Failing to Protect India’s Children - Analysing State Capacity Deficits

With 444 million resident children, child protection forms a crucial part of India’s social development agenda. This is especially pertinent given that recent statistics put 40% of children at risk of abuse and violence. (National Institute of Public Cooperation and Child Development, 2018). The government has instituted a comprehensive legal framework addressing the rights and protection mechanisms for children, to ensure that all children, particularly those vulnerable and marginalised have equitable access to welfare services. The core child protection legislation for children is enshrined in four main laws: The Juvenile Justice (Care and Protection) Act (2000, amended in 2015); The Prohibition of Child Marriage Act (2006); The Protection of Children from Sexual Offences Act (2012), and The Child Labour (Prohibition and Regulation) Act (1986, amended in 2016).  (UNICEF India, 2019) These legislations are designed to enforce provisions for children laid out by the United Nations Child Rights Convention (UNCRC). In 1992, India joined 196 countries in ratifying the UNCRC. The UNCRC stands as the guiding document for all child protection systems worldwide, built through years of multilateral, multinational negotiations for what an effective and inclusive child protection agenda looks like (National Human Rights Commission India, 2019)

In this essay, I argue that existing child protection mechanisms in India are limited in efficiency and efficacy because of glaring state capacity gaps. Given these limitations, I believe that our child protection agenda fails to be in consonance with the full spirit of the Convention on the Rights of the Child, particularly in centring the best interests of the child in the child protection system. I build this argument by analysing how three seemingly disparate factors contribute to this systematic devaluation of child protection, namely a strong paternalistic state, underinvestment in human capital, and poor data infrastructure. 

Background: 

While there is no doubt that a child grows up best with a family and family-based care should be preferred for every child, for some children, families and communities are often sites of violence. According to the Juvenile Justice Act of 2015, vulnerability in children can include: 

• Children on the streets without safe accommodation
• Orphaned, abandoned and destitute children
• Children engaged in paid labour
• Children who have been physically/sexually abused
• Children who are victims of commercial sexual exploitation and trafficking
• Children engaging in substance abuse
• Children in conflict and disaster situations
• Children in families ‘at-risk’
• Children with disabilities 
• Children with mental illnesses
• HIV / AIDS-affected / infected children
• Children in conflict with the law (Sachan, 2023)

Keeping these children safe involves cooperation between the district, state, and national governments, and other civil society actors like grassroots organisations, advocacy groups, and philanthropists investing in child protection. Given the limited reach of alternative family-care systems like adoption and foster care in India, any child protection measure including rescue, long-term stay, rehabilitation and social integration must be consciously aligned with the best interests of the child. To ascertain and maintain these best interests across different actors, promoting children’s participation in the protection strategy is essential. Children have a right to determine the nature and quality of all protection and provision that they have a right to. For the government to uphold this fundamental right, existing state capabilities must allow for all child protection activities to be designed, implemented and evaluated with the informed participation of the concerned children. This is of greater importance for children who are vulnerable and marginalised, whose rights are regularly stripped off as a result of their social identities and cultural oppressions. (Mehmoona Moosa-Mitha, 2005)

The power of engaging children deeply in the child protection agenda has been recognized in drafting the key legislation that governs child protection in India. Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015 expounds the Principle of Participation: “Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child‘s views shall be taken into consideration with due regard to the age and maturity of the child. Children‘s right to be heard shall include the creation of developmentally appropriate tools and processes of interacting with the child, promoting children‘s active involvement in decisions regarding their own lives and providing opportunities for discussion and debate.” (Agarwal, 2016)

While legal recognition is a fantastic first step, these great ideas falter upon implementation. The voices of vulnerable children are systematically ignored by state actors as they move through a complex, under-resourced child protection system. Three key factors govern this erasure of children’s voices and their best interests from the child protection agenda. 

1. A uniquely paternalistic state

A central tenet to ensuring child participation as ascribed in the UNCRC is respect for children’s views. Recognising children’s views requires professionals engaged in the child protection system to be open-minded about who is allowed to ask questions and the questions they are allowed to ask. A culture of healthy debate maintains the robustness and high standards of decision-making, particularly in ascertaining the ‘best interests of a child’. As an institution working in complex contexts of violence and violations of children’s rights in challenging sociopolitical and cultural realities, it is essential to continuously question what best interest means - about the evidence that is relied upon, the decisions taken for vulnerable children, and any missteps along the way. In determining the best interest, it is just as important to encourage dissent and clarifications from the children interacting with the system. (Nordfeldt & Roalkvam, 2010). For us to tighten the string on what we call evidence, paternalism in child protection cannot become a substitute for participation.

