Pakistan is a frequent country CARI – Child Abduction Recovery International operate in to recover abducted children after parents struggle to relieve any help. Some information below; Make your own opinion of this.
On 1 March 2017, the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction entered into force for Pakistan. After having deposited its instrument of accession to the Convention on 22 December 2016, Pakistan became the 96th Contracting State to the instrument.
While not a Member State of the Hague Conference, Pakistan is now a Contracting Party to two Hague Conventions, the other instrument being the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
This comes after news that there were 40 child abduction cases between the UK and Pakistan in 2012. CARI – Child Abduction Recovery International believes this is a good stop forward for Pakistan but we know for sure they will not adhere to the Hague Convention as most countries do also.
Pakistan also has a bilateral arrangement with the UK. This bilateral arrangement makes provisions for judicial co-operation between the two countries but the presumption that a child should be returned to the UK is not as strong.
In 2010, for those children abducted from the UK to a Non Hague Convention country, the most frequent destinations were Pakistan, India, Egypt and Thailand.
For children brought from Non Hague Convention countries to the UK, in 2010 the most frequent country of origin was Pakistan, followed by Japan and Dubai.
Considerations under Pakistani Law
In Pakistani law, various provisions can be used regarding a case of trans-national parental abduction introduced by a foreigner parent. For example,
• the case may be lodged under Section 491 of the Criminal Procedure Code (CrPC) for the production of the child (Power to issue directions of the nature of habeas corpus) and
• under Sections 7 or 25 of the Guardian and Wards Act for the custody of the child (respectively, the Power of the Court to make an order as to guardianship and Title of guardian to custody of ward).
Such a case is usually considered as a matter of custody and handled by Pakistani family/civil courts. If a Pakistani parent disobeys the court’s orders issued under Section 491 of the CrPC or Sections 7 and 25 of the Guardian and Wards Act, there is a chance that the court may order the arrest and detention of that parent. However, there are no reported cases in which courts have sent parents to jail.
Similarly, according to the PPC, child abductions by a non-parent are of a criminal nature and tried before the criminal court. Removal of a child by a parent is not criminal and is dealt with by the family or civil court. Consequently, trans-national movement of a child without the consent of the foreign parent would not lead to the detention of the alleged abductor, nor would that parent be punished under any section of the PPC for bringing the child to Pakistan.
Even the superior courts of Pakistan do not recognize TNPCA as an offence. In 2001, the High Court of Lahore, decided in a judgment that “Father of a child is always a natural guardian along with the mother. He can never be ascribed or attributed the offence of kidnapping of his own child… The only fetter placed upon the right of a father to the custody of the child is that when he takes the child from the custody of his wife for a purpose recognized in law as immoral or unlawful, in such a circumstance removal of the child, would amount to an offence”.
If it is established that the father or the mother removed the child for mala-fide intentions, then he/she is a criminal. Still, the parents are expected to produce the child in court and to hand him/her over to the parent to whom the court has temporarily granted custody. Violation of the court’s orders would then lead to the detention or punishment of the offending parent, even though that parent may be the primary carer, a situation that is arguably not in the child’s best interests.
Cases of TNPCA heard in Pakistan
Pakistani parents who abduct their child (usually the fathers) often base their decision on moral grounds, as they fear that the religion of the mother and the immorality of western cultures may taint their children and render them immoral. Such claims or arguments based on religion or culture have been rejected by Pakistani courts.
CARI – Child Abduction Recovery International has found in the recent past, two French mothers (Ingrid Brandun Berger in 2012 and Peggy Collins in 2009) were allowed to take their children back to France after a struggle in the Pakistani higher courts. Their battle to secure the custody of their children was an onerous task but a successful one.
In Berger’s case, her child’s father argued that he brought his daughter to Pakistan and kept her there because of the Muslim faith they share. He claimed that he was her rightful custodian, based on his religious beliefs and his dislike of western culture. The girl’s grandfather also wished not to see his granddaughter ‘growing up as an infidel’ in a western liberal culture.
The case of Peggy Collins was similar – the father’s grounds for retaining his nine-year-old son in Pakistan were also based on religious and moral concerns. Mrs Collins’ ex-husband referred to several judgements given by the Supreme Court, the Mohammadan Law and Hidayah, and argued that the custody of the child should not be given to an alienated, non-Muslim mother who would encourage him to deviate from his father’s religion.
