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.