The urgency to adopt the Hague Convention
Global integration has increased interactions among citizens of different countries, resulting in a rise in cross –cultural unions or marriages abroad. Often happens, when the parents separate or initiate divorce proceedings the one parent removes or retains a child from other parents’ care and settles down in another country due to fear of losing the custody of the child.
This international phenomenon of child abduction creates a jurisdictional conflict of law in family courts of both countries. When left –behind a parent takes custody order from the court whereas the abducted child ordinarily or habitually resides with the other parent and applies in other family court for execution of this order. The left behind parent faces unfamiliar foreign legal, cultural and religious barriers if the foreign country is not in international child abduction legal framework, such as The Hague Convention and the UN Convention on the Rights of the Child.
With the increasing cases of children being abducted from across the borders of Pakistan and being brought to the country, it is becoming essential for Pakistan to latch onto The Hague Convention. There are over 6.3 million Pakistanis residing overseas; with 52,668 in Germany, 1,206,297 in USA, and 35000 in Australia. In UK alone a total of 1,200,000 Pakistanis reside, consequently over 11 cases of parental child abduction were reported between Pakistan and the UK in 2008, over 24 cases from April 2009 to March 2010, and 55 in 2011 and the number of such cases is reportedly increasing day by day.
In these cases, Pakistani legislations could not meet the international procedural standards on conflict of laws and transnational jurisdiction issues inherent in international child abduction cases. Therefore, multiple legal interpretations like nationality, parallel jurisdictions, habitual residence, welfare of the minor and interests of the child remained unattended. Since Pakistan is not signatory to The Hague Convention, the foreign court order in favor of left –behind parent is useless because Pakistani courts decide the child’s case in the light of domestic laws. The only barely viable legal remedy available to left –behind parent is to file application in family court under section 25 of Guardian and Ward Act 1890 for custody of abducted child and to file habeas corpus petitions to High Court under article 199 of the constitution or under section 491 of the Code of Criminal Procedure, 1898 for the recovery of abducted child. Therefore, our legal frame work is clearly inadequate and ineffective to deal with cases of child abduction, which requires quick and speedy judicial determination to swiftly mitigate the ill effect of abduction.
It should be noted that the procedure of The Hague Convention operates on a first come, first serve basis, the advantage thus lying with the parent party who first brings their claim within the jurisdiction of the Convention. This further extends the need to adopt the Convention’s procedure to enable the parents involved to gain the described advantage in Pakistan as well.
These cases were perhaps made easier to conclude due to the UK-Pakistan Judicial Protocol on Children Matters, adopted in 2003, which itself mirrored on the principles of The Hague Convention, yet still lacked a sufficient central authority, further signifying the need for Pakistan to adopt The Hague Convention. Pakistan’s turmoil in deciding whether to adopt The Hague Convention or not has led to its skeptic application by districts courts which sometimes give relevance to its principles, other times defer them. By signing Hague convention, cases involving Pakistani left-behind parents and children abducted from Pakistan would be determined more consistently, expeditiously and effectively by the other Hague Convention countries.
In modern regimes, a country’s credibility is gauged and weighed on the foundation of its compliance with international conventions and treaties. Pakistan thus suffers when many foreign parents resist approaching domestic courts. Moreover, the country’s domestic laws do not seem to cater to the distinctive facts of trans-national child abduction cases by magnifying the interests of the child, and the courts raising questions of jurisdiction diminish the affectivity of family laws.
While holding an immense number of nationals overseas, strengthening each day, the international community expects Pakistan to honor and fulfill its international commitments or obligations to sign the Hague Convention, not only for the better future of the children suffering along with their families due to the unavailability of an appropriate judicial forum, but also to be able to deal with such matters with complete knowledge and sufficient instruments to assure the foreign parents left behind that the domestic courts are more than capable of deciding the fate of their abducted child appropriately regardless of race, color, religion or nationality.
Pakistan being a commonwealth country and in its rules of business Prime minister and his cabinet can ratify or become state party to any international convention or treaties. Such an action is upon the sole discretion of the Prime Minister or the Head of the Government. Subsequently as a procedural requirement Pakistan does not require a separate legislation under the Guardian and Wards Act, because it is a federal statute , and not a provincial subject under 18th amendment ,rather it must be mentioned on the footnote of section 25 of the Act that Pakistan is signatory to the Hague Convention to indicate the judiciary and legal fraternity to refer to the Convention’s rules and procedures in case a foreign judgment on Child Abduction conflicts; or there are foreign parents seeking custody of the child on the basis of a foreign nation, in Pakistan. With the membership of The Hague Convention, Pakistan will not only extend its global regime of commitments with international community but also provide parallel corridor to Pakistani citizens to avail jurisdictions of other countries based on this principle of Reciprocity. In case Pakistan has some reservations on Hague Convention, by adopting best norms and practice of international Convention/treaties ratification procedure. The government may subject to insertion of these reservations in the Hague Convention, ratify this Convention and the part of reservations will not be applicable on Pakistan later as signatory state.