Pakistan is notorious for child abduction. In the case of Sumayyah Moses v SHO and Others (Writ Petition No. 74048 of 2019) PLD 2020 Lahore 716, the Lahore High Court explained that the Hague Convention on the Civil Aspects of International Child Abduction 1980 is not an extradition treaty, as it focuses on procedure and jurisdiction rather than on merits of any underlying custody issue. Tariq Saleem Sheikh J examined articles 3 and 5 of the Hague Convention and the distinction in civil and criminal law in relation to abduction. The court also addressed issues related to Article 199 of the Constitution of Pakistan 1973 and section 491 (power to issue directions of the nature of a habeas corpus) of the Code of Criminal Procedure. Tariq Saleem Sheikh J examined numerous English cases. He said that after carefully studying the principles set out by the Court of Appeal in Re M (Abduction: Non-Convention Country)  1 FLR 89, he arrived at the clear view that they were consistent with Pakistan’s jurisprudence and thus adopted them. The court dismissed the petition and held that the petitioner mother should approach the Guardian Court which would decide the matter. Tariq Saleem Sheikh J held that the High Court was competent to entertain a habeas corpus petition under Article 199 of the Constitution or section 491 of the Code and direct that a person in custody within its territorial jurisdiction be produced before it and satisfy itself that he was not being held unlawfully.
That was all the more so where the petitioner was a mother who had a bona fide belief that the children were removed from her custody by use of chicanery and subsequently forced to stay in Pakistan against her will and she could not be precluded from approaching the High Court. Tariq Saleem Sheikh J further added that proceedings in the habeas corpus jurisdiction are summary in nature and the High Court is disabled from conducting a detailed inquiry which was necessary. The petitioner mother had recourse to the Guardian Court which which was the proper forum. The court pointed out that under section 5 of the Pakistan Citizenship Act 1951 all children wherever born of a Pakistani father are deemed to be citizens of Pakistan by descent. This was the result of Muhammad Younas v Shahzad Qamar and Others PLD 1981 Lahore 280 where it was held that the respondents were born in the UK, they were citizens of Pakistan by descent in terms of section 5 and the Family Court at Sialkot had jurisdiction to decide the matter. In Rochomal Daryanomal v The Province of West Pakistan PLD 1960 Karachi 150, the court had held that the child’s nationality is determined by that of his father and the onus to prove rests on the person alleging the contrary. In Abu Saeed A Islahi v Mrs Talat Mir and Others 1994 MLD 1370 it was held that in law children are deemed to hold their father’s citizenship and the question of them renouncing of citizenship cannot arise till they attain the age of majority.
The Muslim petitioner mother was a South African national. She married her Pakistani husband in 2010. The husband was from Faisalabad and had gone to South Africa to earn a livelihood. They had two sons, Abdul Hannan Moses and Arshman Rizwan, who were born in 2011 and 2014 respectively. The mother said that they lived together in South Africa and that in 2016 they came to Pakistan along with their two children to visit the husband’s family and upon the end of their scheduled vacation her husband sent her back to South Africa but himself remained in Pakistan with the children on the pretext that his father was ill. He promised to follow her as soon as he got better. She returned to South Africa without suspecting that it was a clever ruse to retain the children in Pakistan. She was unable to travel to Pakistan again because of her job and sick mother. Yet she kept urging her husband to come back or at least return the children but he did not care. In April 2019, she came to Pakistan but he did not welcome her despite the fact that their marriage was intact and mistreated her instead. She had no option but to go back.
Pursuant to her instructions her lawyer filed a writ petition in the Lahore High Court for recovery of her sons but that could not proceed because she had flown back. Thus, that petition was disposed of: she went to Pakistan again and filed yet another petition praying for the same relief. She also began proceedings against him in the Children’s Court in South Africa. The father then filed an application under section 7 of the Guardians and Wards Act 1890 in the Guardian Court at Samundari in Faisalabad. His application had proceeded ex-parte against the mother and he was appointed guardian of the children, a guardianship certificate was issued to him.
