Pakistan and the Child Abduction Convention

Pakistan is notorious for child abduction. The UK has a large and vibrant British-Pakistani community of more than a million people making it the largest Pakistani population in Europe. On 22 December 2016, Pakistan deposited its instrument of accession to the Hague Convention on the Civil Aspects of International Child Abduction 1980. This made Pakistan the 96th Contracting State to the Convention which entered into force for Pakistan on 1 March 2017. Pakistan became the first South Asian and the fourth Muslim country to align itself with the principles of the Convention and on 25 September 2017 the Ministry of Law and Justice took action to ensure that the family courts are in a position to entertain international child abduction cases concerning custody, orders passed by foreign courts and judgments from Contracting States of the Hague Convention. Prior to these developments, judges in the UK and Pakistan had agreed on the UK-Pakistan Protocol on Children Matters 2003 on which I have assisted the UK courts as an independent legal expert on numerous occasions. The Protocol reflects a judicial understanding trying to secure the return of an abducted child to the country of their habitual residence. But since it was entirely non-binding in Pakistani law and was an exclusive UK-Pakistan initiative, it did not really address the problem of child abduction in concrete terms.

The Hague Convention provides a structure to support contracting states, by providing a various civil, non-criminal, legal formalities and procedures for the protection and safe return of abducted children when removed from Convention countries. Once Pakistan’s accession is accepted by the Contracting States, the Convention will enter into force between Pakistan and existing Contracting States. Since the UK is still in the EU, it will have to wait until the EU approves of Pakistan’s accession unless Brexit can present an unexpected boon by expediting the process in which case the British can make their own arrangements with directly with the Pakistanis without being hampered by bureaucracy from Brussels which is unfortunately inhibiting the quick and timely progress of pending children cases in Pakistan. The process of recovering abducted and wrongfully retained children from Pakistan is lengthy and tiresome but the judgments of the superior courts show that the Pakistani judiciary does have a tendency to give custody of the child to the non-Muslim mother with foreign custody rights even when the abducting father resorts to hiding behind Islam to shield his actions.

Cases such as Sara Palmer v Muhammed Aslam (1992 MLD 520), Hiroku Muhammed v Muhammad Latif (1992 MLD 1682), Aya Sasaki v Zarina Akhtar (1999 CLC 1202) all show that the Pakistani courts are slow to side with the abducting Pakistani father. Indeed, in Peggy Collin v Muhammad Ishfaque Malik (PLD 2010 Lahore 48), the Lahore High Court applauded the French mother’s courage and determination for entering a hostile environment far away from home to seek the enforcement of a French custody order over her son. Islam did not warrant the denial of rights to an honest Christian mother where the Muslim father’s behaviour was dishonest and perverse.

Indeed, in the famous post UK-Pakistan Protocol case of Louise Anne Fairley v Sajjad Ahmed Rana (PLD 2007 Lahore 293), concerning Misbah Rana/Molly Campbell who personally preferred Pakistan to racist Scotland and considered her white mother to be an infidel, the Lahore High Court rejected the father’s the plea on the “Injunctions of Islam”. Throwing out the father’s argument that he wished to raise his daughter under “Islamic laws”, the Lahore High Court remained adamant that the Scottish courts were competent to rule on such issues. Sir Mathew Thorpe, the former optimistic head of international family justice, perhaps rightly remarked: “Beyond its direct effect the Protocol stands as a first example of a judicially negotiated accord to establish jurisdictional rules and to avoid jurisdictional conflict between two jurisdictions.” However, in Christine Brass v Dr Javed Iqbal (PLD 1981 Peshawar 110) the custody of abducted children was denied to the Canadian Christian mother (custodial parent) on the basis of religion. The outcome wrecks the neat chain of case law but the Pakistani judiciary tends to ignore the approach which of course has nothing to do with the UK-Paksitan Protocol in any event.

Pakistan designated a judge in 2013 to the International Hague Network of Judges (IHNJ) specialised in child and family law matters; Mr Justice Tassaduq Hussain Jillani, former Chief Justice, Supreme Court of Pakistan. One of his judgments – namely Human Rights Case No 23150-G of 2010 – in the Supreme Court of Pakistan (exercising its Original Jurisdiction) is a powerful reminder regarding the key role of mediation in testing cases between spouses in the UK-Pakistan context. The father retained the two children in Pakistan after a visit there. Two attempts at reconciliation between the spouses failed and the mother gave birth to a third child in Pakistan after which she returned to the UK and took legal action in Pakistan. An agreement as to contact between mother and the children in the UK and Pakistan was made by consent.

