Pakistan and the Hague Convention 1980

The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction also known as the Hague Convention came into force in 1983. To date, there are 89 contracting countries which are part of the Convention. Pakistan has neither singed nor ratified it.

The Hague Convention applies to children below 16 years of age and offers protection to children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The treaty intends to ensure the safer homecoming of an abducted (illegally removed) child to his/her home country (habitual residence) where he/she was born or of which he/she is a national, so that the child’s residence (legal custody) and contact (access) could be decided by the court of the country to which the child belongs.

According to the Hague Convention and its interpretations, removal of a child from one country to another country is considered a crime of abduction or kidnapping because it is like any other kind of abduction, is detrimental to the child’ lives, wellbeing and best interests, as he/she may suffer situations such as identity change, health neglect, frequent travel and movement, loss of or unstable education, unstable living conditions, psychological or, emotional distress and cultural shock- a few to mention. This also deprives another legal parent from his/her child. Application of the Convention against unlawful or wrongful removal of the child by parents will minimize the negative psychological effects of abduction by quickly returning the child and allowing the culture with which the child is most familiar to determine decisions of custody and, therefore, the child’s future.

On the subject of child abduction, Article 35 of the United Nations Convention on the Rights of the Child (UNCRC) asks States to “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form”.

The issue of trans-national parental child abduction is not only in Pakistan but across the globe mainly in Muslim countries. In Pakistan’s case, increasing migration of Muslim Pakistanis to the West led to multi-cultural and multi-national marriages and, simultaneously, divorce rates of such marriages increased. Separation between couples led to an increase in trans-national parental child abduction.

In Pakistan, if a legal parent are bringing in and taking their children out of country (Pakistan) without the consent of other legal parent is a matter of custody if the intention is not mala-fide as given in Sections from 359 to 374 of the Pakistan Penal Code. But if a Pakistani parent disobeys the Pakistani court’s orders issued under Section 491 of the CrPC or Sections 7 and 25 of the Guardian and Wards Act, then there are chances that the respective court may order for the arrest and detention of that parent.

In Pakistan, there are no basic statistics of such trans-national parental child abduction/custody except for the data between Pakistan and the UK. There were 11 cases of parental child abduction reported between Pakistan and the UK in 2008, 24 cases from April 2009 to March 2010, and 55 cases in 2011. Some individual cases of parental child abduction were also reported between France and Pakistan and between Canada and Pakistan.

Pakistani parents (usually the fathers) who bring their children to Pakistan often base their decision on moral grounds, as they fear that the religion of the mother and the immorality of western cultures may taint their children and render them immoral. Such claims or arguments based on religion or culture have been rejected by Pakistani courts.

In the recent past, two French mothers (Ingrid Brandun Berger in 2012 and Peggy Collins in 2009) were allowed to take their children back to France after a struggle in Pakistani higher courts. Their battle to secure the custody of their children was an onerous task but a successful one. In Berger’s case, her child’s father argued that he brought his daughter to Pakistan and kept her there because of the Muslim faith they share. He claimed that he was her rightful custodian, based on his religious beliefs and his dislike of western culture. The girl’s grandfather also wished not to see his granddaughter ‘growing up as an infidel’ in a western liberal culture.

In Peggy Collins case, the father’s grounds for retaining his nine-year-old son in Pakistan were also based on religious and moral concerns and argued that the custody of the child should not be given to an alienated, non-Muslim mother who would encourage him to deviate from his father’s religion.

Such arguments, based on the mother’s religion or culture, were not taken into account by the Pakistani courts. In both cases, the judges made their decision according to logic, justice, law and the welfare of the child. In Berger’s case especially, the court observed that the father did not give any consideration to the mother’s religion when he married her. His ex-wife’s religion, culture or nationality obviously did not matter when he fell in love and married her. According to the court, accepting arguments such as faith, nationality and culture would have been adverse to justice, equity and good conscience. In both cases, the welfare of child was the courts’ primary consideration for granting custody of these minors to their mothers. Moreover, the Pakistani judges respected foreign courts’ orders. Those stated that the fathers had broken some foreign laws, resulting in deprivation of education and proper welfare for their children.

Protocol between High Courts of Pakistan and the United Kingdom:
In January 2003, the Higher Courts of Pakistan and the United Kingdom signed the UK-Pakistan protocol, which enables them to deal with parental child abduction cases. The purpose was to ensure abducted children’s safe return to their habitual country. The UK-Pakistan Protocol has been enforced by Pakistani courts and mothers are allowed to take their children back to the UK.

The ISJ urges the government of Pakistan to sign and ratify the Hague Convention 1980 because:

1) Pakistani courts have judiciously decided cases and extended complete support to foreign mothers as per the law and justice. The verdicts by Pakistani Courts are not merely influenced by the parents’ culture and religion, but that they are carefully crafted and take into account the foundations of collective logic and wisdom and human values, as well as the law and child welfare.

2) It can also be assessed that many foreigner parents – except for the French and the British – do not approach Pakistani courts, perhaps due to a lack of knowledge about the relevant legal process in Pakistan. However, the problem of trans-national parental child abduction prevails across the world and millions of Pakistanis are settled in countries all over the world.

3) As a matter of fact, Pakistani courts already judiciously follow the principles enforced by the Hague Convention, seeing as they provide legal and social justice to foreigner mothers and give their complete consideration to the child welfare and best interests. It is therefore high time for Pakistan to become a party to the Hague Convention 1980 and to ensure a system protecting children from trans-national parental abduction and the related abuse. For more details……….