Barriers in handling international parental child abduction in absence of Hague Convention...

Barriers in handling Barriers in handling international parental international parental child abduction in child abduction in absence of Hague absence of Hague ConventionConvention

Zafarullah KhanBarrister-at-Law

IntroductionIntroductionChild Abduction synonymous with international parental kidnapping, child snatching, child stealing, wrongful removal or wrongful retention

Refers to illegal removal of children from their home by an acquaintance or family member to a foreign country

Adverse Impact on Adverse Impact on children and societychildren and societya form of child abuse and an extreme form of parental alienation

children suffer emotionally and physically

Many are told the other parent is dead or has abandoned them

Abducted children are often even given new names to hide their real names

Abductions rob a child of sense of history, intimacy, values and morals, self-awareness, opportunity of knowing one's beginnings and love and contact of extended family

It results in It results in

DepressionLoss of communityLoss of stability, security, and trust

Excessive fearfulnessLoneliness

AngerHelplessnessDisruption in identity formation

Fear of abandonment Reactive attachment disorder

International Family International Family Law?Law?Hague Convention on the Civil

Aspects of International Child Abduction 1980

Convention is to ensure prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence

Primary intention of Convention is to preserve whatever status quo of child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court

Convention applies only to children under age of 16

Mechanisms: central authority

Convention on Rights of Convention on Rights of Child 1989Child 1989

Article 11 :Parties to combat illicit transfer and retention of children

and promote conclusion of bilateral or multilateral agreements

Article 35: States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction, sale or traffic of children for any purpose or in any form."

Alternate mechanismAlternate mechanism

Pakistan has not ratified Hague Convention 1980

K-Pakistan Protocol on Children Matters 2003

Concern for increasing number of cases of wrongful removals or retentions of children

Legal and administrative difficulties in securing return of abducted children/victims

Pakistan Protocol is not being used in Pakistan

Protocol does not have legal effectProtocol Orders are not made in

Pakistan Since Protocol, all returns from

Pakistan to the UK were either voluntary returns or, where ordered by Pakistani courts, without mention of the Protocol (with limited exception of the Misbah Rana case 2007)

More problems in AJKThese shortcomings seriously undermine effectiveness of the Protocol

Reunite International Reunite International Child Abduction Centre Child Abduction Centre report 2009 report 2009 It is difficult to identify the cases

which are Protocol-relateda Protocol Order or a “spirit of

the Protocol” Ordersome other types of Orders, are

not currently forwarded to the Pakistani Liaison Judge

When can I see daughter When can I see daughter again?again?  

WritsWrits

High Court or Court of District or Sessions Judge

Foreign Jurisdiction/travel

High costs prohibitiveTime safety

Guardianship suitsGuardianship suits

Family courtsForeign Jurisdiction; time, travel

High costs prohibitiveTime False casesThreats to life

I can’t see my mom as there I can’t see my mom as there is nois noHague Convention for meHague Convention for me

ThanksThanks