Impediments for Adoption and Legal Impairments Hampering the Welfare of Abandoned and Destitute Children In Pakistan – A Critical Analysis of the Concerned Legal Regime
Children, for not having achieved the expected mental and physical stability to survive independently and earn for themselves, are considered to be one of the most vulnerable groups of any society, hence demanding the utmost care and protection by all relevant stakeholders.
Nevertheless, an untold number of children in Pakistan are either abandoned by their families or subjected to abuse at the hands of their own families. Such children are deemed to be at the mercy of the relevant regulatory authorities under the directions of the state to be provided with a nurturing environment towards their ultimate prosperity. The authorities have been mandated to provide more than just the basic necessities of life in order to make the children feel cherished as their formative years are pivotal in establishing a sound foundation so they do not fall prey to the complexes that may adversely affect them later in life. If neglected, they may be ripe for psychological issues and may find it extremely cumbersome to be able to assimilate into society positively.
If the matter of destitute, neglected, abandoned and at-risk children, constantly exposed to the threats of exploitation, is approached pragmatically, the only light which can be seen at the end of the tunnel is that of placing such children in the care and supervision of some suitable family, individual or institution. In this regard, laws have been passed in Pakistan at a provincial level, to satisfactorily look after the needs of vulnerable children. However, the practicality of such legislation has always been seen as falling short on the successful implementation of its purpose, the prime reason for which is underdeveloped jurisprudence and the lack of clarity within such laws.
Following the Eighteenth Amendment to the Constitution of Pakistan, 1973, the power to make laws regarding minors/children had been delegated to the provinces as the ambit of the matter would have been too wide to be covered by a uniform law made by the federation. Therefore, in the wake of the authority given under the Eighteenth Amendment, the Provincial Assemblies promulgated the following laws:
- The Punjab Destitute and Neglected Children Act, 2004 (the Act);
- The Sindh Child Protection Authority Act, 2011 (SCPA Act, 2011);
- The Khyber Pakhtunkhwa Child Protection Act, 2010 (KPCP Act, 2010); and
- The Balochistan Child Protection Act, 2016 (BCP Act, 2016).
- The ICT Child Protection Act, 2018 for the Islamabad Capital Territory was legislated by the federation.[1]
With regard to taking care of vulnerable children, secular countries tend to encourage formal and permanent adoption of children, along with the transference of legal rights and duties, or place such children into foster care. However, Islam encourages kifalah (homogeneous to foster care), rather than the institution of adoption, where a child:
- maintains his or her original identity;
- is known by the name of his or her biological father;
- is na-mahram to the family taking care of him or her;
- does not get a share in the property of the carer, by default, by virtue of inheritance, as per Sharia’h law; and
- does not have any legal rights upon his or her carers and simultaneously does not owe any duty to them and vice versa.
The main emphasis of this article, however, shall be to delve into the 2004 Act evaluating the issues pertaining to the allotment of custody of children seriatim and simultaneously comparing it with other Provincial Acts, where needed.
First, we look at the modalities involving ‘custody’. The Act, apart from admitting destitute and neglected children into child protection institutions, emphasises on giving custody of such children to suitable person(s). The term “custody of child” is mostly employed after the finalisation of divorce, when custody is given to one parent keeping in view the best interests of the child. Custody is primarily concerned with practical matters i.e. taking care of and maintaining the child. In this regard, the preferential right to custody is that of a mother. However, the Act fails to define custody and specify as to whom and in whose favour will custody be granted, whether to an individual or a couple. Furthermore, if both are eligible, then whom shall be preferred? By not explicitly mentioning single parents or unmarried people, does the Act imply excluding single males or females from applying for custody of abandoned children?
Secondly, the screening process is of paramount importance. The Act sets out the entrustment of custody of children to suitable person(s), but apart from mentioning that the suitable person be able and willing to look after a child, it is silent on how the ability of that person is to be adjudged. Would the following factors play any role in the determination of suitability:
- financial stability;
- similar religious beliefs;
- good reputation in the eyes of the public;
- some police character certificate confirming no criminal record; or
- whether a person(s) is a Pakistani national or non-national?
Since the Act is a young legislation itself, there has been no concrete jurisprudential development in this realm in Punjab. Nonetheless, a few cases which have been reported under the Act having a common feature to determine the suitability of a prospective couple to successfully get the custody of child, is them being issue-less.[2] The point to ponder here, highlighting another shortcoming of the Act and the unopened door towards judicial activism, is what is meant by being “issue-less”. Would it include:
- people who, owing to some medico-physical conditions, are incapable of having progeny; or
- the ones who, by choice, want to remain issue-less; or
- the ones who have children but have lost the ability to reproduce further?
