Principles and practice of adoption law in Pakistan

Pakistan is not party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 and adopting a child in Pakistan is a long, difficult, and legally-complex process. Observably, the Guardians and Wards Act 1890 governs the rights and interests of minors in Pakistan. Moreover, Pakistani law and Islamic Sharia law, upon which Pakistani family law is based, does not allow for adoptions of Pakistani children in Pakistan. Adoption is not a valid mode of filiation in Islamic law. According to Pakistan’s laws, prospective adoptive parents who are non-Muslim may not be appointed guardians of Muslim children and non-Christians may not be appointed guardians of Christian children. Children abandoned at an Islamic orphanage are deemed Muslim unless there is evidence to the contrary. In general, adoptions are a community matter in Pakistan and the country has no express statute which provides for the adoption of children. People often opt for informal adoptions according to their faith, outside the family courts. However, such informal adoptions do not meet the requirements in Western countries for granting an immigration visa to an adopted child. Prospective adoptive parents must therefore comply with their own national immigration law and applicable provisions of the colonial Guardians and Wards Act 1890 in Pakistan. Not all children in orphanages or children’s homes are adoptable and many are in an orphanage only temporarily owing to financial or other hardship. The biological parents of such children would not have consented to their child’s adoption.

For a foreigner to be legally matched with a child, the law in Pakistan requires that an orphanage should be licensed under the relevant local laws. In addition, Pakistani law requires that guardianship of a Pakistani child be appointed by the competent authority (i.e., the family court having jurisdiction) in compliance with domestic law/procedures and in interesting proceedings known as Mrs Ingrid Pereira and Another (Petitioners) v Additional District Judge (Karachi) and Others 2012 PLD 208 Karachi, we can see all the dilemmas for the adopting parents. This was a case involving adoption and section 7, section 10 and section 26 of the Guardians and Wards Act 1890. The facts were that Mrs Ingrid Preira, wife of Mr Terence Preira and Mr Terence Preira, (the petitioners), real sister and brother-in-law of late Carol Bob through their attorney Mrs Lilly Rose Francis, applied to the Family Judge at Karachi South for their appointment as legal guardians of two children, namely Whitney Ingrid Lourdes Bob and Britney Davina Mary Bob. Sadly, however, their application was dismissed on the ground that the father of the children was alive and there was no sufficient or cogent reason for appointment of the petitioners as their guardian. Aggrieved by such an order, the petitioners appealed but their appeal was dismissed by the IV-Additional District Judge, Karachi South upholding the order of the family judge. The petitioners then had to attack those orders in a constitutional petition which was granted by Salman Hamid J. 

The application under section 7, section 10 and section 26 of the Guardians and Wards Act 1890 was made in 2010 and the constitutional petition was granted in 2012. So applicants should note that it may well be the case that there can be delay if their application is not granted at first instance. Of course, appeals and High Court challenges will require more funding and drive up costs and it is therefore advisable to get things right the first time. It was the wish of deceased mother of the children that their aunt should adopt them and their father Fabien Bob did not object to this. This was a Roman Catholic family from Karachi and Salman Hamid J dealt with the problem before him by granting relief to the aunt and uncle who were settled in America.

First, the the High Court of Sindh’s record showed that the petitioners had followed the US Citizenship and Immigration Seems process for adopting the children. The petitioners had filed various documents with the petition, marked as Annexures to the claim. “Annexure A” elaborated on the meaning of orphan which amongst others also had a meaning to the effect that an orphan is a foreign born child who has a sole/surviving parent who is unable to care for the child, consistent with the local standard of the foreign sending country, and who has, in writing, irrevocably released the child for immigration and adoption.

Next, Annexure A/1 filed with the petition was a copy of the international adoptive home study, a requirement by the US immigration authorities before approval can be granted, which included a detailed study of the petitioners’ home environment, finances, list of criminal background checks, doctors and psychologist’s names, who had evaluated the petitioners for the purpose of adoption and also details of training that they had taken for the adoption. Salman Hamid J was impressed with the quality of the evidence placed before him. He was also attracted to the facts. After all these were good Roman Catholic people who were determined to take Whitney Bob and Britney Bob to a better future in America because they were growing up without a mother in Karachi. 

