What can be said about the approach taken by the Pakistani courts in child abduction cases? Little is known about this topic and of course since Pakistan is a new entrant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 it has not yet had the chance to develop any jurisprudence on it. However, some pre-Convention decisions are still very helpful in that regard and establish guiding principles. In the case of Misbah Rana/Molly Campbell, Writ Petition No.9730 of 2006, decided on 29 November 2006 by the Lahore High Court, Mian Saqib Nisar J (as he then was, later the Chief Justice of the Supreme Court of Pakistan) gave two judgments. The first of these was Ms Louise Anne Fairly v Sajjad Ahmed Rana PLD 2007 Lahore 293. The second was Ms Louise Anne Fairly v Sajjad Ahmed Rana PLD 2007 Lahore 300. The principle of “judicial comity” was key and Pakistan was not a pariah state. Mian Saqib Nisar J noted that Sajjad Ahmed Rana’s solicitors refused to act for him and the Scottish Court was equally unimpressed with him. Mian Saqib Nisar J recorded that he examined and interviewed Misbah Rana/Molly Campbell in his chamber. Despite the fact that she wanted to live in Pakistan, in his view “the reasons given by her that she is being prevented by the petitioner [mother] to lead her life in lines and according to the Islamic virtues seems to be tutored.”
He furthermore remarked that “at present, she is under the influence of respondents and therefore, much weight and importance cannot be given to her opinion.” The brief facts of the case were as follows. In Scottish proceedings, the Scottish Court had directed Sajjad Ahmed Rana, the father, not to remove Misbah Rana/Molly Campbell from the care and control of her mother, Louise Anne Fairly. However, despite the restraining order, he did remove his 12 year old daughter to Pakistan. This had resulted in the mother invoking the constitutional jurisdiction of the Lahore High Court to seek custody of the child. Mr Rana resorted to raising the plea that since the child professed Islamic faith, therefore, it was not in her welfare to be returned to Scotland because the culture and norms there were fundamentally in contradiction to the Islamic injunctions behind which he sought refuge (albeit unsuccessfully) for his misdeeds. Molly/Misbah was a British citizen and moreover a citizen of Pakistan by descent under section 5 of the Pakistan Citizenship Act 1951. The case was infamously seen in light of the “clash of civilisations” thesis. The Muslim father with a long beard, who looked like a mullah from Pakistan, had indeed abducted his half Scottish daughter and dragged her all the way to Punjab for a forced marriage. The mother was a white woman who converted to Islam and the couple had four children, whom they brought up as Muslims.
The story became infamous. Mian Saqib Nisar J did not think that Islamic principles were not relevant but other factors were also relevant. The Pakistani courts could exercise their jurisdiction only with regard to children ordinarily resident in Pakistan.
Observably, crucial in the Lahore High Court’s approach was the conduct of the father who had unlawfully removed his daughter from the UK and Mian Saqib Nisar J held that:
As regards the proposition raised before this Court by the counsel for the respondents that as the child professes Islamic faith, therefore, it is not in her welfare to send her back to UK, where the culture and norms are fundamentally in contradiction to the Islamic injunction, suffice it to say that the question about the welfare of the minor, can only be decided by a Court where the minor is habitually residing. In this case, as has been admitted by the respondent No.1, in his defences before the Scottish Court and also held by this Court, the minor is habitually resident of Scotland, therefore, I would not like to interfere in the jurisdiction of that Court regarding the determination of the issue of the welfare. Let the respondent No.1, raise these pleas before the Court in Scotland.
