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ARTICLE

IFL Voices: The Hague Abduction Convention in Pakistan

Muhammad Majid Bashi

Summary

  • In international child abduction cases where foreign courts issued custody orders based on the best interest of the child, Pakistani courts disallow parental use of shariah law, such as Hizanat. 
  • US and Pakistan shows the International Parental Kidnapping Crime Act, 1993 makes it a federal offense to take a child out of the US without the other parent's consent. 
  • Similarly, Pakistan’s Child Abduction Act, 1980 prohibits the unlawful removal of a child without proper authorization.  
  • Moreover, both countries follow the same principles of the best interest of minors whilst granting custody to a parent.
IFL Voices: The Hague Abduction Convention in Pakistan
Bashir Osman's Photography via Getty Images

International child abduction is regarded as a direct breach of parental custodial rights, whether jointly or unilaterally exercised. The Hague Convention on the Civil Aspects of International Child Abduction, 1980 is a critical tool for ensuring the safe return of children in cases of international parental child abduction between nations that have ratified it. Under the Convention, paramount consideration is given to returning the child to the country of their habitual residence. Nonetheless, such a rule poses challenges in countries where religious or cultural values form part of the legal system. For example, some Islamic Nations have rejected joining the Hague Convention due to the preference of principles of Islamic Shariah Law.

That being said, Pakistan’s accession on 1 July 2020 to the Hague convention as an Islamic State was welcomed and accepted by the United States State Department. Pakistan has also adopted the Hague Convention in its domestic legislation by introducing the Clause 6A, ‘Matter pertaining to return of the child under the Hague Convention on Civil Aspects of International Child Abduction, 1980 in the Part 1 of the First Schedule of the West Pakistan Family Courts Act 1964. This clause automatically extends the jurisdiction of all family courts of Pakistan dealing with matters pertaining to international child abduction.

Recent decisions of Pakistan’s judiciary in Guardian and Wards Application No. 20 of 2022 titled Javeria Shahani vs Mohammad Faraaz Shaikh and C.P. No. S-678 of 2022 titled Mohammad Faraaz Shaikh vs Ms. Javeria Shahani & others reflect an active departure from traditional shariah principles towards adoption and priority of a "best interests of the child" doctrine through judicial discretion. Generally, family laws in Pakistan give preference to the mother to maintain custody over the young children due to the principal of Hizanat, and for the children to be raised in Muslim environments. However, the Sindh High Court, Karachi in the case of Mohammad Faraaz Shaikh vs Ms. Javeria Shahani & others, refused to give the mother the preferential right of Hizanat and implemented the US Court’s orders. The High Court observed that under the Hague Convention, the US was the designated country to decide the custody of the minor child being the place of habitual residence of the minor.

Similarly, in another landmark case of Misbah Rana vs Molly Campbell, decided by Justice Mian Saqib Nisar J on 29 November 2006, the principal of "judicial comity" and "habitual residence" was upheld keeping in view the best interest of the child. The Honorable Court held, “the court would not like to interfere in the jurisdiction of the Scottish Court regarding the determination of the issue of the welfare. Let the respondent, raise these pleas before the Court in Scotland”.

These cases indicate that in international child abduction cases where foreign courts have already issued orders in regards to the custody of the minor based on the best interest of the minor, Pakistani courts do not allow a parent to hide behind principles of shariah law, such as Hizanat. One reasonable explanation behind this progressive realization is that the courts of Pakistan have recognized the need to introduce flexibility in international child abduction matters and trust foreign courts to decide the custody of the minor on the principle of the best interest of the minor. This trust is based on the common core principles followed by both US and Pakistan. For instance, comparison of laws of US and Pakistan shows the International Parental Kidnapping Crime Act, 1993 makes it a federal offense to take a child out of the US without the other parent's consent. Similarly, Pakistan’s Child Abduction Act, 1980 prohibits the unlawful removal of a child without proper authorization. Moreover, both countries follow the same principles of the best interest of minors whilst granting custody to a parent.

This advancement implies that Pakistan jurisprudence has taken a more holistic approach regarding international child abduction laws under the Hague Convention. The Honorable High Courts have also involved all related agencies including FIA, Child protection bureau and concerned police departments to perform their specific roles in the safe return of the children to their country of habitual residence. Through this trust, US and Pakistan have a chance to enhance their shared commitment to protecting children and prioritizing the welfare of the minors.

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