ADJECTIVE LAW UNDERMINING THE
SUBSTANTIVE LAW
(The Hague Convention on the Child Abduction)
By
ATAULLAH
KHAN MAHMOOD[1] & IJAZ
ALI CHISHTI[2]
The convention,
namely, "Convention on the Civil Aspect of international Child
Abduction" falls under the subject of private international law which
deals with the disputes of individuals residing in the jurisdiction of various
countries. The set purpose of the Convention is to protect children
internationally from the harmful effects of their wrongful removal or retention
and to establish procedure to ensure their prompt return to the state of their
habitual residence as well as to secure protection of the right of access.[3]
The main thrust of this Convention is to provide procedure designed to bring
about the prompt return of the cross-border removed or retained children to the
countries of their habitual residence,[4]
i.e., the state/country in which the child was habitually resident immediately
before his removal or retention.[5]
The Court has
been obligated to order the return of the child forthwith if the period of his
wrongful removal or retention is less than one year.[6] However,
return may be refused if it is not be permitted by the fundamental principles
of the requested state relating to the protection of human rights and
fundamental freedoms.[7] The
Convention requires that the return order is not the determination of custody
of the child.[8] It is
simply an order to return the child and the Court has further been restrained
from determining the case on the merits of the custody issue.[9]
Thus, it deals with the adjective law only.
The proceedings on the Convention concluded
Another unjust
and unfair proposition is that the convention does not have trust on the local Courts
and ousts their jurisdiction as for as consideration on the merits of the case
and welfare of the child is concerned.
Another
Convention is on the rights of child which is universally accepted human rights
instrument in the history as it has been ratified by 191 Nations, except
CRC contains
certain basic principles and features on the subject of Non-discrimination
(Article 2), rights to life, survival and development (Article 6), right to
opinion in matters affecting them (Article 12). It further protects best
interest of the child in its Article 3 by stating when the authorities of a
state take decision which affect children the best interest of the children
must be a primary consideration. This principle relates to decision by Courts
of law, administrative authorities, legislative bodies and public and private
social welfare institutions.
The convention
under discussion seems contradictory to the CRC, as well, which has been
ratified not only by
June Starr in
his treatise the Global battlefield: culture and international child custody
disputes at the century's end mentions another obstacles to Muslim's acceptance
of the Hague Convention by stating that if a case involving a non-Muslim mother
and Muslim father to Muslim majority nations does not merely concern return of
the child from country A to country B but that is something much more substantial
is at stake: under which religion and culture should the child be raised.[14] Ericka A. different cases.[15]
This practice is a legacy of the British tradition elaborated by Lord Atkin in a case stating therein that within the
If we analyse provisions of the Hague Convention, 1980 it seems
that the Convention is sacrificing the essence of law regarding custody of a
child, i.e., consideration of welfare of the child at the alter
of procedure, i.e., the Court of the country where the child is present cannot
go into the question of merits of the case, including the welfare of the child,
because Article 16 has ousted the jurisdiction of the Court vis-a-vis merit of the cases for the custody of the child.
The basic
philosophy of law is that the substantive Law is the actual purpose and object
of the law and to achieve that purpose procedural/adjective Law is devised. It
is the substance which is always considered superior and to attain the desired
objectives procedures can be moulded accordingly. If
we make substance subservient to the procedure it would be like putting the
horse behind the cart. It is against all norms of justice and fair play. As we
see all rules are made for the welfare of the humanity and human is not
sacrificed for the rules which do not cater for the welfare.
If we consider
the example of Extradition Laws, all over the world basic principle is that if aprima facie case is established in front of the local
magistrate then the accused is permitted for extradition. So, the Extradition
Act, 1972 demands in its Section 8 (2) from the Magistrate that he shall
inquire into the case in the same manner, and have the same jurisdiction and
powers, as nearly as may be, as if the case were on triable
by a Court of session and shall take such evidence as may be produced in
support of the requisition and on behalf of the fugitive offender.[17]
Further, under Section 5 (2) of the Extradition Act, 1972 no person can be
extradited if he has not committed an offence which entails punishment of
imprisonment for not less than twelve month. Interestingly, some countries do
not permit extradition of their citizen.[18]
If we compare this scenario with the situation of a child, the child is not an
accused rather is considered to be a victim, and this treaty is not permitting
the judge to look into the welfare of the child and demanding just to return
the child. It seems absolutely illogical and against all the norms of law.