As is apparent, the court did not have to wrestle with the concept of habitual residence since the father did not contest that his daughter was habitually resident in Scotland. However, the father did attack the legitimacy of the bilateral UK-Pakistan Protocol on Children Matters 2003. These were deeply contested proceedings. The father argued that his daughter’s past residence and her Pakistani citizenship meant that was ordinarily and habitually resident in Pakistan, living her father, sister, brother and her stepmother and step-baby sister and had also been studying in a Pakistani school. Therefore, it was the Pakistani Courts, which had the jurisdiction to determine the question about her custody especially given that the child had shuffled back and forth between the UK and Pakistan and had studied in the latter country even during earlier time periods spent there. She was not ordinarily or habitually resident in Scotland and the father’s solicitors had bungled his case. Most tellingly she said she had not been abducted and wanted to stay in Pakistan. The admitted facts, however, told a different story. The parents were both British and lived in the UK with their children and until 2003 Misbah Rana/Molly Campbell was in her parents’ joint custody. In the defence filed in the Scottish Court, Sajjad Ahmed Rana had admitted that his daughter was habitually resident in Scotland.
Mian Saqib Nisar J held that the admission made by the father in Scotland “being part of his pleadings is binding upon him and he therefore, now cannot resile or withdraw from such admissions on the excuse that his solicitors have drafted the defences and made these admissions without his instruction.” Mian Saqib Nisar J added that since the father had also submitted to the jurisdiction of the Scottish Court and also made a solemn promise that the child shall not be removed:
it is inconceivable, as to how, the said respondent could think about violating, disobeying and disregarding the Court’s order and breach his promise, except that his action of bringing the child here is oblique, dishonest, ulteriorly motivated and is tainted with fraud to circumvent the orders of the Scottish Court and deprive the petitioner of her lawful custody.
The Lahore High Court had considered that “the removal of Misbah Rana to Pakistan is a deceitful and defrauding act.” The court also tackled the father’s attack on the status of the legitimacy of the bilateral UK-Pakistan Protocol on Children Matters 2003. The court did not propose to dilate upon matters and found that the problem placed before it could be solved without entering into the question about the validity of the Protocol. It was the view of the court that the principle of “judicial comity” applied, Mian Saqib Nisar J explained: “Pakistan is not a pariah, rather a responsible State and is a part of a civilized community of Nations; the Judiciary of this country is fully established and institutionalized and is one of the most important organs of the State.” Furthermore, the court added that since “the world has squeezed into a global village, it has become expedient that the principles of comity should be strictly applied, adhered and resorted to all the levels of the State institutions.”
Overall, Mian Saqib Nisar J thus concluded that the mother’s petition was competent within the ambit of Article 199 of the Constitution of Islamic Republic of Pakistan and section 491 of the Code of Criminal Procedure. It was his Lordship’s clear view that Sajjad Ahmed Rana had “not been an upright, fair, honest man, rather in removing the child, is guilty of showing disrespect and has violated the Court’s orders, besides breaching his own undertakings, and has obtained the custody in a wrongful manner.” He elaborated further that the father was “guilty of playing fraud and it is settled principle of law that no one can be allowed to have the premium of his fraud.” The father’s evidence of fact as to the child’s claimed residence was also weak and arguably non-existent. So therein we can find some of the ideas flowing through the heads of Pakistani judges in international family law cases.
Mian Saqib Nisar J added that the welfare of the minor was the paramount consideration in Pakistani law in a family matter pertaining to the minor’s custody and the same also applied in the UK and so he directed the custody Misbah Rana, within seven days from the date of his order to be handed over to a female officer of the British High Commission, to facilitate and coordinate her onward journey to Scotland in order for her custody to be duly restored to the mother. He also directed that the child’s passports should be handed over to the British High Commission for her journey back to Scotland (though at the time Misbah/Molly threatened that she would run away again).
Later the Supreme Court of Pakistan in Ms Louise Anne Fairly v Sajjad Ahmed Rana PLD 2007 Supreme Court 292 dismissed the petition in the Lahore High Court by converting the petition for leave to appeal into an appeal.
The reason was that the parties had entered into a compromise agreement in light of the proceedings conducted in the Lahore High Court and so Iftikhar Muhammad Chaudhry CJ and Mian Shakirullah Jan and Saiyed Saeed Ashhad JJ observed that they did not wish to enlarge the litigation and the custody battle and they explained that the full terms of the compromise were to be read as an integral part of the Supreme Court’s judgment.