The mother said that Abdul Hannan and Arshman Rizwan were South African nationals and habitual residents of Worcester. She submitted that the father had deceitfully brought them to Pakistan and deprived her of her parental rights and that the custody of the children with the father was illegal and improper. She contended that the children were of tender age and needed her support and care. She submitted that it was in their best interest that they should be repatriated to South Africa. She had instituted proceedings in Worchester which were still pending, if the father wanted their custody he could go and participate in the proceedings in South Africa. As for the guardianship certificate she argued that it was without jurisdiction as the Guardian Court at Samundari was not competent to appoint the children’s guardian as they were citizens of South Africa. Even otherwise, the said certificate had no legal sanctity as the father had procured it behind her back. He had dishonestly given her false address to the court and manoeuvred to keep her out of the proceedings.
The Additional Advocate General raised an objection that the constitutional petition was not maintainable since the mother had an alternate and efficacious remedy before the Guardian Court. The father argued that the mother had distorted the facts and had tried to mislead the High Court. He said that the family had their home in South Africa.
In 2016 they decided to permanently shift to Pakistan and then the mother returned to South Africa to her job and her ill mother. He further submitted that Abdul Hannan and Arshman Rizwan were Pakistani citizens by descent under section 5 of the Citizenship Act 1951. He claimed that the Guardian Court at Samundari was competent to entertain his application and it had correctly appointed him the children’s guardian. He submitted that the guardianship certificate held the field and the mother had not challenged it. He also denied the allegation that he had used chicanery to procure it and said that unless it was quashed or set aside through due process, the Lahore High Court could not intervene while exercising constitutional jurisdiction.
The amicus curiae submitted that in custody matters, the child’s welfare was of paramount consideration and the child’s best interests were normally secured by having his or her future determined in the jurisdiction of his habitual residence. The instant case, however, had some peculiarities. Abdul Hannan and Arshman Rizwan came to Pakistan in 2016 and were there for more than three-and-a-half years and that period was long enough for them to develop roots in Pakistan.
There was, prima facie, evidence that the mother had acquiesced in their settling in Pakistan country. Therefore, an elaborate inquiry was required to determine as to what would serve their best interests. The matter could not be decided in habeas corpus proceedings which were summary in nature. The amicus curiae argued that the mother should be directed to seek her remedies before the Guardian Court which was competent to decide all questions of law and fact. He further submitted that the Guardian Court at Samundari had appointed the father as the guardian of the children which was in the mother’s knowledge but she had not challenged that order. For that further reason, she should be asked to have recourse to that forum.
Lahore High Court
The court embarked upon its analysis by observing that owing to globalisation people leave their homelands to look for opportunities abroad. Moreover, some of them also get married abroad and cultural incompatibility means that marriages quite often fall apart and disputes arise over children who are dragged into their parents’ misunderstandings. The court said that “unresolved disputes in such situations lead to legal proceedings in the country of origin as well as in the adoptive country which give rise to conflict of laws and jurisdictions” and explained that “the instant case happens to be one of those cases.” The court disposed of the petition directing the mother to approach the Guardian Court which was directed to decide the matter expeditiously in accordance with the law discussed in the present judgment and as an interim measure, but the father was to allow the mother free access to Abdul Hannan and Arshman Rizwan. If the mother managed to obtain separate accommodation, she was permitted to take the children with her on Sundays. However, she was prohibiting from removing them from Pakistan without the permission of the Guardian Court.
(i) Analysis of law and jurisprudence
Tariq Saleem Sheikh J embarked upon his analysis of the law with English decisions and he noted that the English focus on the welfare of the child – which is indeed of paramount importance in questions relating to custody. He first extracted the following passage from Morton J’s judgment in Re B’s Settlement (1940) Ch 54:
… I am bound to consider first the welfare of the infant, and to treat his welfare as being the paramount consideration. In so doing, I ought to give the weight to any views formed by the courts of the country whereof the infant is a national. But I desire to say quite plainly that in my view this court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the courts of any other country.
The approach was approved by the Privy Council in McKee v McKee (1951) AC 352, and it was held by Lord Simonds that in custody proceedings the welfare of the child is always the paramount consideration and the order of a foreign court is only one of the elements which should be considered in that regard. The court in whose jurisdiction the child is removed is bound to form an independent judgment on the merits of the case. Re H (Infants) (1966) 1 All ER 886 involved the abduction of two American boys to England, the Court of Appeal stated that unauthorised removal of children from one country to another was against their welfare and Willmer LJ approved of the judgment of Cross J – the trial judge – that “a judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child.”