Such arguments, based on the mother’s religion or culture, were not taken into account by the Pakistani courts. In both cases, the judges made their decision according to logic, justice, law and the child’s best interests. In Berger’s case especially, the court observed that the father did not give any consideration to the mother’s religion when he married her. His ex-wife’s religion, culture or nationality obviously didn’t matter when he fell in love and married her. According to the court, accepting arguments such as faith, nationality and culture would have been adverse to justice, equity and good conscience. In both cases, the child’s best interest was the courts’ primary consideration of for granting custody of these minors to their mothers. Moreover, the Pakistani judges respected foreign courts’ orders. Those stated that the fathers had broken some foreign laws, resulting in deprivation of education and proper welfare for their children.
In another unique case, Roshni Desai – an Indian lady from Canada – came to reclaim custody of her three-and-half-year-old son through the High Court of Lahore. Like Collins and Berger, Desai had filed an habeas corpus application under Section 491 of the CrPC. She gave birth to a son who was illegally removed from Canada by his father, after he broke up with Desai. The father, Jahanzeb Niazi, argued that, according to the Islamic laws, a Muslim child could not be entrusted to a non-Muslim mother. Since the child was born out of wedlock, the court drew attention to the facts that, not only was it difficult to determine which parent should be granted custody of the child, but that living in Pakistani culture would also prove troublesome for the child, due to his illegitimate status. Therefore, the court temporarily granted custody of the child to Desai and asked both parents to reach a mutual agreement.
During the next hearing, the court allowed Desai to take the child back to Canada and stated that Islamic law does not allow a father to keep custody of his illegitimate child. In such situations, the custody can only be given to the mother. Desai through her advocate said in the court that she believed in the court and Pakistani laws and considered that the court would decide the case on merit. Therefore, she did not need to settle the case out of the court. The court further observed that “Under Islamic laws, the bond between a mother and her illegitimate child is stronger than the bond between this child and his/her father. And a father cannot become guardian of his illegitimate child. (…) Roshni [Desai] is free to go wherever she wants to.”
The judge ruled that, as a single mother, Desai had the exclusive right of custody.
Pakistan and the United Kingdom
CARI – Child Abduction Recovery International knows that parental child abduction is a serious dilemma between the United Kingdom and Pakistan because of the high percentage of marriages between Pakistani and British people. In January 2003, before Pakistan was a party to the Hague Conventions, judges in the Higher Courts of Pakistan and the United Kingdom signed the UK-Pakistan protocol, which enables them to deal with parental child abduction cases. The purpose was to ensure abducted children’s safe return to their habitual country. As set out in the Hague Convention, the case or residence (custody) of the child is to be decided by a court of the country in which the child is a habitual resident, that court having jurisdiction for the child.
The UK-Pakistan Protocol has been enforced by Pakistani courts and mothers are allowed to take their children back to the United Kingdom. Lately, the High Court of Azad Kashmir- Pakistan had a child recovered from the custody of the father and handed over to Najma Begum, following the application of this British mother. The Court stated that, in light of the Protocol, the relevant court in the United Kingdom would have to decide about the future and custody of the child. The mother of the child had filed an habeas corpus application with the High Court under Section 491 of the CrPC.
In 2006, the prominent case of Misbah Rana – a twelve-year-old, Scottish-Pakistani girl – attracted considerable media attention. Misbah’s mother, Louise Campbell, approached the High Court of Lahore and filed a lawsuit against her ex-husband and Misbha’s elder sister, both of whom had illegally taken Misbah to Pakistan. She claimed that Misbah should be sent back to Scotland and the custody matter decided by the relevant court in Scotland, as per the Protocol. Louise Rana was worried that Misbah would be forced to marry at her early age, whereas Misbah consistently denied, through a news conference, that her Pakistani family was trying to force her into such a union. After listening to both parties’ arguments, the Court ordered that Misbah should be handed over to the British High Commission within seven days, so that the case could be decided as per the Protocol and the custody heard in Scotland’s relevant court. Upon hearing that she would be handed over to her mother, Misbah protested against the Court’s decision and expressed the desire not to go back to Scotland. Owing to Misbah’s wish to stay with her father, both parties decided to settle the issue outside the court. The court allowed Misbah to stay with her father and granted access to her mother, so that she could visit her daughter under certain measures.
In Misbah’s case, many people still consider that the High Court violated the UK-Pakistan Protocol and that the child’s custody was decided by mutual agreement rather than the legal system created under the Protocol against the TNPCA. On the other side, the court respected Misbah’s point of view, which is central in the field of child rights as envisaged in Article 9 (2) of the UNCRC: “In any proceedings (…), all interested parties shall be given an opportunity to participate in the proceedings and make their views known.” Article 12 of the UNCRC also states that the child’s point of view should be taken into consideration by the courts.
Click link to go to Uk-Pakistan Protocol make your own judgement!
Our opinion from 18 years experience in Child Abduction is that no child will be returned through the Hague Convention from Pakistan.
CARI – Child Abduction Recovery International are here to help you!