Guardianship Guardianship and Inheritance Status of Found Children of Unknown Origin from the Perspectives of Islamic Law and Positive Law

Abstract

This research examines the guardianship status of found children (al-la-qith) from the perspectives of Islamic law and positive law in Indonesia, as well as analyzing the inheritance concept for found children under both legal systems. The legal status and recognition of found children is a crucial issue considering the phenomenon of babies abandoned by their parents due to economic factors or efforts to conceal shame, as well as the impact of natural disasters that result in many children being neglected and separated from their parents. This research employs library research with a normative juridical approach, collecting data from literature, books, and legislation concerning child protection. The data analysis technique used is qualitative descriptive with a comparative approach between Islamic law and positive law. The results show that according to positive law as stipulated in Article 27 paragraph 4 of Law Number 35 of 2014 concerning Child Protection, recognition of lineage or determining a child's origin can be proven through a birth certificate as an authentic deed, and applications for determining a child's origin are submitted to the Religious Court to be decided by a judge. In Islamic law, the recognition of a found child's lineage can be accepted if it meets certain conditions, namely that the child's lineage is unknown, the recognition is logical, the child who has reached puberty agrees, and there is no existing lineage relationship with another person. The state is responsible for guaranteeing the child's right to living expenses and education in accordance with Article 39 paragraph 5 of Law Number 35 of 2014. In Islamic law, taking care of a found child is a collective obligation (fardhu kifayah) with the legal status of an adopted child, and the marriage guardian for a female child who has reached adulthood is a judge. This research recommends harmonization between Islamic law and positive law as well as the strengthening of comprehensive protection for the rights of found children.