In furtherance to this, has the Act, by specifically stating that custody be entrusted to suitable person(s), put a restriction on other adoptive avenues operating abroad which are devoted to the purposes of raising abandoned children and want to adopt them from Pakistan and place them in institutions abroad? If this is the case then the children’s right to enjoy the benefits, which are more protected and enforced abroad, are severely curtailed because factually speaking, the institutions which provide shelter to abandoned children in Pakistan may not be of high caliber to be able to cater to the interests/welfare of the children in effective ways as compared to the institutions abroad.
The Act also bestows discretionary power upon the courts to make the custodians execute security bonds to ensure the welfare of a child.[3] However, the Act has again failed to define the factors which constitute the welfare of a child. Nevertheless, relatively newer legislations such as the KPCK Act 2010, the BCP Act 2016 and the ICT Child Protection Act 2018, have played a notable part in elaborating the elements to be considered while adjudging what is in the best interests of a child.[4]
A scenario wherein biological parents return to claim a child is also to be considered pivotal in the operation of the Act. In furtherance of the aforementioned lacunas in the law, the Act has observed complete silence over the situation where the biological parents of a child – given in the custody of custodians under the Act – turn up and claim their child back. However, the court order annexed below, showcases in clear terms that if the real/natural parents claim the custody of the child, the court shall, subject to necessary inquiry, order the custodian parents to give up the custody of the child in favour of the real parents. It would be sensible to presume that where the biological parents of an abandoned child, whose custody has been given to some suitable person(s), show up out of nowhere claiming their child back, the act of handing over the custody of the child back to the biological parents can be emotionally challenging and draining for both the child as well as the custodians. On the other hand, the Sind Children Act, 1955 (SCA, 1955) vouches for the custodian(s)’ right to keep the child in custody and treat and maintain him or her as his or her real parents, for the period ordained in the custody order by the court, even if the real/natural parents of child claim the child back.[5]
With reference to keeping a record of children being admitted to child protection institutions, no administrative measures have been laid out in the Act. For instance, the court order annexed below directs the applicant couple to hand over custody of the child to the real/natural parents based on proof gathered through DNA testing and other relevant/admissible evidence, while simultaneously directing the child protection bureau to search for the real parents of the child utilising all possible means. Nevertheless, the procedure is unclear on how to satisfactorily examine whether or not they are his real parents. In particular:
- How shall this examining and tracing exercise be carried out?
- What would be the other relevant evidence? Some photographs perhaps?
- In order to conduct DNA testing, does the management of the institution maintain samples of a child’s DNA upon his or her admission or is this procedure done when the need arises?
The maximum period of custody set by the Act is till the child attains 18 years of age.[6] This casts further doubt on the aspect of custody. Although the period of custody in Islam varies from sect to sect, it does not extend till the age of 18 years, in fact it is legal guardianship which comes to an end once the child reaches legal age. This points out the conceptual discord in the Act as to whether the concept of custody under the Act is congruous with that of the Guardianship and Wards Act, 1980 or akin to legal guardianship. Furthermore, Islam encourages a de facto arrangement of adoption (without transference of legal rights and duties) by way of guardianship. Perhaps owing to this ambiguity and analogy, the custody granted under the Act has been misconstrued as “adoption”. From a layperson’s perspective, taking into care a child who is not your own would generally and subconsciously be thought of as if the child is adopted, as is witnessed in secular countries and reflected in their laws. Based on this, people have actually filed writ petitions to adopt destitute and neglected children and have been granted custody of such children without the judges having felt the need to clarify the distinction between custody and adoption in such custody orders.[7]
Food for thought: even if such custody is deemed to be adoption under the Act, would such de facto adoption be recognisable for the purpose of child registration in the eyes of the laws of more secular countries, if the adoptive parents were to apply for immigration of the adopted child? The status of the child in such cases shall be subjected to various questions. If due clarity is not provided, it could create a situation where the ‘conflict of laws’ (private international law between countries) would frustrate the whole process and hamper the interests of the child.
Another aspect which has been ignored is that the Act entails no provision covering the scenario where custodians are dual-nationals and may want to take the child in their custody along with them abroad. The Act has failed to provide any guideline on this eventuality, although it is most likely for Muslim families abroad to show close affinity with Pakistani culture and tradition and preference to bring into their families abandoned children belonging to the same regions as their own origins. However, due to conflict over the concept of adoption between Pakistan and the West, the bone of contention remains whether the adoption done in Pakistan has been valid and whether it can be registered as such in the West in conformity with their laws.