The Hague
convention of 1980 can be considered self contradictory as well because the
preamble of the same stress upon the welfare of the child whereas the operative
articles 16 and 19 precedence the procedural requirements over the essence, Schnitzer-Reese writes in his article that according to the
Sharia a child is considered to be Muslim regardless
of which parent, mother or father, is Muslim, and the child must be raised as
Muslim.[19]
Preamble of CRC
respects importance of the tradition and cultural values of each people for the
protection and harmonious development of the child.[20]
Ericka A. Schnitzer-Reese mentions in his article
that abduction to Muslim majority countries that incorporate Sharia in their legal system touch on the complicated
issues of cultural and religious intra-family conflict. If an international
child abduction case does make it to Court, significant questions rise on
behalf of the parents for whom the Court is foreign: "
do we trust the foreign Court in cases of cultural conflict, when the
foreign Court represent a particular culture? How much can we trust foreign Court
if the issue goes beyond 'pure' custody and into the realm of cultural and
religious differences? Are Courts qualified to make such decisions? These
questions raised what are believed to the real issues surrounding parental
child abduction to Muslim majority countries; how can issues of cultural and
religious difference be fairly, and effectively adjudicated.[21]
Professor Imran Ahsan
Niazi commented in his article on CRC, which comments
are more appropriately applicable to the Hague Convention, by stating that the
accumulative affect of the system provided by the convention is that the
positive aspects of Islamic legal system are being ignored completely. A legal
system that is followed by one forth of humanity (likely become one half of
humanity in fifty years or more) cannot be washed away nor can it be ignored.
If it is neglected without appropriate action, it is likely to cause more
problem than it will solve. It is therefore time to focus on the positive
contribution that the Islamic legal system can, and will, make both inside the
Muslim countries and outside them.[22]
As mentioned by Martha F. Davis in his article that according
to the Hanafi School of law, as recognised
by most Pakistanis, a divorced mother's right to the care and custody of her
children prevails over the father's claims until the girls reach the age of
puberty and the boys reach the age of seven. The right of father to custody of
child arises after attaining the aforesaid age of the child; however, the
father continues to retain legal, if not actual custody, throughout the
children's minority.[23]
Therefore, in the case of Muhammad Bashir v. Ghulam Fatima the High Court has held that it is not for
the Courts to say it is against the minor's welfare that custody should be
taken away from the person who is by law entitled to the custody, as of right;
since, when the law lays down that the custody shall be with a specified
person, the law presumes that where the legal custody is, there is the greatest
welfare of the minor to be placed. The Court is bound by the provisions of the
law in forming opinion as to whose custody is most for the welfare of the
minor.[24] Thus,
welfare of child was subsumed in the provisions of law determining custody of
child under this concept.
However, in the case of Zohra Begum v. Latif Ahmed Munawwar,[25]
the Court decided that both minor—a daughter and child age more than seven
years—should remain in their mother's custody on the principle that welfare of
children overrides other consideration while determining custody. This concept,
in fact, was laid in an earlier case of Bakhsh v. Ghulam Fatima[26] wherein it has held that all rules of
Muhammad law relating to the guardianship and custody of the minor are merely
application of the principles of benefit of the minor to diverse circumstances.
Welfare of the minor remains the dominant consideration and the rules only try
to give effect to what is the minor's welfare for the Muslim point of view.
Thus, thereafter, welfare of child surfaced as a determinative factor in
custody cases. So, the Supreme Court in Feroze Begum v.
Muhammad Hussain, has laid the principle "the overriding and paramount
consideration is always the welfare of the minor and the father being legal
guardian cannot compel the Court to pass an order in his favour
unless it is in the welfare of the child.[27] So,
now the Courts are unambiguously, following the principle of welfare of minor
in the cases of custody while passing orders, whether interlocutory or final.
So the custody of child in oblivious to the set principle of welfare of child
as demanded by The Hague Convention is altogether alien to our jurisprudence.
