Family briefing: Pakistan will become a signatory to the Hague Convention on International Child Abduction on 1 March 2017 – but it may be much longer before any Convention proceedings can be brought

On 1 March 2017, Pakistan will become the first south Asian country to become a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (known as “the 1980 Hague Convention”). This Convention is the primary international instrument intended to protect children from abduction across international frontiers.

The Convention operates on the basis that a child, in the event of parental dispute, should have their welfare decided by the courts of the country where that child is habitually resident. A child abduction can occur when that child is wrongfully removed or wrongfully retained by a parent outwith their country of habitual residence. The first object of the Convention is clearly stated in article 1(a) as “to secure the prompt return of children wrongfully removed to or retained in any Contracting State”.

In Scotland the court rules state that such proceedings should take no longer than six weeks to conclude, implementing EU legislation. Courts in Scotland at least normally order that cases be dealt with within such a timescale, and continuations which take cases beyond this period are rare.

There are defences available to the respondent parent. They could claim the child was not habitually resident at the time of the wrongful removal or retention. The question of habitual residence is not black and white and has been the subject of judicial rulings up to Supreme Court level in the UK. Other defences include consent, acquiescence (i.e. the petitioner parent has not done anything within a reasonable time frame to secure the child’s return), and the views of the child.

It remains the case that if the petitioner parent can overcome the hurdle of habitual residence and prove they have rights of custody under the country of habitual residence involved, the onus rests largely with the respondent parent in proving their defence. However, defences whereby the respondent seeks to establish grave risk to the child, based on financial circumstances if the child is returned, are becoming more prevalent. Agents acting for petitioners in such cases need to be fully appraised of the availability of benefits/income, schooling and accommodation for the child on return. Immigration issues have also been used in recent defences, and obtaining information on what visas are required then becomes necessary.

Significant step

In many countries around the world, however, the Convention does not apply, and it can prove extremely difficult to secure the return of an abducted child from a non-Convention country. The best advice to clients in such a case is to check with the Foreign & Commonwealth Office what protocols, if any, are in place between the UK and the country concerned. It will often involve raising court proceedings in the country the child has been wrongfully removed to or wrongfully retained in.

Currently if your client’s child is wrongfully removed to or wrongfully retained in Pakistan, a non-1980 Hague signatory, your recourse would be to raise proceedings in Pakistan. While the UK and Pakistan have signed what is known as the “UK-Pakistan Protocol”, which was designed to allow judicial consideration of the return of children to their place of habitual residence, this has not been incorporated into Pakistani law and its effect is dubious.

Pakistan’s step in becoming a signatory to the 1980 Convention must therefore be applauded. This is a big step for the country, signalling its clear intent in the field of international child abduction, and can only be of benefit to the families involved in this area. Further, it is hoped that Pakistan’s neighbours and other south Asian countries may also follow suit.

There is a fly in the ointment, though. The UK requires to accept Pakistan’s accession to the Convention before it can come into force between the UK and Pakistan. This is the case when any country becomes a signatory to the Convention, in relation to any contracting state. However, the timescale for the UK’s acceptance is very unclear. If we look at previous examples, the UK only accepted Singapore and Andorra’s accession in 2016 despite them becoming signatories in 2011. On a similar pattern, the UK’s pending exit from the EU may also effect the accession timescale.

With such a large Pakistani community in the UK it can only be hoped that acceptance of Pakistan’s accession can be processed as quickly as possible so that more abducted children can fall under the Convention’s protection.

The Author
Marisa Cullen, associate, Morton Fraser LLP
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