IRB – Immigration and Refugee Board of Canada (Autor)
The following information was provided to the Research Directorate by a Pakistani lawyer in June 2000:
In Pakistan adoption would be covered by the personal laws of the different religious communities. In the case of Muslims, adoption is not prohibited, but is not recognised in the law. Only natural born children have the right to inheritance. Therefore, if a child was adopted he/she would not have the same rights. Muslims in Pakistan use the Guardian and Wards Act, 1890, to obtain legal guardianship of a child. This creates a right of the child to be maintained and cared for by the guardian, but still does not create the right to inherit.
As stated above, there is no law formally allowing adoption for Muslims. Laws that allow adoption for other communities, e.g. Christians and Hindus, would be governed by the principle of best interest of the child, whether male or female.
While there is no law related to adoption for Muslims, adoptions are not uncommon. There is no rule that prescribes that only a certain category of children may be adopted. The general practice amongst Muslims who wish to adopt a child, is to approach the guardian court and obtain guardianship of a child after satisfying the court that it is in the interest of the minor. If the child is an orphan, the procedure would be simpler. If the child has a parent or parents they would have to support the application and endorse the claim of the prospective guardian that the welfare of the child can be better looked after by the applicant. There is no prescribed category of children for whom guardianship can be taken. There are guidelines in the law, however, that consider the religion of the child and the prospective guardian as a factor in determining the welfare of the child. The general trend of judicial thought is that the child must be reared in her/his religion of birth if known. There is a principle of Islamic law that if the religion of the child is not known, and the child is a foundling, she/he takes the religion of the person who finds the child. For instance if a child is born in a hospital run by a Christian charity and the mother abandons the child, the child will be presumed to be a Christian. If found in a locality by and large inhabited by Muslims the child will be presumed to be a Muslim.
Alternative care [for abandoned and/or illegitimate children] provided by the state and private sector is grossly inadequate and very poor. There is a great deal of concern regarding treatment of children in institutions. Generally there is neglect, abuse and exploitation. Abandoned children usually end up on the streets, only a few would be institutionalised. Even those who are have dim prospects of development or advancement. There are biases and prejudices against these children, which institutions have done little to eliminate. Children often do not receive the kind of care which would instil confidence in them or give them a sense of security. Social bias against illegitimate children is even higher. Even in adoption, there is a clear bias against illegitimate children and disabled children.
As I said earlier, adoption, though not prohibited, is socially discouraged. Attitudinal biases against adopted children are very evident, and any attempts to give the right of inheritance to such children have been resisted. by the religious establishment.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.
Pakistani lawyer practising in Lahore.
June 2000. Correspondence.