by Jeremy D. Morley 

The United States accepted Pakistan's accession to the Hague Abduction Convention in 2020, but there has been very little experience so far concerning Pakistan's compliance with the treaty. The latest State Department report to Congress on this issue merely states that no Convention cases concerning abductions from the United States were decided in 2022, and that “some implementation challenges remain.”

A very recent decision in a Convention case in Pakistan raises substantial cause for concern. In that case, Mohammad Faraaz Shaikh v. Ms. Javeria Shahani, C.P. No. S-678/2022, decided on January 25, 2024, the Sindh High Court at Karachi ordered the return of a child who had been been abducted to Pakistan from the United States in 2022. It reached the right decision but for entirely the wrong reasons.

The basic principle of any Hague Convention case is that the court must merely decide whether there has been a wrongful removal or retention of a child from the child's country of habitual residence, and whether the respondent has established any of the six exceptions to the principle that the child should be expeditiously returned. Most fundamentally, a Hague Convention case is not a child custody case.

In Shaikh, a Pakistani mother took the child from North Carolina, where he was born and lived, to Karachi and retained him there in violation of the father's equal parental rights as determined by a pre-abduction order issued by a North Carolina court. The mother had previously filed a domestic violence case against the father in North Carolina, and two cases with the Department of Social Services, all of which had been dismissed because her allegations were determined to be false and baseless. Promptly after arriving in Pakistan, the mother initiated a case for custody in a Family Court in Karachi. The North Carolina court then issued an order awarding temporary sole custody of the child to the father and ordering the mother to return the child. The  Karachi Family Court then dismissed the mother's custody case and ordered the child's return to North Carolina, apparently pursuant to the Hague Convention. The mother appealed that order tp the Sindh High Court on the principal ground that the mother was a Muslim and was therefore automatically entitled to hazanat (sole residential custody) of a young child under Pakistani custody law.

The High Court ultimately ruled that the child should be returned, on the basis of two distinct grounds. The first ground was that the mother's automatic right to sole residential custody of a young child must give way to the best interests of the child because of certain extreme and unusual facts concerning the mother. These facts were that not only had she “trafficked” the child from America, but also that she had violated interim custody orders of the lower Pakistani court, had destroyed the child's U.S. passport, had dug holes in his Pakistani passport, and had failed and refused to provide any information about the child's school in Karachi.

The second ground of the High Court's decision was that, pursuant to the provisions of the Civil Procedure Code of Pakistan concerning the enforcement of foreign judgments, it would enforce the terms of the North Carolina court's post-abduction sole custody order.

Although the High Court described the purposes of the Hague Convention it did not cite any of the specific provisions of the treaty . It did not explain the fundamental distinction between a Convention case and a child custody case. It relied in large part on the adoption of the opinions of the North Carolina concerning child custody as well as on domestic Pakistani legislation concerning the enforcement of foreign court orders, rather than on the terms of the Convention. Its decision was based on the specific and unique facts of the case concerning the mother's unfitness to be the custodial parent.

Accordingly, the case raises substantial concerns that future cases that are brought under the Convention in Pakistan will be treated as child custody cases, and that the need to return children expeditiously to their country of habitual residence unless one of the limited and narrow exceptions is well established so that the courts there can make such determinations, will give way to lengthy and expensive evaluations by the courts in Pakistan, which should not be exercising custody jurisdiction in such circumstances.

Finally, it is not known whether the order has been effectively enforced in Pakistan and whether further appeals or other proceedings are under way. Thus far, it has been one year and ten months since the date of the abduction.