CHILD ABDUCTION AND TRANSNATIONAL JURISDICTION
“The great malady of the 20th century implicated in all of our troubles and affecting us
individually and socially is “loss of soul”. When soul is neglected, it doesn’t just go away, it
appears symptomatically in obsessions, addictions, violence and loss of meaning”.
We are all aware of the natural right of a child to a happy childhood. It should be the happiest time of a
person’s life. In my opinion as a parent, lawyer and a citizen, the most heinous form of all crimes is child
abuse, whether that be in the form of abduction, trafficking, pornography, prostitution, since it has the
effect of debasing human beings of a very tender age. It sickens me and perhaps, no words of mine can
sufficiently express the abhorrence I feel for child abuse.
The manner in which international agencies co-operate and share their expertise in trying to understand
the problem of child abduction and transnational jurisdiction was brought to my notice when I had the
privilege of opening the 9th International Congress on the Rights and Protection of Children held in
Hamburg, (Germany) in Oct, 1991 organized by the International Society for the prevention of Child
Abuse. The Congress addressed many issues of importance and stressed that child abuse can realistically
be combated through international cooperation as well as a united effort put in by our own nation.
Child Abduction is the abduction/kidnapping of a child . Several distinct forms of child abduction exist:-
1) A stranger removes a child for criminal or mischievous purposes.
2) A stranger removes a child to bring up as that person’s own child.
3) A parent removes or retains a child from the other parent’s care, often in the course of or after
Many cases of child abduction have been reported from antiquity. However, this phenomenon has
recently taken on greater dimensions as a result of movies and television series that depict people who
remove children from strangers on the premise to bring up as their own often after the death of their own
ABDUCTION BY STRANGERS
The conventional version of abduction by strangers is the classic form of “kidnapping” and also the most
feared, in which, the child is detained, transported far away, held for ransom, sexually abused and
thereafter murdered. The ingredient in this offence is that it concerns children being taken from their
family, community and indeed their own country, and trafficked across international borders to another
country, possibly on the other side of the world for the purpose of their sexual exploitation.
ABDUCTION BY STRANGER TO RAISE AS OWN
The most common kind of child abduction is parental child abduction which often occurs when the
parents separate or begin divorce proceedings. A parent may, remove or retain the child from the other
parent, seeking to gain an advantage in the expected or pending child custody proceedings, or because
that parent fears losing the child in the lengthy pending child custody proceedings. A parent may refuse to
return a child at the end of an access visit or may even flee with the child to prevent an access visit.
Depending on the laws of the state and the country in which the parental abduction occurs, the act may or
may not constitute a criminal offence. For example a removal of a child from the UK for a period of
twenty eight days or more, without the permission of the other parent (or person with parental
responsibility), constitutes a criminal offence. Many U.S states have criminalized interstate child
abduction. The National Conference of Commissioners on Uniform State Laws has undertaken a project
to draft a uniform state law dealing with parental abduction.
Serious problems can arise when parental abduction results in moving a child, with a parent, across an
international border. The laws of the states are different, therefore, a foreign child custody order may not
The Hague convention on the Civil Aspects of International Child Abduction is an international treaty
and legal mechanism to recover children abducted to another country by one parent or family member.
The U.S.A signed this into law in 1988. Japan is the only G7 nation that has not signed this treaty into
Child abduction involves both civil and criminal law. However, once a child has been removed via
parental abduction, it is usually treated as a civil matter.
When a child’s parents are married, they both have parental responsibility. When the father is not married
to the mother, he does not have parental responsibility simply by virtue of being the father, but he may
acquire it either through a court order or by a formal agreement with the mother (under a parental
The orders of the court include residence orders, which settle the issue of custody, and contact orders
It is the court which can pass an order that a parent with a residence order may take a child out of the
country for a certain specific period. If there is a failure or refusal to return the child after the expiry of
that period, it will constitute a wrongful retention of the child for the purposes of the Hague convention
and the Revised Brussels II Regulation. In cases where there there is a fear of abduction, the court may
make a prohibited steps order to restrain either or both parents from taking the child abroad beyond the
jurisdiction of that court which is termed as transnational jurisdiction.
Under criminal law, taking or sending a child beyond the jurisdiction of his/her country without the
consent of any other person who has parental responsibility for the child (a parent who has the right to
have contact with or access to a child will usually also have parental responsibility) amounts to an
No offence is committed where a child is the subject of a custody/residence order if the court which made
the order, has consented to the child being removed from the country.