In a way, institutions in child protection have coded for state actors and government officials to be antagonistic to any debate about their beliefs, methods, and practices. In comparison with other democracies, the Indian state adopts a uniquely paternal role in caring for its citizens. Legislation and the justice machinery are often at odds with personal agency and human rights (Rajagopal, 2007). Vulnerability is commonly used as a justification for paternalism in general, and this is certainly true for children, as one of the traditional justifications for protecting children’s rights is due to their ‘inherent’ vulnerability. This is exemplified in the UNCRC, which states that some children are even ‘more vulnerable than others’ (Quennerstedt, et.al, 2018). This reliance on vulnerability as a defining factor for determining a child’s ability to participate is visible in the processes that determine the best interests of a child. It is expected that government officials decide the next steps for a child, often overturning the child’s own right to partake in any decision-making. Ideally, any decision that significantly influences a child’s life needs to be taken in consultation with concerned children in an age-appropriate manner, with due consideration given to their levels of maturity.

Multiple reports that highlight the daily lives of children within the Juvenile Justice system have discussed how far we are from ideal norms. Children have little to no choice and control in their day-to-day decision-making, including but not limited to the food they eat, the clothes they wear, activities they are involved in, and who they engage in conversations with. (Penal Reform International, 2014) This situation is likely to be worse for children belonging to marginalised identities. It is worth noting that this best interest principle is often subjective, leaving it open to misuse, usually in the name of keeping children safe. Research has shown that vulnerability and safety are used as monikers for racial or caste-based biases against children and parents from marginalised identities. (Font et.al, 2012) Parents/caregivers from backgrounds of illiteracy, economic insecurity, and aboriginal/tribal ancestries are treated with scorn and are expected to not know what is best for their children.

In a country where marginalisation determines the response of a social welfare system (Rocher & Larson, 2003), a highly paternalistic state affects how varied voices play their roles in valuing the best interests of children. The uniquely paternalistic state in India tends to accord vulnerable adults with minimal agency and has shown time and time again to undermine children’s voices to degrees higher. Child protection systems with paternalism encoded in the DNA lead to institutionalised practices that deprioritise children’s active agency within the system. 

2. Overburdened & underinvested human capital

For child protection to emphasise the best interests of the child, children’s interaction with the system needs to be child-friendly. This necessitates that child welfare professionals are continually trained and upskilled to work with children in distressing conditions. They are required to possess the skills needed to bring out children’s voices and views often suppressed in conventional processes. More crucially, this necessitates a minimum threshold of trained workers. The Indian state fails to meet both these pre-conditions for a well-functioning, child-friendly child protection system. (Mehrotra, et al, 2014). 

In multiple contexts of child protection, be it child rescue (Donger & Bhabha, 2018), child welfare committees (Nooreyezdan & Mehta, 2016), children courts (Raha et al, 2014), and childcare institutions (Wanglar, 2021), human capital is grossly insufficient. Drawing an example from the Child Welfare Committee at the district level, 5120 persons provided child protection services/assistance to 1,70,000 children. (MWCD, 2019). According to child protection specialists, these district child protection units do not have adequate human resources dedicated to handling even the volume of distress calls, let alone responding to them on a real-time basis. (Sweekruthi, 2023) Manpower limitations negatively affect time-bound, child safety responses to children at the most precarious intersections of poverty, abuse, and violence. 

Underinvestment is not just a function of numbers but is also reflected in the proficiency and attitudes that child protection officials bring to their work.  In the context of child maltreatment prevention in India, Segal (1992) has asserted that it is vital to ascertain the perceptions of those with the greatest capacity to intervene. In a child protection system, this necessitates ascertaining and attempting to change the perceptions and practices of those making the wheels run. Existing human capital is undervalued on multiple fronts - they are not paid market rates (Nilsen et al., 2023), and many have no discernible career growth in the sector. When it comes to training, opportunities are few and far between. For professionals, this trifecta of poor work conditions - low salaries, lack of training and mentoring, and overwork contributes to a culture of compassion fatigue and burnout.

