The Hague Convention: need of the hour

September 9, 2016


Throughout the world, the ‘best interests of the child’ is the gold standard by which courts make determinations on custody, visitation and relocation.

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A surge in transnational marriages has led to a corresponding surge in cases of international child abduction. In these cases one parent, unhappy with a court’s custody order, flees to another country with the child, and either attempts to have local courts issue a new custody order or simply goes into hiding with the child. There are never any winners in these heartbreaking cases; the children are denied the love and affection of both parents, and the parents spend years embroiled in venomous court battles.

To address the menace of child abduction, the international community formulated what is known as The Hague Convention on the Civil Aspects of International Child Abduction in 1980. Through this instrument, member states agree to uphold existing custody orders from other jurisdictions, and to return children wrongfully removed from one country to another. The Hague Convention does recognise that in some cases a parent might be fleeing an abusive environment, resorting to abduction in an attempt to protect their child; local courts are given the authority to make appropriate determinations in these special cases. In a nutshell, The Hague Convention provides a reasonable remedy for the bad behaviour of parents engaging in the act of international child abduction.

International parental kidnapping cases have been quite prominent in media over the years, and protecting children is one benefit for Pakistan becoming a member of The Hague Convention. There is, however, another benefit that goes largely unnoticed by the authorities and media: by signing The Hague Convention, Pakistan will give courts throughout the world the confidence to allow law-abiding parents to relocate to Pakistan with
their children.

Throughout the world, the “best interests of the child” is the gold standard by which courts make determinations on custody, visitation and relocation. Given the trend of international marriages, courts have recognised that in many cases custodial parents may wish to move back to their home countries where they have family support, career opportunities, cultural ties, and facilities by which they can provide better lives for their children. However, before allowing an international relocation by one parent, the courts must be confident that the other parent will not be denied access to the children. The Hague Convention provides courts with this confidence.

pakistan Child Abduction

An alarming number of Pakistanis, mostly women, presently living abroad are denied the ability to move back home with their children because Pakistan is not a signatory to The Hague Convention. For the most part, Pakistani women move to foreign countries due to arranged marriages. When their marriages fall apart, these women who have no employable skills and limited finances find themselves abandoned by their spouses far from their families and homeland. To make matters worse, foreign courts will not allow them to move their children to Pakistan, leaving them with no choice but to live off the charity of others in foreign countries. The plight of these desperate Pakistani women and their children will undoubtedly improve when Pakistan becomes a member of The Hague Convention on the Civil Aspects of International Child Abduction.

I hope Prime Minister Nawaz Sharif and Advisor to Prime Minister on Foreign Affairs Sartaj Aziz take notice of such situation, and initiate the much needed step of becoming the member of The Hague Convention on the Civil Aspects of International Child Abduction. It is responsibility of the state to ensure justice for its citizens not only in the boundaries of the state and all over the world.

The Hague Convention does not alter any substantive rights. The Convention requires that a court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member country rather than specifically to the left-behind parent.

Until March this year, more than 94 countries including, United States, China, Germany, France, Canada and Australia are party to the convention, and even India has been the signatory of Convention since 2008.

Mr Prime Minister, when all our major neighbours and important countries of the world are the signatories to this important convention, why not Pakistan. Isn’t this a lack of interest in the welfare of overseas Pakistanis who send millions of dollars to Pakistan every year?

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Court ruling on estranged lesbian couple’s dispute ‘has wider implications’

February 4, 2016

Source: Daily mail

Legal experts say a Supreme Court ruling on an estranged lesbian couple’s dispute over their seven-year-old daughter will have implications for children taken abroad during parental tug-of-love battles.

pakistan Child Abduction

Supreme Court justices heard that one woman was the youngster’s biological mother and sole legal parent and the second woman considered herself a de facto parent.

Their relationship broke down in 2011, more than three years after the girl was conceived by IVF treatment and born.

The girl had been taken to Pakistan by her biological mother in early 2014 and the second woman launched legal action – asking judges to order the youngster’s return to the UK.

A High Court judge and Court of Appeal judges concluded they did not have the jurisdiction to make such an order because the girl was not habitually resident in the UK when legal proceedings were launched.

But five Supreme Court justices have overturned those decisions by a three-two majority.

They ruled on Wednesday that the girl had been habitually resident in the UK and allowed an appeal by the second woman.

The case will now return to the High Court where a judge will make decisions on what happens next.

Supreme Court justices heard that a court in Pakistan would be unlikely to consider the case “because of the strength there of negative attitudes towards that sort of adult relationship”.

Lawyers raised fears that the little girl would be in a legal limbo with no judge able to decide what was in her best interests.

A lawyer representing the second woman said the Supreme Court had clarified the law relating to a child’s “habitual residence”.

Maria Wright, who works for Freemans Solicitors, added: “The consequence of the Supreme Court’s decision is that the English court can properly consider what is in (the child’s) best interests and, if appropriate, order contact or (the child’s) return to England.”

Other specialist lawyers echoed her views.

“The decision is significant for a number of reasons. Quite apart from being the first international abduction case involving the child of a same sex couple, the ruling will prevent children being in a legal limbo when they are taken abroad by one of the parents,” said Peter Morris, a family lawyer at law firm Irwin Mitchell.

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“This makes it unlikely that one parent can act unilaterally and bring about an immediate change to a child’s habitual residence and avoid proceedings by abducting them.

“At a time when the number of international relationships is increasing, the decision is to be welcomed.”

Joanna Farrands, a partner at law firm Barlow Robbins, added: “This is a fantastic outcome showing that the interests of the child must be the focus in international parental disputes.

“This outcome is a positive development for children who have lived in multiple countries. It shows that if an abducting parent unilaterally removes a child from the UK they will not immediately lose their residence in England and Wales. ”

She added: “Pakistan appears to consider homosexuality as ‘abnormal sexual behaviour’, therefore the only recourse for the remaining parent was through the jurisdiction of England and Wales.”

The second woman said she was “relieved”.

“It has been a very long process to get to this result, and I am delighted that someone will now be able to look at what is actually in (the child’s) best interests,” she added.

“I very much hope that (the child) and I will now be able to see each other again.”

Judges heard that the second woman was a British woman of Indian ethnicity – and the girl’s biological mother a British woman of Pakistani ethnicity.

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