Says wrongfully removed children should be returned to state of habitual residence
ISLAMABAD:
The Federal Constitutional Court (FCC) has laid down guidelines for Pakistani courts dealing with custody disputes involving minors whose parents hold citizenship of different countries, emphasizing the principle of returning a child to the state of habitual residence in cases of wrongful removal or retention.
A three-member bench headed by FCC Chief Justice Amin-ud-Din Khan issued the guidelines while hearing a child custody case. The eight-page judgment, authored by Justice Ali Baqar Najafi, also explained the circumstances in which a foreign judgment may be recognized by Pakistani courts.
The court held that while dealing with custody disputes between parties holding citizenship of different countries, courts should consider the jurisdiction of the foreign court that passed the order.
They should also review whether the judgment was given on merits, whether the proceedings were conducted in accordance with the principles of private international law while recognizing Pakistani law, and whether the judgment was obtained in violation of natural justice or through fraud.
The FCC observed that removal or retention of a child would be considered wrongful where it violated the law, a judicial or administrative decision, or a lawful agreement of the state where the child was habitually residing immediately before the removal or retention. “Unless the child is found settled, he is to be returned to the state where he was habitually residing,” the court held.
The judgment said that after receiving notice from judicial or administrative authorities regarding the wrongful removal or retention of a child, a court should not decide the merits of custody rights unless it has first been determined that the child is not to be returned under the Convention on the Civil Aspects of International Child Abduction, 1980.
The court noted that Clause 6-A of the West Pakistan Family Courts Act permits local family courts to deal with matters relating to the return of children under the Hague Convention on the Civil Aspects of International Child Abduction, 1980.
The convention, the court observed, emphasizes the exercise of jurisdiction among courts of different contracting states to avoid conflicting decisions.
Referring to Article 3 of the convention, the judgment said the removal or retention of a child is wrongful where it breaches custody rights attributed to a person under the law, a judicial or administrative decision, or a lawful agreement under the law of the state in which the child was habitually resident immediately before the removal or retention.
The court noted that such custody rights must have actually been exercised at the time of the removal or retention, either jointly or alone.
