Parental child abductions from the UK to Pakistan remain rife. As the 96th contracting state to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Hague Convention’), Pakistan has finally committed to the international standards of protecting children from the harmful effects of wrongful removal, and ensuring prompt return to the state of their habitual residence.
The Hague Convention came into force in Pakistan in March 2017, thereby enabling family courts to hear and determine applications concerning international child abduction and consider orders/judgments from contracting states.
However, a feature of the Hague Convention is that the accession of a new state only takes effect when a contracting state declares its acceptance of the acceding state. As the UK is yet to declare its acceptance of Pakistan’s accession the Hague Convention remains operationally ineffective between the two states. Accordingly, other ways must be looked at to secure a child’s return.
Application for return
When a child, habitually resident in England and Wales, is abducted to Pakistan, the first step of the parent seeking return should be to obtain an order from the High Court, in the exercise of its inherent jurisdiction, that the child be made a ward of the court and brought back to England and Wales.
Urgent proceedings must then be initiated in Pakistan. The parent seeking return can file a writ of habeas corpus to the High Court under Article 199 of the Constitution read together with section 491 of Pakistan’s Penal Code for the recovery of the child. As a result, the child will be produced before the High Court and should be handed over to the legal guardian. Although personal laws apply under Pakistani law (Islamic principles are only applicable to Muslims), the welfare of the child is the overriding consideration. Generally, Pakistani courts order return where it is clear that the child is ordinarily resident in another jurisdiction. However, in cases where there has been a delay, questions over habitual residence/ordinary residence may arise leading to complications and significant delays if the matter is consequently considered by the family courts under the provisions of the Guardian and Wards Act 1890.
The UK-Pakistan Protocol on Children Matters 2003
The UK-Pakistan Protocol on Children Matters (‘Protocol’) is a judicial understanding. It endeavours to protect children from the harmful effects of wrongful removal or retention and acknowledges that the welfare of a child is best determined by the courts of the country of the child’s habitual/ordinary residence. The Protocol can be a useful tool and is often relied upon in submissions in the Pakistani courts although seldom referred to in judgments. It’s important to note that the Protocol is not binding law in either jurisdiction.
It’s not uncommon for such cases to be appealed to the Supreme Court if a parent seeking return of a child fails to succeed in the High Court. However, this can also often result in delays.
If and when the UK does accept Pakistan’s accession then steps will be taken under the Hague Convention for a return application.