As a consequence of neglecting the aspect of custody by dual-nationals, the Act has, by default, also failed to analyse the cumbersome practicality of the requirement of compelling the production of a child before the court to assess the successful fulfilment of custody conditions in such situations.[8]
In line with the 1980 Act under which guardians can apply for a guardianship certificate to let a child in their custody travel with them abroad, it is time for the 2004 Act to be amended as well, or at least have some complementing rules and regulations to formally and easily regulate such complex matters, otherwise the only room left for custodians would be to apply for guardianship of a child in their custody under the 1980 Act and obtain the requisite certificate to take the child abroad with them. It does not sound formally or legally appealing that the custodians would have to endure double efforts under different laws when practically the 2004 Act should have been all-encompassing and well-versed in tackling at least some of the potential issues, for it is the only Act in Punjab (a province hosting almost 53% of the total population of Pakistan)[9] regulating the custody of vulnerable children.
The aforementioned evaluation of the Act reveals crucial loopholes within the legislation which ideally should be catered to and aided by secondary legislation enunciating rules, regulations, policies and directives. It has been almost 18 years since the concerned Act originally came into force in 2004, 3 years after which an amendatory Act in 2007[10] was put into effect, following which another amendatory Act in 2017[11] had been promulgated, though both of them did not make any significant contribution in terms of the issues raised above. The current legislation has been festering ambiguity and creating room for exploitation while defeating the whole purpose of the enactment aimed to protect a vulnerable section of the society efficaciously.
Given the need of the hour, it is, therefore, suggested that rules and regulations be made to address the gaps in the Act in order to strengthen and further its aims. Additionally, it is respectfully submitted that the Act may require the following amendments:
- to include “illegitimate children” explicitly in the definition of destitute and neglected children, in line with the SC Act, 1955;[12]
- to have more inclusivity i.e. to clearly mention that the Act equally applies to Muslims as well as all religious minorities in Punjab, because presently it is silent as to whether only Muslims are able to apply for custody of children under the Act and that too of Muslim children only or non-Muslims as well and vice versa.
- to make provisions for the registration of child protection institutions and vulnerable children, especially abandoned children with unknown parentage, with the National Database and Registration Authority under the NADRA Ordinance 2000, the reference to which may be sought from the ICT Act, 2018.[13]
The sensitivity regarding the issue of child protection calls for a policy directive from the federation to the provinces towards the enactment of uniform laws in line with the spirit of the Constitution which is the biggest proponent of equality amongst all citizens and by no stretch advocates for a varying treatment of children in each province. The varied laws of the provinces may have, no doubt, expedited the custody process, however, all the cases brought under these laws are being dealt with in their own unique ways. Therefore, it is advisable that coherent provincial laws, under policy directives from the federation, be made for the protection of destitute, neglected and abandoned children so that the prevalent issues get tackled in an unwavering and smooth fashion, keeping in view the best interests and welfare of minor children.
Enclosed: Court order for reference
References
[1] Senate Report of The Special Committee on “Issue of Increasing Incidents of Child Abuse”, 2018 lays out the legislative measures taken by Provincial Governments.
[2] Refer to the court order annexed herewith, Ghayasudin Vs Medical Superintendent, Services Hospital, Lahore [PLD 2012 Lahore 398] and Muhammad Ashraf Vs District Coordination Officer, Lahore and 2 others [P L D 2006 Lahore 219]
[3] Section 28 The Punjab Destitute and Neglected Children Act, 2004
[4] Section 16(3) The Khyber Pakhtunkhwa Child Protection And Welfare Act, 2010; Section 4(6) The Balochistan Children Protection Act, 2016; Section 3 Islamabad Capital Territory Child Protection Act, 2018
[5] Section 104 The Sind Children Act, 1955
[6] Ibid.
[7] Ghayasudin Vs Medical Superintendent, Services Hospital, Lahore [P L D 2012 Lahore 398] and Muhammad Ashraf Vs District Coordination Officer, Lahore and 2 others [P L D 2006 Lahore 219]
[8] Section 28(4) The Punjab Destitute and Neglected Children Act, 2004
[9] https://pwd.punjab.gov.pk/population_profile
[10] The Punjab Destitute and Neglected Children (First Amendment) Act, 2007
[11] The Punjab Destitute and Neglected Children (Amendment) Act, 2017.
[12] Section 40(b) The Sind Children Act, 1955
[13] Section 25 Islamabad Capital Territory Child Protection Act, 2018
The views expressed in this article are those of the authors and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which they might be associated.
Co-authored by: Ahsan Ahmed Munir and Ira Nawaz Osto
The writers are Advocates at Munir & Munir Advocates & Legal Advisers