Working with marginalised communities, especially with children in crises, they encounter second-hand trauma on a day-to-day basis. (Remen, 1996). While listening to stories of neglect and violence can motivate change and inspire anger with existing systems, it is possible and likely for child welfare professionals to be overwhelmed. A common byproduct of repeatedly encountering distressing information, absorbing vicarious trauma and having to power through it all, is compassion fatigue. Pioneering psychologist Charles Figley described this phenomenon as a cost to caring, the exhaustion brought on by second-hand experiences of stress and pain of the children being cared for. This is pronounced when, as community workers, child welfare professionals encounter information they cannot act upon and realities they cannot change.  Research has shown that community workers interacting with children who come from highly traumatic backgrounds of child sexual and physical abuse are at a higher risk of feeling this chronic stress. (Geoffrion et al., 2015). Compassion fatigue can often lead to disillusionment in a community worker’s ability to effect change and is closely linked with burnout. Studies in occupational medicine and organisational psychology have linked experiencing compassion fatigue with frequent absences, higher staff turnover rates, reduced team morale, and compromised decision-making (Cocker & Joss, 2016). This affects their ability to offer structured support and provide emotional support to the children within child protection systems.

To summarise, a majority of child protection work is informal and overburdened, with no role clarity, no clear path for growth, and intense emotional exhaustion. (Wessells, 2015) There needs to be a conscious effort to build the infrastructure and financial support for capacity building and organised recruitment into the child protection force. 

3. Poor evidence infrastructure 

Children cannot vote. Children without stable families have no one to voice their political and policy desires. Without agency, low in political priority, and at the bottom of social structures, children (39 per cent of the total population) are most vulnerable to the shocks their families and communities experience. (Schweiger, 2019)

A key gap in social activism is opaqueness in data. In India, while we have data on adversities like child sexual and physical abuse, very few studies quantify the prevalence of multiple adverse experiences in children. These datasets do not include information about social inequalities like gender-based violence and caste discrimination to accurately measure the collective burden on child protection. (Fernandes et al., 2021) There is a dearth of national-level data, disaggregated into social determinants to allow for a deep understanding of the impact and implementation gaps in child protection.  The reason why data about child protection tends to be so poorly captured is a sign of its deprioritisation as a policy priority. Any existing research on child protection is currently built on critically analysing data sets on health, labour, national crime data, and education indicators. This prevents a deep dive into specific issue areas and necessitates comfort with larger uncertainties as data triangulation across multiple datasets becomes more complex.

The child protection discourse is hindered by a lack of data and nationally accepted indicators, resulting in a constrained understanding and limited reach of the issue (Enakshi et al, 2019). This deficiency in our understanding has posed a major challenge in determining the right child protection interventions and community-based activities. More urgently, a lack of data on child protection makes it that much more difficult to garner political support and financial investment into solving these challenges. (Davis et al, 2009) Political economy considerations and public attention drive government priorities. Without data, the government and its people will continue to be unaware of the sheer scale of the problem, and unmoved to change the status quo. 

Conclusion 

India has seen unparalleled economic growth in the past five decades, but a complex interplay of poverty, structural discrimination, and exploitation keeps children unsafe in a rapidly urbanizing country. For any practitioner involved in child protection, the dramatic rise in violations of child rights and child safety during the pandemic reflects a worrying systemic rot at the core of the child protection agenda. Prevailing attitudes of paternalism in the law and the action of the government machinery weaken the agency afforded to children, reinforcing traditional hierarchies of power. Systematic underinvestment in the child protection workforce further undermines the intended child-friendly nature of existing government processes, as a dearth in the quantity and quality of the child protection workforce creates conditions of neglect for vulnerable children. Finally, without clear indicators for measuring child protection, the absence of rigorous data breeds public apathy and wilful political ignorance.

Instead of approaching child protection as a collection of individual issues to solve, maybe, the question to ask is how we can reimagine child protection as a cross-cutting, multidisciplinary, system to bring children’s issues to the forefront of human rights and development.