Hague Convention 1980: Post ratification scenario for Pakistan Part I

This accession has open two main challenges for Pakistan. The first one is diplomatic and the second one is administrative

Pakistan has announced solicitor general its central authority in the ministry of law and justice division in Islamabad. Pakistan is a federal state; it may set up multiple authorities in its all provinces including AJK, GB, FATA and PATA agencies

 

Finally on 22 December 2016 Pakistan’s Cabinet acceded to The Hague Convention on the Civil Aspects of Child Abduction 1980 and on 1 March 2017 Pakistan became the 96th signatory to this treaty. Pakistan has been seen in the past as a safe haven where children from Europe, USA and the rest of the world are taken by their parents or relatives without the risk of an immediate court ordered return. In signing the convention and becoming the first South Asian signatory and only the fourth Muslim Country to be a signatory. Pakistan is taking a huge step toward international cooperation on child abduction matters and brings Pakistan into the modern forum for international children disputes and sitting an example to other nations.

This Child Convention is a multilateral treaty developed by the Hague Conference on private international law (HCCH) that provides a quick method to return an internationally abducted child by a parent from member country to another.

Previously, if a child has been abducted from abroad to Pakistan the left behind parent had no option but to initiate legal proceedings in Pakistan, where the law and procedure is very different in nature to Hague Convention, and the process is extremely lengthy. Earlier as non-signatory to The Hague, Pakistan was not bound by the international legal frame work that seeks to protect abducted children from the harmful effects of abduction and retention across international boundaries. Now onwards, Pakistan will commit to this Convention’s protective provision to ensure the speedy return of the adducted child to his place of habitual residence without any legal and customary hitch as the child abduction convention sets out a process to help parents who seek the return of their abducted children. It further demonstrates that The Hague is quite compatible with diverse legal traditions of the world and complements the UN Convention on the Right of the Child.

This accession has open two main challenges for Pakistan. The first one is diplomatic and the second one is administrative.

Now Pakistan has to accelerate diplomatic efforts through our foreign missions with the world community for quick response to this accession. Pakistan accession to The Hague has not only been valued and supported by world community but also expatriate Pakistani Community as well. The UK is home to the largest Pakistani community in Europe .The population of British Pakistanis exceeds 1.17 million but EU member states do not have individual sovereign competence to do so and are not able to accept the accession of a state unless the EU first gives approval, and this will take time. This means it may be a couple of years unless the EU accedes on behalf of member states during which time the UK has to proceed in its cases as if Pakistan was not a Hague signatory.

This is a very alarming situation and regrettable as well .Many lawyers and legal practitioners find this procedural flaw deeply frustrating and note that lack of an agreement could cause suffering to the international children involved in cases linked to Pakistan. The UK would however be able to enter into force with Pakistan once it leaves the EU. There were similar long time delays between Singapore joining The Hague and the EU agreeing to enter into force with the country. The best option in this scenario would be diplomatic best practices. By giving exceptional importance to this issue based on profoundly damaging experience for both children and their families lived in Europe. The EU parliament can be requested to place this treaty on top priority for approval of member states.

Now on the administrative side, Pakistan must set up a system taking into account the procedural requirements of the Convention. There are two main steps that need to be taken; establishing a Central Authority and allied applicable rules and procedures in compliance with the Convention.

The Central Authority is established for the effective implementation of the Convention. The entire framework of the Convention is built upon the co-operation of Central Authorities to secure the return of an abducted child – to send or receive an application – cannot easily be taken without a Central Authority.

Pakistan has announced solicitor general its central authority in the ministry of law and justice division in Islamabad. Pakistan is a federal state; it may set up multiple authorities in its all provinces including AJK, GB, FATA and PATA agencies. Following the 18th amendment family disputes are a provincial subject now, therefore local and regional central authorities are mandatory. However it is vital as per Article 6 of the Convention to set up a central “central authority” to which applications should be addressed for transmission to the appropriate central authority of each province, responsible for administering individual cases under the Hague Convention for that jurisdiction.

 

The writer is an Advocate Supreme Court, Senior Associate ABS & CO, former Additional District and Session Judge and Founding President of Centre for Rule of Law Islamabad-CROLI and can be contacted at: [email protected]



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