Imagine a home where a husband beats his wife and child. Fearing the worst, the wife and child manage to flee their home and seek refuge in a place where they are safe. This refuge can be a home, a relative's house, a parent's house, another city, or – in times of great danger – another country.
In serious cases where a woman seeks refuge in another country (or in the country of her first nationality) which is not the habitual residence of her child, the left-behind parent (the father or husband) may invoke the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”).
The Hague Convention is a multilateral treaty of the Hague Conference on Private International Law (HCCH) and has been ratified by more than 100 countries, including Pakistan. The aim of the Convention is to ensure the prompt return of children who have been unlawfully abducted across international borders by a parent or guardian.
The majority of petitions initiated under the Convention have been brought by abusive fathers against protective mothers, and around 75% of all Hague cases worldwide concern court cases against mothers seeking to return to their home countries with their children to escape domestic violence or to protect their children from abuse, according to GlobalARRK – a UK-based charity that helps mothers in such cases – and the Special Rapporteur on violence against women and girls, Raheem Alsalem, in their 2023 report to the Human Rights Council.
To better protect women and children fleeing domestic violence, the Permanent Bureau of the HCCH has published Guides of Good Practices that provide guidance to States Parties on the proper application of the Convention, particularly when a mother invokes domestic violence and its impact on the child as a ground (serious endangerment defence under Article 13(1)(b)). However, the international family law community has questioned the effectiveness of the Convention and the courts that adjudicate cases such as this. The main reason for the courts' lack of effectiveness was that they were only concerned with the expeditious disposal of cases and the prompt return of the child, while conveniently ignoring the issue of domestic violence and the serious endangerment of the child's welfare.
Most cases filed under the Hague Convention end with the child being separated from the mother and returned to the father's jurisdiction. After the child is returned, fathers use the Hague Convention in subsequent custody proceedings to discredit the mother's character and intentions, branding her as a “kidnapper.”
Since Pakistan is a signatory to the Convention, it is applied here and is no different from other signatories. Although Pakistan has a robust family law and laws to protect children and combat domestic violence, mothers face unfair criticism from the courts when they take their child away from them. In addition, family courts are increasingly interpreting Hague Convention return orders as a “final custody order,” resulting in mothers being denied custody or guardianship.
It should be noted that the Convention does not determine which parent retains custody of a child; it merely establishes the “habitual residence” or “jurisdiction” where custody proceedings can be initiated.
Even if the courts are responsible for the interpretation and application (often incorrectly), they cannot be held solely responsible. The responsibility also lies with the lawyers in this country.
This grim scenario has worsened since the Sindh High Court (SHC) delivered a judgment earlier this year in a case (CPS No. 678/2022) in which it unjustly and blatantly accused the lower courts of continued misapplication of the Hague Convention.
Commenting on the SHC decision, international family lawyer Jeremy D. Morley said it raises significant concerns for future cases brought in Pakistan under the Convention.
For no good reason – the judgment boasts itself as a successful application of the Hague Convention. However, a thorough reading of the judgment shows that the pen was used to provoke and disempower the defendant mother, even going so far as to use the word “human trafficking” to describe her behavior of traveling to different jurisdictions with her three-year-old son.
The practice of using the Hague return orders as a weapon to disarm mothers in custody and guardianship proceedings or in domestic violence proceedings must not become a ploy from which lawyers profit.
Massive protests by mothers harmed by the misapplication of the Convention led to the establishment of the first Forum on Domestic Violence and the Application of Article 13(1)(b) in Sandton, South Africa. The Forum was convened by the Secretary General of the HCCH, Dr. Christophe Bernasconi, and I had the pleasure of participating.
The Forum reiterated the claim that the Convention is being misapplied and proposed addressing post-return protection measures, establishing a special commission and recognizing the global problem of domestic violence that needs to be taken seriously. It also urged continued cooperation between States Parties and relevant stakeholders, particularly lawyers and psychologists/psychiatrists, to exercise their unique influence and capabilities to harmonize relationships, protect children and bring peace to society at large.
While the courts are responsible for the (often incorrect) interpretation and application of these laws, they cannot be held solely responsible. Lawyers in this country must also be as sensitive and informed as possible when dealing with cases involving a relationship as important as that between parent and child.
Given these significant challenges, it is imperative to reassess and reform the application of the Hague Convention to ensure that it does not inadvertently harm the very people it is designed to protect. Courts and legal practitioners must be sensitized to the complexity of domestic violence and its impact on mothers and children. Implementing post-return protection measures, promoting international cooperation and ensuring that the Convention's guidelines are applied with the utmost care and understanding are all essential steps. Only through such comprehensive efforts can we protect the rights and well-being of children and their protective parents and ensure that justice is truly served. The legal community must rise to the occasion and play its critical role in harmonizing relationships and promoting a safer, more just society for all.
Comments are closed.