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New protocol is major step forward on child abduct

1 August 03

A protocol between the UK and Pakistan may allow an additional remedy in relation to children abducted or threatened with abduction to or from Pakistan

by John Fotheringham

The terms of the Hague Convention on the civil aspects of the international  abduction of children are well enough known and understood.  They allow the return of the child abducted from any state which is party to the Convention to another so that the court of the country of the habitual residence of the child may decide upon matters of substance relating to the child’s welfare, including especially matters of residence and contact.

The Convention is a very successful weapon in the family lawyer’s armoury and it has enabled the quick return of many abducted children and, no doubt, deterred the planned abduction of many more.

The weakness of conventions such as this one, however, is in their geographical limitations.  A child abducted from a signatory state to a non-signatory state cannot fall within the ambit of the rules. The Convention’s success in the UK has largely depended upon the fact that the countries to which most potential abductors wish to go are states party to the Convention. One major exception for UK cases, bearing in mind the exceptionally close social and historical links between the two countries, has been Pakistan.

The Pakistani government, in common with governments of most Muslim states, has never been prepared to sign the 1980 Hague Convention. The reasons have no doubt been compelling and domestic but the lack of any agreement between the UK and Pakistan has led to a number of difficult and sad cases over the years.  This has been particularly so in cases of households where one parent, born and raised in Pakistan, has come to the UK to marry a UK citizen of Pakistani origin but whose culture and outlook have been much more conventionally British. The immigrant parent, if the marriage has broken down, has sometimes been tempted to remove the child “home” to Pakistan without the consent of the other parent or else to retain the child there after the end of an agreed holiday.

The new protocol, the text of which is set out below, may now provide a remedy which may “protect the children of UK and Pakistan from the harmful effects of wrongful removal or retention from one country to another.”

The protocol was the product of a meeting between judges of the two states in London in January of this year. The final document was signed on behalf of the UK judiciary by Dame Elizabeth Butler-Sloss, the President of the Family Division of the High Court of Justice of England and Wales. Lady Smith represented the Scottish judiciary. Although Lady Smith did not actually sign the protocol it is understood that the Scottish Courts will accord it full respect. More importantly from our point of view it seems that the courts of Pakistan would recognise the jurisdiction  and competence of the  Scottish courts in substantive issues concerning the welfare of Scottish children.

The protocol is not, however, a Hague Convention by another name.  Before the court of the country to which the child is abducted, or in which the child is unlawfully retained, will send the child back home in order to establish the substantive issues of welfare, the non-abducting parent must, according to a strict reading of the protocol, have had a court order either for residence or interdict before the abduction.

This has serious implications for the advice which we as practitioners must give to our clients.  If there should be a suspicion that a client’s spouse or other relative is planning to take a child to Pakistan without consent, or else to retain the child there beyond the given period of consent, then it may be necessary to advise that client to seek interdict or a section 11 order as a  preventative measure.  It is not certain that the Pakistani authority would respect a Minute of Agreement registered in the Books of Council and Session as a court order.

It would appear that in the case of wrongful retention the non-abducting parent should seek his or her order before the start of wrongful retention.  On one interpretation of the third article of the protocol, an abducting parent without any section 11 rights or responsibilities at all could retain the child in a second country without the consent of the other parent and without falling within the ambit of the protocol. It is suggested that a purposive interpretation would and should solve this problem.

It is worthwhile noting that the attitude of the Pakistani judiciary has, by all accounts, been very positive throughout the process of discussion, before and since the conclusion of the protocol. According to Lady Smith, there is every reason to believe that that theme will continue in its implementation. It may even be that the Pakistani Courts will treat the habitual residence of the child as the critical criterion without a prior order. It would, of course, be unwise to advise a client to rely on such an optimistic interpretation, especially before the new system has been tested.

The major practical difficulty which may prove insurmountable to many of our clients is that, despite the recommendation in Article 7, there is not yet any provision of automatic legal aid for the parties in a case under the protocol.  SLAB will not be able to grant Legal Aid in cases under the protocol without applying the normal tests of means: such a change would require the Scottish Parliament to amend the present rules. SLAB is aware of the protocol and pending any such legislative change, the Board is planning to put in place a fast-track procedure for appropriate cases.

 In the meantime, clients who cannot fund proceedings under the protocol may wish to apply to the Foreign and Commonwealth Office for assistance. There is no formal requirement on the FCO to provide funding but the request can be made,using the influence of the client’s MP, if necessary. The official position of the FCO is that it cannot under any circumstances provide funding. The most they say they can do is put people in touch with other agencies which may be able to give direct or financial help. Beyond that the FCO say that they will only give ‘Consular assistance.’ It is not clear whether or not the Pakistani authorities will be more generous to a Scottish petitioner under the protocol.

A Scottish solicitor’s first port of call should be the Scottish Executive Civil Justice and International Division for initial information and advice, although strictly speaking, the Scottish Executive has no central authority role under the protocol .

The London Protocol represents a major step forward in this area of law. The precise legal status of the document may be uncertain but if it provides real practical remedies for real practical problems then we should all welcome it. Any impetus towards international co-operation in family law can only be applauded by practitioners in Scotland and in Pakistan. We have a long, shared history and many social and family ties. We share the fact that the welfare of the child is the paramount consideration in matters of parental responsibilities and rights.

The London Protocol, if properly used and funded, may lead to further cross-border co-operation with Pakistan and may, in time, influence other non-Hague Convention states to consider similar arrangements.