The compromise agreement was as follows (i) the mother agreed to withdraw her petition before the Lahore High Court, (ii) the father had agreed that the mother may visit the child whenever she so desires for whatever period at his expense in the city of Lahore, Pakistan and complete entire travel expenditure and stay expense shall be borne by the father, (iii) and the father had no objection whatsoever if Misbah and her mother communicated on the internet telephone at any time, (iv) there would be no objection if Misbah wanted to travel to the UK to meet her mother, (v) the mother surrendered her full right to custody of Misbah in favour of the father and both the parties withdrew their cases in this respect from the jurisdiction in Scotland and from the jurisdiction in Pakistan, and (vi) both the parties agreed not to claim any costs in any proceedings anywhere.
These judgments were given in 2006-2007. Some years later Amelia Gentleman caught up with Misbah Rana/Molly Campbell in 2014. As she recorded in her article, in the UK the story had been stirred up by the media “in a crude and oddly racist way” and connected the abduction to forced marriage which was an evil apparent in all the third-world immigrants coming from Pakistan. As Amelia Gentleman explained, the custody battle had become an international drama and the ordeal was “held up as the symbol of a cultural clash between a white mother and her Muslim ex-husband.” Iftikhar Muhammad Chaudhry CJ and Mian Shakirullah Jan and Saiyed Saeed Ashhad JJ in the Supreme Court of Pakistan had also proved otherwise in disposing of the case. Given that the Scottish mother was a foreigner, the court directed the Inspector General of Police, Punjab for providing her full protection and security during her arrival, departure and stay in Pakistan and further directed the police to send a report of the measures taken for her security to the registrar of the court.
Misbah Rana/Molly Campbell ultimately returned to the UK and recalls that Pakistan was hot and more strict than Scotland. She also regrets giving a press conference against her mother and recalls that she did not even know that her father and siblings were going to Pakistan and only thought that they were “coming to London and then coming back” but ended up in Pakistan.
The family now fully agree that it was the child Misbah/Molly who had suffered the most in their ugly ordeal. Ultimately, the girl who was shocked by Mian Saqib Nisar J’s ruling requiring her to be returned to Scotland (“was just crying and crying” as she put it) in just seven days returned to live with her mother with whom she has a very close relationship. The reported case law above demonstrates that the Pakistani courts will not allow a parent to take refuge behind the injunctions of Islam in cases where foreign courts have already made orders on the merits in legal proceedings.
Furthermore, other authorities such as Sara Palmer v Muhammed Aslam 1992 MLD 520, Aya Sasaki v Zarina Akhtar 1999 CLC 1202, Hiroku Muhammed v Muhammad Latif 1992 MLD 1682 and Peggy Collin v Muhammad Ishfaque Malik PLD 2010 Lahore 48 all show that Pakistani courts are slow to side with the abducting Pakistani father. Indeed, this trend was again confirmed by Ms Louise Anne Fairly v Sajjad Ahmed Rana PLD 2007 Lahore 293 and Ms Louise Anne Fairly v Sajjad Ahmed Rana PLD 2007 Lahore 300. Nevertheless, it is highly interesting to observe as Lady Hale does in The Hague Child Abduction Convention: A Critical Analysis that mothers have an overwhelming tendency to abduct children and the numbers are clear in that regard: “69 per cent of abductors are mothers”. The judgment of Mian Saqib Nisar J on judicial comity must, however, be seen in light of the fact that comity is not an absolute obligation and can be overtaken by other considerations and excessive reliance on it should not be resorted to provide support to a restrictive interpretation of the grave risk defence under Article 13(b) of the Convention, namely “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
The Lahore High Court traces its roots back to 1866 and in 1919 the Letters Patent created the High Court of Judicature at Lahore, the judges were appointed directly by His Majesty the King Emperor. Upon Partition in 1947, the High Court (Lahore) Order 1947 preserved the court’s continuance with all rights, powers and privileges as enjoyed and possessed by it before the appointed day and the Governor-General of the Dominion of Pakistan became the substitute of the Crown in matters of appointment etc of judges. However, prior to the rise of British power in Punjab, Maharaja Ranjit Singh’s empire had set up the Chief Court at Lahore as the sole Court in his realm.