The court noted that in Re L (Minors) (Wardship: jurisdiction) 1974 (1) All ER 913 (CA) the Court of Appeal held that the principle that the child’s welfare is the first and paramount consideration applied to kidnapping cases as well. The removal of a child from his or her country, society and culture crates adverse impacts and prompt return to his or her country of origin would serve his or her best interests. Indeed “the court should take into account the conduct of the peccant parent while deciding the matter but it must not penalise the child for it.” Among other things, the Court of Appeal said “an order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily.” It opined that “To take a child from his native land, to remove him to another country where, may be, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors), which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted.”
In Re R (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416 (CA), Ormrod LJ opined that “It follows that the strength of an application for a summary order for the return of the child to the country from which it has been removed, must rest, not on the so-called ‘kidnapping’ of the child, or an order of a foreign court, but on the assessment of the best interests of the child. Both, or either, are relevant considerations, but the weight to be given to either of them must be measured in terms of the interests of the child, not in terms of penalising the ‘kidnapper’, or of comity, or any other abstraction.” He also added that “‘kidnapping”, like other kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to the prompt return of the child to his or her own country, but not the sacrifice of the child’s welfare to some other principle of law.” In Re R (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416 (CA), it was authoritatively held that the concept of forum conveniens has no place in wardship jurisdiction.
The Lahore High Court turned its attention to the Indian jurisprudence and conducted a survey of some authorities. Tariq Saleem Sheikh J prefaced his appraisal with the opinion of Sai Ramani Garimella’s International Parental Child Abduction and the Fragmented Law in India – Time to Accede to the Hague Convention? 17 Macquarie L.J. 38 (2017) where it is argued that “while there have been references to foreign court opinions in a few cases and stray allusions to conceptual strands of private international law, it does not follow that such references indicate that [the] Indian courts borrowed any theoretical constructs to develop a pattern in handling these disputes, nor has there been an attempt to develop an indigenous one.” Notably, in the case of Smt Surindar Kaur Sandhu v Harbax Singh Sandhu & Another (AIR 1984 SC 1224), the Supreme Court of India formulated the view that since the parties had their matrimonial house in England, it established sufficient ties with that country and it was just and proper that the matter should be left to the courts there.
In Mrs Elizabeth Dinshaw v Arvand M Dinshaw & Another (AIR 1987 SC 3), the Supreme Court of India held that the (male) child’s welfare required that he should be handed over to his mother. It added that the boy was in India as a result of abduction and the father who had committed that illegal act could not claim any advantage. It endorsed the position in Re H (Infants) that it was the duty of the courts in countries all over the world to see that a person wrongfully removing a child from his country does not gain any advantage of his acts.
In Dhanwanti Joshi v Madhav Unde (1998 (1) SCC 112), the Supreme Court of India held that in Elizabeth Dinshaw v Arvand Dinshaw the child was sent back to the USA to the mother not only on the principle of comity but also because on the facts of that case such an order was in the child’s interest. The Supreme Court of India also distinguished that case on the ground that the mother moved the application in India for custody within six months of his removal by the father. It held that in certain circumstances the courts of the country to which the minor is taken may be required to conduct an elaborate inquiry to determine the question of his welfare. The court rejected the prayer for returning the child to the USA and said that “summary jurisdiction is exercised only if the court to which the child had been removed is moved promptly and quickly … this would mean that longer the time gap, the lesser the inclination of the court to go for a summary inquiry.”
In Surya Vadanan v State of Tamilnadu & Others (AIR 2015 SC 2243) the mother brought the child to India in violation of the order passed by a US Court. She did not return the child to the jurisdiction of that court so it issued bailable warrants for her arrest. The Supreme Court of India held that the principle of “comity of courts” is essentially a principle of self-restraint. It is applicable when a foreign court is seized of the issue of a child’s custody prior to the domestic court. There may be a situation where the foreign court though seized of the issue does not pass any effective or substantial order or direction. Setting out five principles the court outlined the principles for deciding international abduction cases. Foremost among these was that the welfare of the child is the paramount consideration. The mere fact that a foreign court has taken a particular view on any aspect concerning the welfare of a child is not enough for the Indian courts to shut out an independent consideration of the matter. The principle of comity of courts simply demands consideration of an order passed by a foreign court and not necessarily its enforcement. Among other things, the court said that since the interest and welfare of the child is paramount, a domestic court is entitled and indeed duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. The Supreme Court of India further ruled that if an order of a foreign court is in the field the domestic court would be guided by the four principles while deciding whether an elaborated inquiry should be conducted or not, chief among these was “the nature and effect of the interim or interlocutory order passed by the foreign court.”