Assuming the role of a first instance trial judge, Justice Jillani stressed that article 35 of the Constitution of Pakistan 1973 requires that as a principle of policy the “State shall protect the marriage, the family, the mother and the child”. He noted that section 89A of the Civil Procedure Code 1908 was equally relevant as it provided for alternative dispute resolution mechanisms. Although the UK-Pakistan Protocol on Children was not engaged, a copy of the order was nevertheless sent to the President of the Family Division of the High Court.

Justice Jillani also served as co-chair to the Working Party on Mediation – established in 2009 within the “Malta Process” – to facilitate the development of mediation structures to resolve cross-border family disputes. The Malta Process promotes co-operation with countries with legal systems influenced by or based upon Islamic Shari’a law, for the international protection of children and the resolution of complex, trans-frontier family conflicts.

Pakistan also played an active role in the recent May 2016 Fourth Malta Conference on cross-frontier child protection and family law (“Malta IV”) within the Malta Process. The Malta IV meeting recognised that the Child Abduction Convention 1980, the Child Protection Convention 1996 and the Child Support Convention 2007 support a number of key principles expressed in the United Nations Convention on the Rights of the Child 1989, all in the best interests of children. The experts noted that these Hague Children’s Conventions are designed to be global in reach and to be compatible with diverse legal traditions. For example, in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, Baroness Hale of Richmond observed:

48. The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their “home”, but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed.

While ratifying the Convention, Pakistan has ensured that it will apply to all its and confirmed in its acceding statement that the Convention is a state specific multilateral commitment. Therefore, it is now an obligation of the Federal Government to ensure its implementation through appropriate means and vested powers to the Central Authority under statute as of 25 September 2017. However in its accession, Pakistan has also made certain reservations in relation to articles 8, 10, 15 and 16 of the Convention.

Pakistani law deals with child abduction under the provisions from the Pakistan Penal Code 1860 (as amended), the Code of Criminal Procedure 1898 (as amended) and the Guardian and Wards Act 1890 (as amended). The Hague Convention, under article 2, requires contracting states to make all necessary efforts to implement the Convention in their domestic legal system. Accordingly, subsection 3 of section 5 of the West Pakistan Family Courts Act 1964 has been amended by virtue of SRO No 980 (1) 2017 to include in its schedule Part 1 No – 6A “Matter pertaining to return of the child under the Hague Convention on Civil Aspects of International Child Abduction, 1980” so as to transpose international standards into Pakistan’s domestic law. The amendment automatically extends the jurisdiction of all family courts in Pakistan dealing cases under section 25 of the Guardian and Wards Act 1890 to entertain matters relating to international child abduction disputes concerning custody, orders passed by foreign courts and judgments from contracting states of the Hague Convention. While the UK has not yet accepted Pakistan’s accession and is expected to do so in the near future, it is noteworthy that:

As of September 2017 the 1980 Convention is only in force between Pakistan and Ukraine, New Zealand and Andorra. The 1980 Convention will only be able to be used between these countries and Pakistan, and only if the abduction happened after the date the Convention came into force between the two countries.

Importantly, the Solicitor General’s Office in the Ministry of Law and Justice in Pakistan is the designated Central Authority under article 6 of the Convention. Therefore, Pakistan is now finally ready to interact robustly on children’s issues with the rest of the world. All this is very helpful to the millions of overseas Pakistanis and the entry of the Convention into force in domestic Pakistani law is a very positive sign. It is, indeed, the beginning of a new chapter in international legal cooperation in Pakistan’s history. Having worked in the hot, harsh and hostile environment in Pakistan’s family courts for more than a decade, I can say that it is the right time to raise the Hague Convention in first instance courts or in the superior courts in their original jurisdiction despite the fact that the exact mechanics of the full operation of Convention in Pakistan are still being settled. Things are all the more exciting in the field because the present Chief Justice of the Supreme Court of Pakistan, Mr Justice Mian Saqib Nisar, is the same judge who decided Misbah Rana’s case in the Lahore High Court. It is probably the case that his Lordship will be keen to indulge in matters related to the Convention.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Child Abduction, Children, Hague Convention, Human Rights, Pakistan, Women and tagged , , , , , , . Bookmark the permalink.

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