by Jeremy D. Morley

Bangladesh is a safe haven for international child abduction. It has not adopted the Hague Abduction Convention, nor has it entered into any bilateral arrangements concerning international child abduction. And the wheels of justice turn very slowly there.

It had been hoped that the courts in Bangladesh might decide that the provisions of the Hague Convention had become part of customary international law. That argument was presented – and rejected -- in a high-profile case between a Japanese mother and a Bangladeshi father, in which during the past three years I assisted the Japanese mother in collaboration with her lawyers in Bangladesh.

The family lived permanently in Tokyo, Japan. The father removed two of their three children to Bangladesh in February 2021 without the mother's knowledge or consent while a custody case was pending in Japan. After the abduction, the Japanese Family Court gave sole custody to the mother. The mother retained several top lawyers in Bangladesh and fought a non-stop battle in the Bangladeshi courts over the next three years to try to recover her children. Indeed, in an effort to maximize her chances of success, she temporarily lived in Bangladesh while fighting nonstop to get the children back home to Japan. She has spent huge amounts of time in Bangladesh and was initially given certain residential custody rights but only to be exercised exclusively in Bangladesh. She spent her life savings on the cases in Bangladesh and lost her medical oncology position in Tokyo because of the extraordinary length of time that she had to spend in Bangladesh to pursue her case.

The Bangladeshi courts failed and refused to give comity to the Japanese order. Indeed, promptly after the abduction, the father obtained an order barring the children's removal from Bangladesh. The courts in Bangladesh subsequently issued an array of contradictory decisions in the case. In November 2021, the Dhaka High Court even awarded temporary sole custody of the children to that the father, with visitation rights to the mother exercisable only in Bangladesh.  The Supreme Court of Bangladesh then gave temporary custody of the children to the mother provided she did not remove them from the country. The father violated that order and the mother brought contempt proceedings. Further extensive litigation ensued. The Supreme Court remanded the case to the Family Court for a plenary “best interests” determination, ordering that it should be concluded “within three months.”

Despite the Supreme Court order the case was not decided for another two years, while extensive further litigation ensued. In February 2024, the Dhaka High Court finally issued an order. It confirmed that, despite the father's unlawful removal of the children from their home and habitual residence in Japan, it had plenary child custody jurisdiction. It explained that child custody in Bangladesh is governed by the Guardians and Wards Act, which was enacted in 1890, but that law provides little guidance except that decisions should be made “consistently with the law to which the minor is subject, “meaning the religious community to which the child belongs, with a consideration for the child's welfare and the wishes of an older child. It then held that, because the Bangladeshi Family Court Ordinance, 1985 provides that the Family Court in the district where the child is located has exclusive jurisdiction over all family matters, including guardianship and custody of children, it had custody jurisdiction under Bangladeshi law simply because the father and child were in Bangladesh.

The Dhaka court then considered the wishes of the children, who had been living in Bangladesh for three years by this time. One child wanted to return with the mother to Japan. The other stated that she now wanted to stay with her father in Bangladesh. The matter then concluded on that basis, with the court ordering that the siblings should be separated and that the mother could leave the country with only one of her children.

Clearly the legal system in Bangladesh is ineffective to deter international child abduction to that country. Indeed, by allowing its courts to assume plenary child custody jurisdiction in cases which take years to conclude, during which taking parents can easily create new facts on the ground by enrolling their children in school and obtaining immediate travel bans, Bangladesh endorses the abduction of children to that country by Bangladeshi parents.