Next, the Lahore High Court turned its attention to Pakistan’s own jurisprudence which also applied the principle that the welfare of the minors is supreme. In Mrs Mosselle Gubbay v Khawaja Ahmad Said and others PLD 1957 West Pakistan Karachi 50, an Indian Jewish girl married an Indian Muslim. In 1952 their marriage was dissolved by the Calcutta High Court and the custody of two minors was given to the mother. But the father managed to bring the children to Pakistan in violation of the order of the Calcutta High Court. The mother filed a habeas corpus petition in Pakistan. The High Court in Karachi dismissed it holding that it was improper to give the children’s custody to a Jewish mother – an Indian national and residing in India. Moreover, in Christine Brass v Dr Javed Iqbal PLD 1981 Peshawar 110, the Peshawar High Court refused to give custody of the children to the mother despite a US court’s order entrusting their custody to her. The Peshawar High Court said that “the court will consider a foreign order as to custody, but only subject to the paramount consideration of the welfare of the child.” The foreign decree was not able to trump the Muslim father’s “legal right both under the domestic law as well as international law to see that his children are brought up in the Muslim faith.”
In Sara Palmer v Muhammad Aslam 1992 MLD 520 the petitioner lady was a British citizen of Kenyan origin who had converted to Islam and married the Pakistani father in England and settled there. The father brought the children to Pakistan in breach of the English court’s order and filed a petition in the Guardian Court for being appointed as their guardian and the mother moved a habeas corpus petition in the Lahore High Court. The court held that in the peculiar circumstances of the case an elaborate inquiry was required to determine what was in the interest of the minors and the Guardian Court was the proper forum but nevertheless the court allowed the mother to have their custody until the decision of that court. In Abu Saeed A Islahi v Mrs Talat Mir 1994 MLD 1370, the High Court was to determine whether the decree of the US court operated as res judicata. The court held that it did not bar filing of an application for the custody of the minors especially when the circumstances in which it was passed had changed. The foreign court’s order was one of the factors to be considered by the Guardian Judge but it was not conclusive.
Notably, in the case of Peggy Collin v Muhammad Ishfaque Malik PLD 2010 Lahore 48 the respondent father surreptitiously brought the child to Pakistan but subsequently executed an agreement with the petitioner mother and in then took him back to France. The French court adjudged that the child was to ordinarily live with the mother while the father was to have visitation rights but he could not remove him beyond the jurisdiction of the court. However, the father disregarded the agreement (and the court’s judgment) and removed the child to Lahore. In a habeas corpus petition by the mother, he contended that the boy could not be handed over to her because she was a Christian and under the law he had a fatherly right to raise his son as a Muslim. The High Court rejected the argument, holding that it was rather “distressed” by the father’s plea because when it came to falling in love with a Christian there was no issue and the father had himself opted to live in France and “religion, nationality and culture did not have much significance as long as it suited him.” On any view, the father’s behaviour had amounted to a “ruse” which was “offensive to justice, equity and good conscience”.
Moreover, in Mirjam Aberras Lehdeaho v SHO, Police Station Chung Lahore 2018 SCMR 427, the Supreme Court of Pakistan held that since the children were old enough to form an intelligent preference, the High Court had erred in law in failing to determine their wish. The court was obliged to make a balanced and dispassionate assessment of the circumstances in order to protect their physical safety, emotional well-being and welfare. The court set aside the ex-parte Guardianship Certificate and directed the Guardian Court to decide the matter afresh after hearing the parties. As an interim measure, it handed over the custody of the minors to the mother. Notably, Pakistan recognises the principle of comity of courts. In Muhammad Ramzan (deceased) through L.Rs. and others v Nasreen Firdous and others PLD 2016 SC 174, an appeal arising from a suit for administration connected to property situated outside Pakistan, the Supreme Court held:
It is clear that foreign judgments are conclusive as to any matter thereby adjudicated upon and Pakistani courts must recognize and enforce the same. However, before enforcing any foreign judgment a Pakistani court will have to ensure that it does not fall within any of the exceptions contained in Section 13 CPC.
(ii) Hague Convention
The Lahore High Court explained that the Hague Convention represents the international community’s response to growing custody-related disputes in an era of globalisation. The court said that Pakistan had acceded to the Convention on 22 December 2016 with certain reservations in relation to Articles 24 and 26. The court said that the Convention aims to protect the children internationally from the harmful effects of their wrongful removal or retention by a parent. For this purpose it establishes procedures to ensure their prompt return to the State of their habitual residence and to protect the rights of access. It ceases to apply when a child attains the age of 16 years.
