Imagine a home where a husband is beating his wife and the child. Fearing the worst —the wife and child manage to escape from their home to seek refuge in a place where they can be safe. This place of refuge could be a shelter home, a relative's house, a parent's house, a different city or – in circumstances of grave risk–a different country.
Grave situations where women take refuge in a different country (or a country of their first nationality) that is not the habitual residence of her child – the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("Hague Convention") can be invoked by the parent left behind (the father-husband).
The Hague Convention is a multilateral treaty established by the Hague Conference on Private International Law (HCCH), which has been ratified by more than 100 countries, including Pakistan. It aims to secure the prompt return of children from wrongful removal across international borders by a parent or guardian.
A majority of petitions initiated under the convention have been moved by abusive fathers against protective mothers, and approximately 75% of all Hague cases worldwide involve legal actions directed at mothers who are seeking to return to their home countries with their children in their attempts to flee from domestic violence or to seek to protect their children from abuse; confirm GlobalARRK –a UK-based charity helping mothers in such cases; and the Special Rapporteur on Violence Against Women and Girls Raheem Alsalem, in her 2023 report to the Human Rights Council.
To better protect women and children fleeing domestic abuse, the HCCH Permanent Bureau has published guides to good practices which provide guidelines to contracting states on the proper application of the convention, especially where a mother raises the ground of domestic violence and its effect on the child (grave risk defence under Article 13(1)(b)). However, the international family justice community has questioned the efficacy of the convention and the courts adjudicating cases like this. The predominant reason for poor efficacy in courts was that the courts were only concerned about the expeditious disposal of cases and the prompt return of the child while conveniently negating the issue of domestic violence and how it poses a grave risk to the child's best interests.
Most cases filed under the Hague Convention end up with the child being separated from their mother and returned to the father's jurisdiction. Upon the child's return, the fathers use the Hague order in subsequent custody proceedings to discredit the mothers' character and intentions while labelling them as an 'abductor'.
Since Pakistan is a signatory to the convention, it is used here and is no different to other signatories. Even though Pakistan has a robust, family law framework and legislation on child protection and domestic violence, mothers face unwarranted scrutiny from the courts for taking the child away. Moreover, family courts have been increasingly misinterpreting the Hague return orders as a 'final custody order', resulting in mothers being refused custody or guardianship.
It must be noted that the convention does not decide which parent retains custody of a child; it merely decides the 'habitual residence' or 'jurisdiction' where child custody proceedings can be brought.
Even though courts are responsible for interpreting and applying it (often incorrectly), they cannot be blamed alone. The responsibility also lies with lawyers in this country
This dismal scenario has worsened since the Sindh High Court (SHC) issued a judgement in a case (CPS No. 678/2022) earlier this year, which awarded unwarranted and unabashed acquiescence to lower courts in continuing to misapply the Hague Convention.
International family lawyer Jeremy D. Morley commented on the SHC on the decision and said that it raises substantial concerns around future cases that are brought under the convention in Pakistan.
For no good reason – the judgment lauds itself as a successful application of the Hague Convention. However, a thorough reading of the judgement reveals that the pen was used to antagonise and disempower the respondent-mother by going as far as using the word "trafficked" for her conduct of moving through different jurisdictions with her three-year-old boy.
The practice of using the Hague return orders as a weapon to disarm mothers in child custody-guardianship or domestic violence proceedings must not become a trick that lawyers benefit from.
Massive protests by mothers wronged by the convention's misapplication led to the creation of the first-ever Forum on Domestic Violence and the Operation of Article 13(1)(b) in Sandton, South Africa. The forum was convened by the HCCH Secretary General Dr Christophe Bernasconi, and I had the pleasure of attending.
The forum upheld the contention of the convention's misapplication and proposed to work on post-return protective measures, the establishment of a Special Commission and the need to recognise the global issue of domestic violence which begs to be taken seriously. It also pressed on the continued collaboration of the contracting states and relevant stakeholders, especially lawyers and psychologists-psychiatrists, to exercise their unique influence and opportunity to harmonise relationships, protect the children, and bring peace to the society at large.
Even though courts are responsible for interpreting and applying it (often incorrectly), they cannot be blamed alone. The responsibility also lies with lawyers in this country to be as sensitive and informed as possible when dealing with cases that involve a relationship as important as that of a parent and a child.
In light of these significant challenges, it is imperative that the application of the Hague Convention is re-evaluated and reformed to ensure it does not inadvertently harm the very individuals it aims to protect. Courts and legal practitioners must be sensitised to the complexities of domestic violence and its impact on both mothers and children. Implementing post-return protective measures, fostering 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 safeguard the rights and well-being of children and their protective parents, ensuring that justice is truly served. The legal community must rise to the occasion, embracing its critical role in harmonizing relationships and fostering a safer, more just society for all.