The treaty partnership is an opportunity to help citizens of both the countries legally and administratively
The United States of America has accepted Pakistan’s accession to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The convention came into force between the two countries from October 1 this year.
The treaty partnership is important amid reports that international abductions of children between the US and Pakistan are increasing. The treaty agreement will effectively combat this menace. The convention will empower courts in both countries to determine only the rights under the convention and not the merits of any underlying child custody claims.
Pakistan has signed and ratified The Hague Convention on the Civil Aspects of International Child Abduction, which has led to a significant legal development regarding child custody matters in Pakistan. In this regard, the country has put in place certain procedural mechanisms to ensure that the intricate issues pertaining to child abduction cases are resolved expeditiously and in accordance with the Hague Convention.
It is imperative to note that Pakistan’s efforts have been widely commended. In particular, the British High Commission and the US embassy have highlighted the instrumental role played by Pakistan in the implementation of the Hague Convention.
Article 6 of the Hague Convention provides for the designation of a Central Authority to discharge the duties which are imposed by the convention upon such authorities. Despite being an underdeveloped country with meager economic resources, Pakistan has taken concrete steps to devise a coherent legal framework to issue such regulations as may be necessary to carry out its functions for the implementation of the Hague Convention.
Pakistan’s has designated the Solicitor General’s Office at the Ministry of Law, Justice and Human Rights as its central authority. Furthermore, it has set up provincial authorities in the Punjab, Sindh, Khyber Pakhtunkhwa, Balochistan, Azad Jammu and Kashmir and Gilgit-Baltistan along with appropriate government agencies to support these authorities.
This treaty partnership under Hague Convention will foster cooperation to resolve international family disputes involving children under internationally recognized uniform child custody jurisdiction and enforcement between the US and Pakistan.
Although the provisions of the convention are designed to be essentially self-executing, what brings the convention into force within the domestic legal order of a given state party will depend on that state’s legal and constitutional requirement. Pakistan has made all necessary arrangements in compliance with this convention.
Before offering treaty partnership, the US government had sent two high level delegations comprising lawyers, State Department officials and Hague Convention experts to Pakistan for assessing the administrative and judicial compliance of the convention. The US embassy in Islamabad had also arranged many seminars and workshops across the country for lawyers, judges and the government officials and other stakeholders for evaluation and dispensation of their knowledge in child custody matters.
This treaty partnership is a proof that the US has shown trust in the arrangements of Pakistan for this Convention. The paramount consideration of the Hague Convention is to protect children.
The paramount consideration of the Hague Convention is to protect children internationally from the harmful effects of wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence and rights of access.
The provision of Article 11 of the Hague Convention emphasised on judicial and administrative authority to act expeditiously in proceedings for the return of children. The member states were not advised to have a specific judicial and administrative structure for the Hague Convention. Rather, the convention demands that all contracting states devise new mechanisms and improvise judicial and administrative orders for the safe return of the children.
In this respect, the judiciary is at the front line to act; our judicial decisions on international child abduction cases meet the international standards and reflect the best practices of international comity.
The Hague Convention can produce good results in Pakistan if we concentrate on the judicial side. Our legal system facilitates the foreign courts’ judgments and orders under Guardian and Ward Act, Code of Civil Procedure, Pakistan Penal Code and Criminal Procedure Code and the Constitution of Pakistan.
There are certain provisions of laws which can resolve the disputes of the parents out of the court through mediation by reaching compromise and settlement and through courts by giving statement or undertaking before the judges. The court can make these a part of the proceedings and later enforce it as court judgment.
In the preliminary phase of litigation when a child is abducted, court orders are to be the first documents in hand with the left behind parent. Child custody is the most difficult litigation as the parents are emotionally involved. In many cases the parents are prepared neither to share the physical custody nor concede visitation rights to each other. In this situation, compromises, settlement deeds, mediation, arbitration and reconciliation options are effective and useful remedies.
The treaty partnership is an opportunity to help citizens of both the countries legally and administratively. The success of this treaty partnership depends on regular proximity talks between the judiciaries and central authorizes of the two countries. This approach will develop better understanding and smooth working between the countries to timely address the emerging issues related to return of the children to their habitual residence.
The United States should adopt benefit sharing approach with Pakistan to make this treaty partnership a great success. On the other hand, the US Government has to relax its visa policy for parents, if the American courts are inviting them to appear for the court hearing. A gray area in the Hague Convention is the issuance of visa and boarding and lodging facilities for a parent asked to join proceedings in the other contracting state when child is returned to his habitual residence by a court order.
The foreign should accommodate the parent in its mirror order or interim order. These foreign court findings will give courage and confidence to the parents when they return the child to the local Central Authorities with the understanding that they are being provided equal opportunity to join the foreign court proceedings on merits.
The writer is a former judge and founding president of Centre for Rule of Law-Pakistan. He can be reached at [email protected]