The Lahore High Court paid attention to articles 3, 5, 12 and 13 of the Convention and held:
30. The Hague Convention is not an extradition treaty. It focuses on procedure and jurisdiction rather than on the merits of any underlying custody issue.
The Lahore High Court was driven to its conclusion by the view of Lara Cardin in The Hague Convention on the Civil Aspects of International Child Abduction as Applied to Non-Signatory Nations: Getting to Square One (1997) 20 Hous and also the opinion of Linda Silberman in her article Hague Convention on International Child Abduction: A brief Overview and Case Law Analysis, 28 FAM. L.Q. 9, 11 (1994). The court said that when a child is taken to a country in which the Hague Convention does not apply, the law of that country governs custody determinations. The court will often consider the child’s best interest in determining custody but as the court noted each country has a different definition of this term. Prior to pronouncing his own view in the present case, Tariq Saleem Sheikh J turned his attention to Re M (Abduction: Non- Convention Country) where the Court of Appeal held that the English courts act upon four principles in non-Convention cases, (i) first, the underlying assumptions which the court applies prima facie to every case are those which underlie the Hague Convention itself (ii) secondly, in acting by analogy with the Convention the court takes account of those matters which it would be relevant to consider under Article 13 (iii) thirdly, it is of the essence of the jurisdiction to grant a peremptory return order that the judge should act urgently and (iv) fourthly, the principle of comity applies.
Tariq Saleem Sheikh J observed that Article 38 of the Hague Convention declares that the accession will have effect only as regards the relations between the acceding State and such contracting States will have declared their acceptance of the occasion. He reminded himself that when a country accedes to the Convention, it is not automatically partners with all the other countries who have ratified or acceded to it.
Countries must accept another country’s accession to the Convention under the terms described in the Convention before a treaty is created. South Africa acceded to the Convention in 1997 and Pakistan acceded to it in 2016 (with reservations). Since South Africa has not accepted Pakistan’s accession so far, it is not in force between them.
Tariq Saleem Sheikh J carefully analysed the principles articulated by the Court of Appeal in Re M (Abduction: Non-Convention Country) and “found that they are consistent with our jurisprudence”. Hence, there was “no reason why we should not adopt them”. He observed that in S v S (Abduction: Non-Convention Country)  2 FLR 681, a South African court granted interim custody to the mother who moved the child to England. The father initiated wardship proceedings for his return to South Africa. The High Court (Family Division) gave effect to the underlying principles of the Hague Contention. It ruled that the child had strong connections with Isle of Man as he did with South Africa but his parents had chosen South Africa to be his home for the foreseeable future. The court held that his interests would be best served there and it repatriated him to South Africa. Tariq Saleem Sheikh J held:
36. In private international law the term “abduction” carries a meaning somewhat different from criminal law. There it connotes removal or retention of a child in breach of another‟s rights of custody. The phrase “rights of custody” may have varying meanings. However, keeping in view the fact that 101 countries are party to the Hague Convention one should prefer the definition given in Article 5 thereof which says that these rights “include rights relating to care of the person of the child and, in particular, the right to determine the child’s place of residence.”
In the present case, the facts pleaded by the mother prima facie demonstrated that she had a case against father for wrongful removal and retention of their sons. The court said that “the rights of a married couple as to the custody of their children are joint” it said that the mere fact that the mother does not have a formal/final custody order from a court of South Africa did not preclude her from asserting her rights in Pakistan. He also agreed with Lara Cardin that “a formal custody decree from the State of habitual residence need not exist in order to obligate a court to return the child. Nor is the absence of a formal custody decree reason to decline return.”
On the mother’s view, in 2016, the father had brought her and the children to Pakistan ostensibly for a vacation, then deceitfully sent her back to South Africa and thereafter denied all access to the boys. She had produced return tickets of the family to substantiate her contention that there was a plan to go back. The father said that the family had their home in South Africa but they permanently shifted to Pakistan in 2016. Her mother fell ill and she did not return and instead filed proceedings. He denied that he has snatched the children by subterfuge and had messages from her to support this. The sons had no doubt been in Pakistan since 2016 and the constitutional petition was filed more than three-and-a-half years after the alleged cause of action arose.
