Adoption of Christian Child from Pakistan by American Nationals:

A case Law Study

PLJ 2012 Karachi 177

Present: Salman Hamid, J

Mrs. INGRID PEREIRA and another–Petitioners

versus

ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH and 2 others–Respondents

C.P. No. S-762 of 2011, decided on 16.11.2011.

Guardians and Wards Act, 1890 (VIII of 1890)–

—-S. 7, 10 & 26–Constitution of Pakistan, 1973, Art. 199–Constitutional petition–Appointment of guardian–Christian religious–Adoption–Petitioners were close relatives of father of minor children and were settled abroad–Petitioners had adopted the minors with the consent of their father and sought guardianship certificate for taking the minors abroad–Family Court and Lower Appellate Court declined to issue guardianship certificate in favour of petitioners–Validity–Interest and welfare of two minors had been properly safeguarded and father of minors fortified the fact of adoption by giving his no objection affidavit to such an extent–Held: Record showed that well being of two minors, who were Roman Catholic Christian, was with petitioners who were living in better financial and social conditions in U.S.A.–Both the minors were Roman Catholic, so were the petitioners who wanted to adopt them and therefore, they were not governed by Muslim Personal Law–High Court keeping in view the welfare of the minors and fact that orders of two Courts below were based on conjectures and surmises and without appreciation of legal position, allowed the petitioners to take two minors outside the jurisdiction of competent authority for the purposes of adoption in U.S.A. and orders passed by two Courts below were set aside–Petition was allowed. [Pp. 180 & 181] A, B & D

Adoption Laws;

—-Connotation–Adoption is defined as a judicial or administrative act which establishes a permanent legal parent and child relationship between a minor and an adult who is not already the minor’s legal parent and terminates legal parent-child relationship between the adoptive child and any former parent. [P. 181] C

Mr. Muhammad Umer Lakhani, Advocate for Petitioners.

Respondent No. 3 in person.

Miss Haleema Khan, A.A.G. (On Court Notice).

Date of hearing: 16.11.2011.

JUDGMENT:

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 namely Mrs.Lilly Rose Francis, applied under Sections 7, 10 and 26 of the Guardians and Wards Act, 1890 to the Family Judge, Karachi South, through Guardian and Ward Application No. 275 of 2010 (the Application) for their appointment as legal guardian of the two minors, namely Whitney Ingrid Lourdes Bob and Britney Davina Mary Bob (Two Minors), which application in terms of Order dated 11-8-2010 was dismissed on the ground that the father of the Two Minors is alive and there was no sufficient or cogent reason for appointment of the petitioners as their (Two Minors’) guardian. Aggrieved by such an Order, Family Appeal No. 92 of 2010 was filed, which, too was dismissed by the IV-Additional District Judge, Karachi South in terms of Order dated 29-3-2011 upholding the Order of the Family Judge Karachi South. Through present petition both the above Orders have been questioned.

2. It was asserted by the learned counsel for the petitioners that the two Courts below gravely erred in not appreciating that the welfare of two Minors laid with the petitioners and that father of the two Minors (Respondent No. 3) having accorded no objection to the grant of the application, there was no reason available for dismissal thereof; the Orders passed by the two Courts below were mechanical. It was further argued that the Orders of the two Courts below were based on conjectures and surmises and that the welfare of the Two Minors could not have been determined on such basis. It was implored that the two Courts below failed to appreciate the fact that the Petitioner No. 1 is a real aunt of the Two Minors and was also their God Mother. It was also not appreciated by the two Courts below that the petitioners initiated process for adoption of the Two Minors in the United States of America and followed the rigorous procedure required by the USA Immigration Law who on their turn extensively examined the case of adoption of the Two Minors and carried out thorough studies before allowing the adoption process. It was, therefore, asserted that the present petition be granted by declaring the Orders of the two Courts below to be contrary to law.
3. I have heard the learned counsel for the petitioners and learned A.A.-G. It is a matter of record that the father of the Two Minors has no objection to the grant of the petition and that he had also given his affidavit of no objection before the Courts below wherein it was categorically mentioned that he or any other family member of the Two Minors have no objection to the adoption of the Two Minors by the petitioners and that in such affidavit it was further mentioned that the welfare of Two Minors is that the petitioners who are willing to adopt the Two Minors adopt them more particularly when the Petitioner No. 1 is the God Mother of the Two Minors. It was also stated that it was the wish of deceased mother of the Two Minors that the Petitioner No. 1 should adopt the Two Minors and take care of them. It was urged by the Respondent No. 3 in his affidavit of no objection that he will continue to perform all moral and religious duties towards the Two Minors and for better prospects and better future of the Two Minors in terms of education, health and their future life and also female guidance for upbringing the Two Minors the Petitioner No. 1 be allowed to adopt the Two Minors.
4. It is a matter of record that the petitioners followed, the U.S Citizenship and Immigration Services process for adopting the child (Two Minors). To substantiate following such process, the petitioners filed various documents with the petition, marked as Annexure “A” to Annexure “A/7”. Annexure A spoke about the meaning of orphan which amongst others also had a meaning to the effect that an orphan is a foreign born child who has sole or surviving parent who is unable to care for the child, consistent with the local standard of foreign sending country, and who has in writing, irrevocably released the child for immigration and adoption (Emphasis provided). Annexure A/1 filed to the petition was a copy of international adoptive home study, which is a requirement by the U.S immigration and citizenship services 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, if any, who have evaluated the petitioners for the purpose of adoption and also details of training that they have taken for the adoption. Annexure A/2 was a document/undertaking by the petitioners that they are Roman Catholics and also that they will facilitate the meeting of the two Minors with their father namely Fabien Bob (Respondent No. 3) (emphasis provided), which undertaking also confirmed the fact that the authorities in the USA have been informed of the fact that the father of the two Minors is still alive and that the two Minors are Roman Catholics. The birth certificates of two Minors were filed as Annexure A/3 and A/4 respectively. These documents also included proof of address of the petitioners in the USA and the proof that tax payment of the above property was made and that the petitioners are residing in USA since 2003. Annexure A/6 was a document in respect of financial details and other related sources, pertaining to petitioners’ financial standing. Photographs of the layout of the residence where the two Minors would live with the Petitioners were also filed to show the standard of living they will have.
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.
6. It is an admitted position that two Minors are Roman Catholic so also the petitioners who want to adopt them and therefore they are not governed by Muslim Personal Law. It may be noted that in Pakistan there is no law for adoption inasmuch as that Islam does not recognize adoption. However, in United States of America, where the proposed adoption of the Two Minors is to take place has adoption laws; also evident from Annexure A to A/7 for which purpose the petitioners have also put into action the machinery available therefor. Hague Adoption Convention recognizes that a child should grow up in a family environment and in an atmosphere conducive to happiness and understanding which Convention has been adopted by USA with effect from 1-4-2008. Adoption is defined as a judicial or administrative act which establishes a permanent legal parent and child relationship between a minor and an adult who is not already the minor’s legal parent and terminates the legal parent-child relationship between the adoptive child and any former parent. The U.S. Child Citizenship Act, 2000 allows a new child to acquire American Citizenship automatically when he or she enters the U.S as lawful permanent resident. Since in Pakistan there is no adoption law and there is no adoption authority and that Pakistan is also not a Hague Adoption country and no child is adopted in Pakistan, therefore, under such situation and circumstances guardianship proceedings become inevitable. Such. proceedings were therefore also initiated in the case in hand which were dismissed by the two Courts below.
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 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.
8. This petition is disposed of in terms hereof. Needless to mention that the learned A.A.-G. also accorded her consent to the grant of this petition after receiving the copy of the statement and affidavit from the petitioners counsel.

(R.A.) Petition allowed.

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