On the other hand, in the case of Ms. Louise Anne Fairley v. Sajjad Ahmed Rana the High Court did not go into determining of
welfare of child while handing over child to her mother in habeas corpus
petition and deciding against the raised proposition of the respondent that as
the child profess Islamic faith, therefore, it is not in her welfare to send
her back to U.K., where the culture and norms are fundamentally in
contradiction to the Islamic injunction. The Court had held that the question
about the welfare of the minor, can only be decided by
a Court where the minor is habitually residing.[28] Another
case in which though the custody of minor was given to her Christian mother in
habeas corpus petitioner, but credentials of the father and mother was
evaluated vis-a-vis welfare
of the minor.[29]
The use of word "parental child abduction" as in
the protocol[30] between
As a sequence to
what has narrated above it is concluded that before signing The Hague
Convention we need to take into consideration all above summarized
reservations. Perhaps, therefore, the Declaration of the International Judicial
Conference, 2012, where parental child abduction was one of the topics for
discussion, does not make any reference to The Hague Convention, rather, holds:
"it is hereby declared that cogent steps be taken
to improve the efficiency of the UK-Pakistan Judicial Protocol on Children
Abduction signed in 2003. More importantly, it is recommended that the
Pakistani Government may strongly consider entering into treaties with
countries to give effect to judgments in foreign jurisdictions. To ensure
effective dispensation it is imperative to establish dedicated special benches
at Provincial levels, along with inter-agency steering committees, focused
primarily on issues of parental child abduction. Another possible mode may be
to encourage the establishment of centres of help or
NGOs which specialize in the particular needs of both parents and children
threatened by the prospect or suffering from the reality of child abduction in
any of its forms. Finally it is recommended that dispute resolution mechanisms,
such as mediation, be employed in resolving cases of child abduction".
[1]. Mr. Ataullah
Khan Mahmood is an Assistant Professor (Law) and lncharge postgraduate program in the Faculty of Shriah & Law, International Islamic University,
[2]. Mr. Ijaz Ali Chishti is a Ph. D (Law) Student at
[3]. Preamble to the Convention on the Civil
Aspects of International Child Abduction, concluded on
[4]. Article 1 of the
Convention on the Civil Aspects of International Child Abduction.
[5]. Article 3 (a) of the
Convention on the Civil Aspects of International Child Abduction.
[6]. Article 12 of the
Convention on the Civil Aspects of International Child Abduction.
[7]. Article 20 of the
Convention on the Civil Aspects of International Child Abduction.
[8]. Article 19 of the
Convention on the Civil Aspects of International Child Abduction.
[9]. Article 16 of the
Convention on the Civil Aspects of International Child Abduction.
[10]. Article 142 (a) & (b)
of the Constitution of lslamic Republic of
[11]. The CRC guide provided by
UNICEF on its website.
[12]. Committee on the rights of the Child,
consideration of reports submitted by state parties under Article 45 of the
convention, initial reports of states parties due in 1993 (Addendum): Pakistan,
CRC/C/3/Add. 13-28 May 1993.
[13]. Idea has been taken from the CRC guide made
available by UNICEF on its website.
[14]. June Starr, the Global battlefield: culture
and international child custody disputes at the century's end, 15 Ariz. J.
International & comp. Law 791. 806(1998).
[15]. Ms. Sheila Zia and others
v. Wapada, PLD 1994 SC 693; SGS Societe
Generate v.
[16]. Attorney General for
[17]. Section 8 (2) of the
Extradition Act, 1972 (of
[18].
[19]. Ericka A. Schnitzer-Reese,
international child abduction to non-Hague convention countries: the need for
an international family court, north western university journal of internal
human rights, vol. 2 (April 2004).
[20].
[21]. Ericka A. Schnitzer-Reese,
international child abduction to non-Hague convention countries: the need for
an international family court, north western university journal of internal
human rights, vol. 2 (April 2004).
[22]. Imran Ahsan Nyazee, Islamic law and the
CRC (Convention on the right of child), Islamabad Law Review, a journal of
Faculty of Shariah and Law, International Islamic
University, Islamabad, vol. 1 Nos. 1&2, Spring & Summer 2003.
[23]. Martha F. Davis in his article on Child
Custody in
[24]. PLD 1970
[25]. PLD 1965 Lah. 695.
[26]. PLD 1958
[27]. 1978 SCMR 299.
[28]. PLD 2007
[29]. PLD 2010
[30]. Parental Child abduction and the
UK-Pakistan Protocol was signed in January 2003 by Judges from
[31]. 2001 PCr.LJ
(
[32]. 2008 YLR (
[33]. 2010 SCMR 1804 (Suo Motu case for
the recovery of minors of Mst. Tahira
Jabeen); 2006 MLD 136.