The couple provided an undertaking that the children’s father Fabien Bob would still be in touch with them and that the authorities in the US had been informed of the fact that the father was alive. The couple also provided proof of address in the US and proof that they paid their property tax. They also provided a document in respect of financial details and other related sources, pertaining to their financial standing and photographs of the layout of the residence where the children would live showing the standard of living they would have. All this was attractive for the court which held that: 

5. All the above would show that the interest and welfare of two minors have been properly safeguarded and that the father of the two minors has fortified the fact of adoption by giving his no objection affidavit to such an extent. In all the cases of the minors, be it the custody or adoption or guardianship the predominant factor is their welfare. It amply came on record that the well being of the two minors who are Roman Catholic Christian lay with the petitioners who are living in better financial and social conditions in USA which the father of the two minors wants to extend to them and for such purpose, he also filed affidavit of no objection, wherein amongst others, it was specifically mentioned that he would continue to meet with the two minors regularly either in Pakistan or in USA.

The court added that Roman Catholic children were not governed by Muslim Personal Law and also that “in Pakistan there is no law for adoption inasmuch as that Islam does not recognize adoption”. Salman Hamid J said “guardianship proceedings become inevitable ….. since in Pakistan there is no adoption law and there is no adoption authority.” He held that:

7. Looking to the above factors and the paramount consideration i.e. the welfare of the two minors and also the fact that the orders of the two courts below were primarily based on conjectures and surmises and without appreciation of the legal position, this petition is allowed and the petitioners are allowed to take the two minors outside the jurisdiction of the competent authority for the purposes of adoption in the United States of America and that under the circumstances, the orders, passed by the two courts below are set aside.

This case shows that the courts of Pakistan are a challenge even for local people and in this case the Preira family only succeeded in their case after constitutional petition, their third bite at the cherry despite the fact that the children’s father had provided express authority to their aunt to take them to the US. And as Salman Hamid J had observed Pakistan does not have a central government adoption authority and this causes hardship in adoption cases. Family courts have jurisdiction over the guardianship of children and there are no adoption agencies in Pakistan.

In cases where the family court grants the prospective adoptive parents guardianship, the judge will issue a record of the proceedings, a guardianship order, and a guardianship certificate. The certificate must state that guardianship is being granted for purposes of immigration to and adoption in a foreign country, in the above case the US. As the work is legally complex, fees and expenditures are significant and the risk of refusal is very high if prospective adoptive parents act in person or use inexperienced counsel. 

Prospective adoptive parents who are foreigners should observe that while it is possible to meet the child of their dreams in an orphanage and develop a strong bond with the child, it is true that in a worst case scenario the family court can order for the child to be returned to the orphanage. This can of course be quite devastating for the adoptive parents and the child and should be avoided.

Therefore it is a good idea to have an experienced advocate and barrister to represent you in Pakistan so that your work is done properly and efficiently as Pakistani courts will not hesitate to rule against many prospective adoptive parents from abroad if the judges feel that the welfare principle is in breach. Indeed, women and children are routinely trafficked from Pakistan and this will be in the back of the judges’ minds. It is best to respect local culture and tradition when working on your adoption case in Pakistan or otherwise things can get rather difficult. There are also very strict human trafficking laws in Pakistan and the Federal Investigation Agency (FIA) is responsible for the enforcement the Prevention of Trafficking in Persons Act 2018. The FIA is a federal police force and it is Pakistan’s equivalent of the Federal Bureau of Investigation in the US. 

If your child is not yet a US/UK/EU or other citizen then he or she will also need a travel document or passport from Pakistan which can only be issued if the local authorities are convinced that the proper procedures have been adhered to and the welfare of the child remains paramount so that the child is duly protected. 

The Government of India Act 1935 separated Sindh from the Bombay Presidency and the Judges of the Court of Judicial Commissioner of Sindh were appointed by Royal Warrant by the British Government. The High Court of Sindh is the highest judicial institution of the Pakistani province of Sindh. The Court is situated in the provincial capital at Karachi and it was established in 1906. 

If you need advice on how the Pakistani courts approach adoption cases or need advice on the issues raised above email asadakhan@icloud.com or message +44(0)7590349215 on WhatsApp. 

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Adoption, Adoption Convention, Cases, Children, Habitual Residence, Human Trafficking, International Law, Karachi, Pakistan, United States and tagged , , , , , , , . Bookmark the permalink.

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