should be avoided because they need a family and home environment.
Who can be placed under foster care?
The following can be placed under foster care -
* An orphaned child;
* The child of a single parent who cannot care for the child and who wishes to place the child under foster care;
* An orphaned young person who wishes to be placed under foster care;
* A young person left with a single parent and who is in need of care and protection which such parent is unable to provide, if the young person wishes to be placed under foster care.
The National Child Protection Authority (hereinafter referred to as the NCPA) is the Guardian of every child who is an orphan and of every child left with a single parent and who is placed under foster care by that parent.
The NCPA is the Guardian of such children even if they are in the custody of any other person or in an institution.
This is to ensure that these children are adequately cared for and that current custodians and thereafter foster parents are accountable to the NCPA for what they do with these children.
The NCPA will endeavour to find foster parents for these children.
It is the duty of the NCPA to ensure that every child who is not under foster care is provided with adequate care, custody, protection and education and any special care that may be required in view of the emotional trauma suffered. It is the duty of the NCPA to find suitable foster parents for such children.
Will the NCPA act on behalf of young persons?
Requesting foster care
Children who are orphans - the NCPA will be responsible for finding foster parents;
Children with single parents - the parent must inform the NCPA before December 13, 2005 i.e. within six months of the Act coming into operation, if the parent wishes the child to be placed in foster care;
Young persons - the young person who wishes to be placed in foster care, must inform the NCPA of that fact.
The address of the NCPA is No. 330, Thalawathugoda Road, Madiwela, Sri Jayawardenapure, Kotte.
Is it compulsory for a current custodian to apply for foster care of the child in their custody?
No. A current custodian can choose not to be a foster parent. In such an event, the child could be placed in foster care with others.
What is the position of young persons who are placed in foster care?
Young persons are those between 18 and 21 years and are therefore persons who have reached the age of maturity.
While in foster care, they will receive the care of the foster parents, but do not give up any of the rights of elders. Requesting foster care is a matter of choice left entirely to the discretion of the young person.
Who can apply to be a foster parent?
Any person including an individual who is registered as a current custodian may apply to be a foster parent. Couples are preferred.
However, a single parent will be considered if it is in the best interests of the child.
Can an institution apply for foster care?
No. Not even an institution that has registered as a current custodian can apply for foster care. The reason for this exclusion is that it is considered extremely important to place children within a family environment.
Making an application for foster care
An application to be a foster parent/s must be made to the Magistrate's Court within whose jurisdiction the applicant/s reside/s.
In the case of a current custodian, the application should be made within one month of being registered as a current custodian.
A copy of the application must be forwarded to the NCPA along with additional information required under the Act.
The application will then be evaluated to assess the suitability of the applicant/s to be foster a parent/s.
Evaluation is done by a specially constituted Foster Care Evaluation Panel in terms of criteria set out in the Act and a Home Study Report. The criteria in the Act are designed to address the best interests of the child.
Evaluation Panels will function at provincial level and each panel will consist of the Chairperson of the NCPA or his nominee, a nominee of the Sri Lanka College of Paediatricians, the Provincial Commissioner of Probation and Child Care Services or his nominee, a psychologist and a psychiatrist nominated by the NCPA and the Provincial Director of Education or his nominee.
The foster parent has the same responsibilities as a natural parent. Therefore, it is the duty of a foster parent to provide all care and protection and to exercise control and discharge obligations including that of providing education and any special care that may be needed in view of the emotional trauma suffered.
Duration of the Foster Care Order
In the case of a child, a Foster Care Order will be valid for one year at the outset. An Order may be renewed every year until 21 years but after the initial one year, an application for adoption, if made, will be given preference.
In the case of a young person the Order will be valid until the person reaches 21 years or an earlier age that may be specified in the Order.
The young person can always indicate the period for which he desires to have foster care because no foster care order will be made without the consent of the young person.
Functions of Monitoring officers
The Monitoring Officer is required to monitor the performance and discharge of the duties and obligations imposed by the foster parent/s and to submit quarterly reports to the NCPA.
The Officer is required to consult the foster child or young person as well in submitting the report. These reports are required to be evaluated by the Evaluation Panel.
Powers of Monitoring Officers
Monitoring Officers have the right to enter premises in which the child or young person is resident and to question any person/s. Obstructing a Monitoring Officer in the performance of his duties is a punishable offence and in such an event, the Magistrate's Court may also revoke the Foster Care Order.
Monitoring of foster care is considered to be extremely important in view of the possibility of abuse of care.
A Foster Care Order can be revoked by Court if care is unsatisfactory. In such an event the Court is empowered to order alternate care.
The Act recognises that any person including a foster parent may make an application under the Adoption of Children's Ordinance, for the adoption of a child.
An application for adoption may be made by a foster parent or any other person and may be made after nine months of the making of the Foster Care Order. Such an application must be made under the Adoption of Children Ordinance and to the District Court within whose jurisdiction the child is resident.
No adoption is permitted unless a child has first been placed under foster care for one year. The reason for this is that a child who is under emotional stress needs counselling and treatment for trauma and this should be imparted at the earliest.
Care and protection can be monitored during foster care to ensure that special counselling and treatment is given. After adoption there is no monitoring and there can be no assurance that these children will receive the required counselling/treatment.
What happens if there is more than one application for the same child?
The court will make a determination having regard to the best interests of the child.
Applicability of provisions of the Adoption of Children Ordinance
Section 3 of the Ordinance sets out certain restrictions to the making of an Adoption Order and section 4 sets out the matters regarding which the court must be satisfied before making an Adoption Order. These provisions continue to apply to these applications as well.
In the case of a child under ten years, an Adoption Order can be made only with the consent of the NCPA.
In the case of a child who does not possess a birth certificate, the court is required to specify in the Adoption Order, the date of birth of the child. Where the date of birth is not known, the probable date of birth as certified by a Medical Practitioner is required to be stated.
After making the Adoption Order, the court is required to direct the Registrar General to issue forthwith a certificate of birth to the child.
(Ministry of Justice and Judicial Reforms)