Pakistan had no law for adoption, the only legal way available for foreigners to get a child was on the basis of a guardianship certificate, lawyer Zia Awan said. -Photo by AP
Pakistan had no law for adoption, the only legal way available for foreigners to get a child was on the basis of a guardianship certificate, lawyer Zia Awan said. -Photo by AP

KARACHI: Although there is no law for adoption in the country, Pakistan does not bar the inter-country guardianship of orphans and abandoned children, as well as their adoption in other countries, it emerged on Monday.

Pakistani courts are able to grant the custody of children to foreign nationals by appointing them as guardians for the sake of their welfare and Pakistan’s Guardian and Wards Act, 1890 has no provision about a ban regarding adoption of Pakistani children in other countries, where the adoption law exists.

According to the country’s guardian and wards law, a court may appoint outlanders as guardians, considering the well-being of a child; and also has the authority to allow the guardian to take the child abroad.

Canada is reported to have placed a ban on Pakistani children’s adoption in July on the ground that Canadian families seeking adoption of Pakistani children have to obtain guardian certificates from a Pakistani court and then subsequently formalise an adoption in a Canadian court, but legal and procedural requirements to obtain a guardianship certificate under Pakistan’s Guardians and Wards Act do not allow subsequent adoption.

But legal experts said that there was no legal weight in the justification given for the ban, adding that though Pakistan had no law for adoption as Canadian and some other countries did, Pakistani law about guardian and ward had no obstacle related to adoption of its children in other states if a Pakistani court granted a guardianship certificate to a foreign national and also allowed him/her to take the child abroad.

They were of the view that there should be a regulatory agency to monitor the process, avoid misuse of guardianship and human trafficking.

However, legal experts have different opinions about legislation for adoption in the country.

Prominent lawyer Zia Awan said keeping the growing number of orphans and abandoned children and their miseries in view, the legislation for adoption was considered necessary and the Council of Islamic Ideology should have been a bit liberal while considering the issue.

He also identified some cases of false and wrong guardianship in the past and said that there should be a monitoring agency at the provincial level to make the practice transparent and report any complaints against the guardians.

There would be no illegality if a Pakistani court appointed a foreign national a guardian and allowed them to take the child abroad and there is no legal hurdle for guardians to formalise an adoption in other countries having law on adoption, Mr Awan added.

He further said that since Pakistan had no law for adoption, the only legal way available for foreigners to get a child was on the basis of a guardianship certificate.

Usually civil judges appeared to be reluctant to grant guardianship to foreigners and the judicial academy might play a significant role in this regard, he concluded.

Iftikhar Javed Qazi, a former vice chairman of the Sindh Bar Council and a seasoned lawyer, said that foreigners could get the custody of neglected Pakistani children under the guardian and ward law after satisfying the court and might take the children away after getting permission from the court.

There was no provision in Pakistan’s Guardian and Ward Act regarding any bar on adoption of Pakistani children in other parts of the world, he explained.

However, Mr Qazi said that no legislation could be done for adoption as it had no room in Islamic laws and the constitution discouraged such lawmaking.

Nisar Ahmed Khan, another senior lawyer having vast experience in dealing guardianship cases, said that after completion of pre-adoption study, foreigners got permission from their countries and moved an application to Edhi or other orphanages.

After acceptance of their plea, the foreign families, seeking adoption of Pakistani children, filed applications in courts of civil judges under Section 7 and 10 of the Guardian and Ward Act, 1890 for a guardianship certificate, he added.

Once the court granted the certificate, the applicant could move another application seeking permission to take the child abroad, the lawyer explained.

He was of the opinion that in most cases, civil judges dismissed applications of foreign nationals about guardianship due to want of experience, but appellate courts usually allowed it.

Mr Khan also maintained that there was no concept of adoption in Islam.

Ashfaq Rafiq Janjua, who also pleaded a number of cases about guardianship, said the court had to hand over the custody of a child to a guardian on a permanent basis under Section 25 of the Act and also allow him/her to take the ward away as provided in Section 26 of the Act.

The guardian may formalise an adoption on the basis of the documents issued by a Pakistani civil judge in the court of other countries where the law of adoption was in place, he added.


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Comments (6) (Closed)


Yousaf
Aug 27, 2013 03:33pm

These children are better off in other countries with two loving parents rather than in Pakistani Madrassahs and the Mullahs.

Tanvir
Aug 27, 2013 08:08pm

"Mr Khan also maintained that there was no concept of adoption in Islam." Before making this claim, Mr. Khan should have refered to the ulemas with certified knowledge of Islam & Quran. Just to think of it, Prophet Mohammed (SWAS) was an orphan, who was first adopted by his grandfther, Abu-Muttalib and then by his uncle, Abu-Talib. The islamic concept of adoption and guardianship starts first with the immediate family, and not the strangers. There are ayahs in the Quran that talk about being just with the property of orphans being trusted onto a guardian; and testing the orphans (for becoming responsible) upon their coming of age, and marrying them,erc. Islamic concept never allows a child to be separted from his/her parents, regardleas of their poverty. The Islamic system of Zakath has been estblished to help the poors, the week and othe rphns to sustain themsleves and to enable them becoing productive human beings. Beware, that some ill-intentioned people from some Asian countries residing in foreign countries may be using the modern concept of adoption to buy slave boys & girls from over-populated countries and turning some girls into prostitution. Pakistani Government must ensure that no child is handed over to a stranger if a single relative (a defacto gurdian) of the child is known to exist. Children of a nation should be considered a treasure than a simple throw-away.

Wajiha Saeed El
Aug 28, 2013 10:08am

Pakistan is fortunate to have someone so Great as Mr. Zia Awan who devoted his entire career to safeguard and legally help protect the Rights of women and children. Yes indeed he is a Hero and someone to look up to with Gratitude !!!

Zeeshan Ahmed
Aug 28, 2013 11:40pm

Mr.Khan’s ignorance is laughable, as well as inexcusable. Where does Mr. Khan get the idea there is no concept of adoption in Islam?

Zeeshan Ahmed
Aug 28, 2013 11:42pm

@Yousaf: Please think before you comment. I live overseas and watch Muslim kids adopted and raised to be non-Muslims. Which is the worse predicament?

Tanvir's Nani
Aug 28, 2013 11:59pm

Mr. Tanvir obviously lives under a rock. Or in a plush distant place from the reality of poor children's condition in Pakistan. For all of our sake, take your unrealistic expectations of Islam and the country of Pakistan somewhere else. Everyone else lives in the real world where we all agree, these children need to be with families that want them, regardless of their geographic location, religion or ethnicity. Time for people in Pakistan and around the world help rescue these kids from the harsh realities. And Mr. Tanveer, your rock is calling.