Friday April 12, 2024

The Hague Convention’s implementation

By Muhammad Majid Bashir
December 30, 2017

In November 2016, after the approval of cabinet, Pakistan had decided accede to the Hague Convention on Civil Aspects of Child Abduction. On 22 December 2016, Pakistan deposited its instruments of Accession to Hague Convention and became the 96th contracting State to the Convention. The Convention came into force for Pakistan on 1st March 2017.The Convention provides a structure to support contracting states, by providing a various civil, non-criminal, legal formalities and procedures for the protection and safe return of abducted children when taken abroad by a parent or a custodian from Hague signatory countries.

Pakistan is the 4th Muslim country and 1st South Asian country to sign the Hague Convention of Civil Aspects of International Child Abduction. Signing the Convention had become an absolute need for Pakistan with approximately 7 million Pakistanis living and working overseas.

Even before joining the Hague Club, Pakistan had already been involved and played an active role in all international forums working for the international protection of children and resolution of complex, trans-frontiers family conflicts concerning custody of, or contact with, abducted children, where the 1980 Hague Child Abduction Convention did not apply.

Pakistan in 2013, served as co-chair to the working party on mediation within the ''Malta Process". The Malta Process promotes co-operation with countries on jurisdiction, applicable laws, recognition, enforcement in respect of parental responsibility, measures for the protection of children, and non-contracting states whose legal systems are based on or by Islamic law (Shariah).

Having this association with international community as a working partner, Pakistan had recognised that the 1980 Child Abduction Convention, the 1996 Child Protection Convention and the 2007 Child Support Convention offered a number of important principles expressed in the 1989 United Nations Convention on the Rights of the Child, all in the best interests of children. Pakistan had ratified Hague Convention on 22nd December 2016, with these understandings and a sense of responsibility that these Hague Children's Conventions are designed to for a global reach to be compatible with diverse legal traditions. Pakistan is now a contracting state to two Hague Conventions, the other instrument being the Convention of 15 November 1965 on the Services Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

While ratifying Hague, Pakistan has ensured that it will apply to the whole territory of Pakistan and confirmed in its acceding statement that the Hague Convention is a state specific multi-lateral commitment. Thus, it remains an obligation of the Federal Government to ensure its implementation through appropriate means and vested powers to the central Authority under the statute by virtue of a notification dated 25th September 2017. However in its accession, Pakistan has also made certain reservations in relation to Articles 8, 10, 15 and 16.

Pakistan's current legal system tackles child abduction with provisions from the Pakistan Penal Code, the Code of Criminal Procedure and the Guardian and Wards Act. Article 2 of The Hague Convention required contracting states to make all necessary efforts to implement the Convention in their domestic legal system. Thus the West Pakistan Family Courts Act 1964 (W.P.XXXV of 1964) sub section 3 of section 5 has been amended vide SRO No 980 (1) 2017 to include in its schedule Part 1 No - 6A" Matter pertaining to return of the child under the Hague Convention on Civil Aspects of International Child Abduction,1980". This amendment has automatically extended the jurisdiction of all family courts in Pakistan dealing cases under section 25 of Guardian and Ward Act 1890 to entertain matters pertaining to international child abduction disputes concerning custody, foreign court's orders and judgments from contracting states of Hague Convention.

The Solicitor General's Office in the Ministry of Law, Justice and Human Rights has been designated as the Central Authority as per Article 6 of the Convention. Therefore, Pakistan is now ready to receive and entertain applications from other contracting states with the equipped Secretariat. Pakistan as a Federation and sovereign state shall comply with foreign court orders and directions of all contracting states of the Hague Convention. The Ministry of Law and Justice has further included the Convention in its website with full particulars of the Solicitor General's office. All other related authorities have also included particulars of Pakistan's Central Authority and notified its ratification in their respective databases and websites.

Pakistan is not a union of any state; it is a federal sovereign state which is well equipped to deal with international child abduction according to The Hague Convention standards. In Federal Judicial Academy and in other provincial judicial academies training sessions for family court Judges have been arranged in dealing with international child abduction cases. All relevant stakeholders have received training and whenever or wherever an instance of child abduction takes place; it shall be dealt with according to the Convention's standards and requirements, whether it is concerning access to the child or return of the child to a contracting state. The judiciary, administrative authorities and enforcement agencies, because of dealing with child abduction cases under a bilateral arrangement on child matters through a protocol between UK and Pakistan since 2002, already feels to have acquired a 12 year experience and training in child abduction cases. It is therefore perceived that all connected authorities of the state will promptly respond to the directions of the central authority in future.

Under the notification, the Central Authority shall exercise administrative as well as quasi-judicial powers, with immediate effect, to issue directions to all enforcement agencies (Police, CIA, FIA, District administration, Immigration and Aviation authorities etc), and assist Family Court's throughout Pakistan if an application is received from a contracting states relating to child recovery or any compliance of foreign court order. The Central Authority will automatically under the federation, control the Enforcement Agencies for all purposes relevant to the Convention.

Now, Pakistan is at receiving end to entertain applications from contracting states and to share information with all member states in compliance of Article 6 and Article 7 and other relevant articles of the Hague Convention. The country immediately needs acceptance and recognition from other contracting states of the Convention in order to respond to their queries with these arrangements which can be operational if the international community responds quickly and allows Pakistan to acclimatize to the international standards. However the arrangement done by Pakistan seems to be quite satisfactory considering that it is a third world country.

In a very short span of time Pakistan has managed to make tremendous arrangements and sincerely respond to the international community and its standards to perform the duties and obligations. It is not possible for Pakistan to respond as eagerly as it is looking forward to, and its efforts may go fruitless, if the contracting states do not take quick measures in accepting Pakistan's accession to the Convention, the very purpose of this ratification will be delayed and frustrated for left behind parents. (The writer is A former judge, advocate and founding president of Centre for Rule of Law Islamabad, Pakistan-CROLIP). E-mail: