Daily Times

Child abduction has three main forms: a stranger removes a child for criminal purposes, a stranger removes a child to bring up that child as that person’s own or a parent removes or retains a child from the other parent’s care, often in the course of or after divorce proceedings. That parent is mostly the father acting without the permission of his wife and the child’s mother, often taking the child to a different country. This is known as international parental abduction and is explained in detail below. Thousands of children around the world every year are abducted from a country of habitual residence to a non-residence country. International child abduction is where a child is taken from one country to another country without the permission of the court or without the consent of the person who has parental responsibility conferred upon them by the court. This issue has never been dealt with by the parliament of Pakistan or human rights groups. However, international child abduction is a serious issue around the globe and countries have signed bilateral and multilateral treaties to recover children taken to non-habitual countries of residence without the permission of a person who has parental responsibility.
The criminal code of procedure in Pakistan is a complete code but contains no section that provide anything on international child abduction, though the code does cover abduction and kidnapping in general. This issue is very common among Pakistani nationals residing abroad and married to foreigners. The issue of international child abduction surfaced in the 1960s and increased in the 1970s. Human rights groups and activists have voiced their concern about international child abduction due to which an awareness process was initiated in the world. Due to immense increases in parental abductions, the US made an attempt to internationalise family laws and therefore enacted the Hague Convention on Civil Aspects and Child Abduction. Child abduction involves both civil and criminal law. However, once a child has been removed via parental abduction it is usually treated as a civil matter. The leading countries of the world are party to this convention but Pakistan has not yet ratified it and there is no law in Pakistan that covers international parental abduction. Other countries that have not ratified it include Japan, Bangladesh and India. The dispute of minor child custody in Pakistan is dealt with under the Guardian and Ward Act 1890, but if a child is born abroad from a foreign mother and his or her father takes them to Pakistan, the mother has no platform to get her child back while staying in her country of habitual residence.
In 1980, the US introduced the Hague Convention and signed it in 1981, whereby when a child’s parents are legally married they have a parental responsibility to raise the child with full responsibility. When the child’s father is not married to the mother the father does not have parental responsibility but he may acquire it through the court or by entering into a formal parental responsibility agreement with the mother of the child. It is the court that settles the child custody issue; the court may issue a decree of the child’s residence that settles the child custody issue. The court can also pass an order against a parent if the parent of a child fails to return to the home country on or after the expiry of the prescribed time period laid out by the court, which may amount to wrongful retention of the child by their parent by virtue of the Hague Convention and Revised Brussels Regulation II. No issue is created if a parent who is the custodian of the child before leaving habitual residence gets permission from the court. Under criminal law, an offence is committed by a person who takes a child out of the country of habitual residence without the consent of the parent who has parental responsibility.
Pakistan once made a serious attempt in 2006 to address this issue though it was not the legislature but the former Chief Justice (CJ) of Pakistan, Iftikhar Mohammad Chaudhry, who took the initiative. There is a mutual protocol in existence between Pakistan and the UK for the protection of children in Pakistan and the UK from harmful removal or retention from one country to another. The former CJ and the lord justice of the UK, in February 2006, decided while attending the Supreme Judicial Conference in Islamabad that to secure the future of the protocol it must be put into law by legislation. It was decided between them that the governments of both countries should formulate a mechanism to make it a part of their domestic family law systems. Since then, no serious efforts have been made to enact legislation relating to international child abduction. Pakistan is a country where there is no mechanism available to deal with parental abduction.
All countries, especially those like Pakistan, should put their signatures to the Hague Convention on the Civil Aspects of International Child Abduction in the larger interest of protecting children, irrespective of political reservations. The Hague Convention Bills 1980, 1996 and 1998 should be given the force of the law. The convention, when in force, will determine which civil law should apply in cases of guardianship, custody and access to children who have links with the jurisdiction of two or more contracting states. It will also determine the applicable court that exercises jurisdiction in such cases. There is a need to modernise the juvenile courts and it must be done according to international standards. A new case management tracking system should be put in place that enables the courts to provide better information in future about the wrongful retention of children in violation of court orders. Information sharing and more consistent practices among signatory countries should be promoted in order to interpret and implement the Hague Convention in its true perspective. Access issues should also be recognised and children must have open and meaningful access to both parents.

The writer is an advocate of the High Court. He can be reached at greenlaw123@hotmail.com