International child abduction, Pakistan and Brexit

Efficiency of Pakistan’s authority will prove to be key in how successful it is in ensuring the convention works

The wrongful removal or retention of children across borders is a widely recognised global problem. To combat the harmful effects on the children involved, approximately 100 states are signatories to a multilateral treaty known as The Hague Abduction Convention. The purpose of the convention is to establish a procedure for ensuring there is effective access to a wrongfully removed or retained child (under 16 years of age) and to ensure the swift return of the abducted child to the country of his/her habitual residence, ie the prompt return to the country where the child normally lives.

On 22^nd December 2016, Pakistan became a signatory to the Convention and it came in to force on 1^st March 2017. Pakistan was the 96^th country to accede to the Convention and was the first South Asian country to do so — an important milestone for the region. Pakistan joining the Convention was in many ways a natural progression. Arguably, this particular area of the law in Pakistan has been the country’s most outward looking and perhaps the most internationalist. Becoming a convention country is likely to further positively develop the jurisprudence in this area of law. Other areas of law have not built on opportunities provided when Pakistan has executed treaties. A good example of this is the New York Arbitration Convention, which Pakistan passed into domestic law in 2011. Passing this important provision into domestic law has, arguably, not led to any meaningful internationalisation or development of arbitration in Pakistan — which has continued to significantly lag behind other jurisdictions in the region.

For a number of years now, the Pakistani Family Courts have been broadly following the key international principles on the wrongful removal of children to Pakistan — following the broad spirit of the Convention, if not the letter. An example of Pakistan’s willingness to accept international norms on child abduction is evident from the judicial protocol entered into between the UK and Pakistan. In 2003 the judiciaries of Pakistan and England agreed the UK-Pakistan Protocol on Children Matters. The Protocol is a non-binding agreement between the two judiciaries and is, in essence, concerned with establishing shared principles underpinning the need for the swift return of wrongfully removed children.

In contrast to the UK-Pakistan Protocol on Children Matters, the convention sets out a binding set of procedures for what should happen when a child is wrongfully removed or retained and on what the courts can and cannot do when presented with an application for the return of a child. A key element of this process is the creation of a designated central authority in each contracting state. The central authority acts as the first port of call for any request for return under the convention. The role of the central authority is to co-operate with other central authorities and to ensure there is co-operation between the relevant agencies within the country. The duties of the central authority include finding where the child is, preventing further harm to the child, trying to secure the voluntary return of the child, providing general information on their country’s law as it relates to the convention and provide assistance when required, and initiating or facilitating court proceedings to ensure return of the child. The duties of the central authority are therefore reasonably significant. Pakistan’s central authority is the Ministry of Law and Justice. The competency and efficiency of Pakistan’s central authority will prove to be a key factor in how successful Pakistan is in ensuring the convention works as it is designed to. In order for Pakistan’s central authority to discharge its duties under the convention properly, it will need to be adequately staffed and funded. The government should consider either setting up a small department or unit separate from the Ministry of Law. Alternatively, it should ensure that the central authority is able to establish a distinct separate identity from the ministry. Fortunately, Pakistan still has time to ensure it has the capacity to hit the ground running when it needs to.

Somewhat unusually, despite the fact that Pakistan has acceded to the convention, if a child is abducted to Pakistan from the UK, USA or from the vast majority of the other 95 contracting states, that child cannot be the subject of the convention proceedings in Pakistan for the child’s return home. Unlike other treaties, simply signing up to the convention is not enough to trigger the return procedure vis-a-vis other contracting states. Each contracting state has to formally accept Pakistan’s accession before the joint commitments are triggered. So far only Ukraine, New Zealand, Andorra, Brazil, Argentina, Venezuela and Uruguay have accepted Pakistan’s accession. This means only a child abducted to Pakistan from any of these countries will trigger the convention procedures. It will be immediately apparent that the countries with the largest Pakistani diaspora, such as the UK, USA and Canada have not so far accepted Pakistan’s accession.

The UK’s ability in accepting Pakistan’s accession has been largely determined by its membership of the European Union (EU). The UK, as all EU states, was a member of the convention as part of its wider EU commitments. The practical implication of this was that the UK was bound by the approval requirements at the EU level, which prevented individual member states from unilaterally accepting any non-EU country joining the convention. The EU institutional intervention in the acceptance process has meant that it takes years. However, as the UK has now left the EU, as of 31^st January 2020, it is no longer bound by these restrictions and now has the ability to agree to Pakistan’s accession to the convention as quickly as it wants (the UK now being free from the EU slow approval process). A post-Brexit UK government can exercise its new-found sovereignty by ensuring it accepts Pakistan accession to the convention without further delay.

Published in The Express Tribune, February 4^th, 2020.

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