The Hague Convention: way forward

It has been more than four decades since the international community attempted to address international parental child abduction issue through legal instrument — the Hague Convention (HC) with 101 memberships. Globalisation and increased transnational interaction have given rise to transnational families. The Convention has become an absolute necessity for Pakistan, with around 7.9 million Pakistanis abroad. Pakistan joined the HC in 2016 with 14 member countries accepting the treaty partners including the United States of America. Since then, Pakistan has not been able to return a child to any treaty partner state through administrative and judicial operation under the HC.

The Convention renders to be a useless legal tool in the absence of comprehensive domestic legislation to cater to the contemporary needs of global families under the convention through the action by judiciary and central authority. The unwilling and unable administrative approach of the allied agencies working with the central authority violates the spirit of the Convention which results in inconsistent decisions of the disputes relating to international parental child abduction cases. Amid this situation, Pakistan needs to initiate statutory reforms both at administrative and judicial levels.

The Solicitor General has been designated as the Central Authority under Article 6 of the Convention. The central authority needs autonomy and legislation based on the provisions in line with the Convention for administrative and quasi-judicial control over the NADRA, FIA, Police and the Ministry of Interior and central authorities in the respective provinces to take all appropriate measures to perform its functions. The proposed legislation should espouse the creation of the central authority for performance of duties under the Hague Convention. The central authority can make arrangements for organising or securing effective exercise of rights of access to a child who is in Pakistan and where circumstances so require, to facilitate the provision of legal aid or advice.

The Central authority can place certain provisions in the proposed legislation for seeking help in making travelling documents or any other administrative arrangements to secure the safe return of any such child to the Embassy of the Contracting State in Pakistan and the Central authority of the Contracting State.

The Central authority may also be empowered with power of civil court and magisterial court for other such provisional measures as may be necessary to secure the voluntary return of child with mandatory provision of mediation to remove the difference between the people claiming that child has been wrongfully removed or person opposing the return.

This extraordinary situation of custody dispute requires special The Hague courts in Pakistan to observe comity of courts and primary legal considerations in international child abduction cases under the HC. The courts will adjudicate these cases with unique legal discipline. Enforcement and execution of custody related orders of foreign courts are legal issues that should be dealt in line with the HC.

Pakistan needs to place appropriate comprehensive amendments in Family law and Guardian and Ward act related to jurisdiction of family courts in line with the HC for execution of foreign court decree and judgment and visitation rights related to child custody issued by contracting states or courts of treaty partners by giving effect in Civil Procedure Code and family court laws.

Pre Hague applications and non-convention countries are not discussed in HC. But it does not restrict the courts to which the child is removed, consider the question of habitual residence on merit bearing the welfare of the child, and consider the order of foreign court in line with the Convention. The treaty partner countries can even operate the HC retrospectively if agreed. For these certain unaddressed issues, it is necessary to make rules and facilitate the parents.

‘Parental abduction’ is an emotionally event. The potential for trauma is intensified when one parent resort to the self-help remedy of abduction and takes the child to foreign country and claims priority rights of custody over abducted child. This wrong perception further boosts up the instinct of hegemonic tussle and child starts losing parenthood. No single parent can fulfill this deficiency in child. Hiding the child for a long time, avoiding for visitation rights and frequent interaction with left behind parents expecting the child to only love with parent who holds custody are some abusive acts, which have deep effect on the life of child. The child then loses natural grooming, maturity and can face health issues as well.

The convention provides solutions. It appears that the judiciary of The Hague members has only embraced the spirit and goals of the convention by strictly interpreting its provisions to achieve the prompt return of abducted child and has missed an effective legal device of courts efforts for mediation and reconciliation on visitation rights. Physical presence of both the parents in the grooming of child must be measured the welfare of the child in custody disputes.

The Hague courts must exercise this inherent power to resolve the issue of custody with fair and accessible visitation rights to parent who loses the custody of the child. The trust of both parents can further be strengthened if courts conclude custody cases with conditional visitation rights and make it a part of custody order by giving enforceable and executable effect in case of violation by parent who holds the custody. The Hague courts with these extra efforts can resolve more than 50% cases at very early stages.

Reportedly, Pakistan has not appointed Liaison Judge under the HC. The Liaison Judges communicate with each other on individual cases to ensure that each is aware of court order from the other‘s country. They also monitor and inspect the progress of child custody cases pending in Family courts. There is a need to implement the spirit of the HC in the best interest of the children as they should not suffer because of their parental faults and separation.

Published in The Express Tribune, October 4^th, 2023.

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