Three questions arose for determination (i) whether the family came to Pakistan in 2016 with intent to permanently settle here (ii) if there was no such intention at the inception, whether the mother subsequently acquiesced in relocating the children to Pakistan; and (iii) whether the boys have developed roots in Pakistan during the three-and-a-half years they had been there and whether there was a grave risk that their return would expose them to psychological harm or otherwise place them in an intolerable situation. The court took the view that these questions could not be decided without recording evidence.
The court was competent to entertain a habeas corpus petition under Article 199 or section 491 and direct that a person in custody within its territorial jurisdiction be brought before it and satisfy itself that he is not being held in improper or illegal custody. Indeed, more particularly, where the petitioner is a mother who bona fide believes that the children have been removed from her custody unlawfully and retained in Pakistan, she could not be precluded from court redress and access. On the other hand, Tariq Saleem Sheikh J held:
39. … However, the proceedings in the habeas corpus jurisdiction are summary in nature and this Court cannot conduct detailed inquiry which is required in this case. For that the Petitioner must have recourse to the Guardian Court which is the proper forum.
Another important issue arose. The mother had contended that the father had obtained guardianship of the children under section 7 of the Guardian and Wards Act 1890 by using fraud and misrepresentation by deliberately giving her wrong address to keep her out of the proceedings. The court found that despite the allegation, the guardianship certificate issued in the father’s favour still held the field and conferred various legal rights on him, including the right to the custody of the children. Thus, in the circumstances, the mother required an order from the Guardian Court before she could remove the children from Pakistan.
The mother argued that since the children were South African nationals the Guardian Court in Pakistan had no jurisdiction to appoint a guardian and that the guardianship certificate of 2019 was void ab initio. The court held that “this contention deserves a short shrift” and said that within the meaning of the provision in section 5 of the Pakistan Citizenship Act 1951 all children wherever born of a Pakistani father are citizens of Pakistan by descent. Indeed, this was the result of Muhammad Younas v Shahzad Qamar and Others PLD 1981 Lahore 280 where it was held that the respondents were born in the UK they were citizens of Pakistan by descent in terms of section 5 and the Family Court at Sialkot had jurisdiction to decide the matter. Moreover, in Rochomal Daryanomal v The Province of West Pakistan PLD 1960 West Pakistan Karachi 150 it was held that the child’s nationality is determined by that of his father and the onus to prove rests on the person alleging the contrary.
Furthermore in Abu Saeed A Islahi v Mrs Talat Mir and Others 1994 MLD 1370 it was held that, in law, children are deemed to hold their father’s citizenship and the question of them renouncing of citizenship cannot arise till they attain the age of majority. Overall, the court disposed of the petition directing the mother to approach the Guardian Court which would decide the matter expeditiously in line with its judgment.
This judgment should pour cold water over the hopes of those left behind parents who made the mistake of thinking that the Hague Convention operates as an extradition treaty. Further, it is also apparent from Article 38 of the Hague Convention that when a country accedes to the Convention, it is not automatically partners with all the other countries who have ratified or acceded to it. Countries must accept another country’s accession to the Convention under the terms described in the Convention before a treaty is created. It is interesting to note that the children had been in Pakistan since 2016 and the constitutional petition was filed more than three-and-a-half years after the alleged cause of action arose.
The maxim vagilantibus non dormientbus acquit as subvenit (equity helps the wakeful, not the slumbering) applies in filing a constitutional petition in Pakistan and equity would aid the vigilant and not the indolent. Therefore, the aggrieved person may invoke the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan within “reasonable time” and “reasonable time” has been interpreted as 90 days. While there is no specific limitation period set out in the Limitation Act 1908, the principle of laches applies and the aggrieved person is under a duty to act promptly. However, given the delicate nature of the case before him, Tariq Saleem Sheikh J did not seek to penalise the mother for delay in filing her case.
Overall, it will no doubt be heartening for some parents with children related proceedings in Pakistan that the mere fact that they do not have a formal custody order from a foreign court (in this case South Africa) does not preclude them from asserting their rights in Pakistan. However, as the court explained, complex questions can not be decided without recording evidence and proceedings in the habeas corpus jurisdiction are summary in nature and the High Court cannot conduct detailed inquiry or a trial. From that angle, the Guardian Court is the correct forum and those with children cases in Pakistan can expect to find less well informed judges there than Tariq Saleem Sheikh J.
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