HISTORY OF THE HAGUE CONVENTION
In recognition of the harmful effects of child abduction, the Hague Convention was drafted as an
international treaty that detailed the appropriate legal procedures and remedies for international child
abduction and sought to enhance uniformity. The aims of the Convention included tracing abducted
children, securing their prompt return to the country of habitual residence, and facilitating effective rights
of access. The purpose stated in the Preamble is “to protect children internationally from the harmful
effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to
the State of their habitual residence, as well as to secure protection for rights of access.”
The Hague Convention was drafted under the assumption that the primary perpetrators of international
child abduction were non-custodial fathers who were dissatisfied with the actual or predicted outcomes of
custody proceedings. Under the Convention, the judicial remedy of return is premised on a determination
of whether the removal or retention was “wrongful”.
“Wrongful” is defined as a breach of the “rights of custody” attributed to a person. The Convention
sought to recognize various custodial and guardianship arrangements of different jurisdictions by broadly
stating that rights of custody include the rights relating to the care of a child, and in particular, the right to
determine the child’s place of residence.
The Hague Convention defines “rights of access” as the “right to take a child for a limited period of time
to a place other than the child’s habitual residence. Parents with mere access rights however, cannot file a
petition under the Hague Convention for return of a child to his or her original environment
Under Article I, the Convention’s main objectives are “to secure the prompt return of children wrongfully
removed or retained in any Contracting State; and to ensure that the rights of custody and of access under
the law of one Contracting State are effectively respected in the other Contracting State.” Other purposes
of the Convention include protecting children from the harmful effects of wrongful removal, deterring
international parental child abduction, preserving international community, ensuring uniform procedures
for prompt return of the child to one’s habitual residence, and securing rights of access. The Convention
is based on the principle that the country of habitual residence is the best forum for resolving custody
disputes, and children should have meaningful family relationships with both parents. Thus, the drafters
hoped to secure the effective exercise of access rights of non-custodial parents. The Convention carefully
distinguished access rights from custody rights because many drafters feared that affording similar
protection to these different rights would lead courts to view both parents as having equal rights. The
remedy of returns is therefore not available for violations of access rights in international parental child
abduction cases. Instead, the Convention includes Article 21, which recognizes the importance of access
rights by supporting the exercise of these rights of non-custodial parents.
The Hague Convention on the Civil Aspects of International Child Abduction was approved in 1980 and
the United States became a contracting party on July 1,1988. The Congress passed the International Child
Abduction Remedies Act (ICARA) for the implementation of the Hague Convention because the two are
The Kansas Supreme Court case of Dalmasso v. Dalmasso is instructive of the typical fact situation that
gives rise to the international abduction of children. In 1991, Mrs. Dalmasso, a United States citizen, and
Mr. Dalmasso, a French citizen, married in the United States. There were four children born during the
couple’s marriage; three of the children were born in France and one was born in Canada. During their
eight-year-marriage, the Dalmassos lived as a family in France, Canada and United States. Specifically,
the children resided with their parents in Canada from September of 1994 to July of 1995. The family
subsequently lived in Kansas from July of 1995 until March of 1996, and in March of 1996, the children
and their parents moved to France where they lived until early January, 1999.
In 1999, Mrs. Dalmasso departed France with three of the four children, claiming that she was dissatisfied
with her marriage and fearful that if her husband initiated divorce proceedings in France, she would never
be able to leave the country with the children. After Mrs. Dalmasso left France, Mr. Dalmasso
commenced legal proceedings in the courts of Dinan, France. On January 29, 1999, the French Court
entered a Provisional Order declaring that all four children should reside with Mr. Dalmasso. On April
12, 1999, Mrs. Dalmasso filed for divorce in Kansas, and requested the Court to render temporary orders
awarding her custody of the children. The Court scheduled a hearing on the temporary orders request.
well as alleging that the other parent used psychological medication. Furthermore, the trial court found
evidence that both the parties employed corporal punishment as a method of discipline.
As a result, the Court declined to enter an order of Temporary Custody in favour of Mrs. Dalmasso and
instead on May 12, 1999, the Court held a telephone conference where all of the parties appeared with
counsel and entered the following stipulations: 1) Mr. Dalmasso was exercising custody rights when Mrs.
Dalmasso removed the children from France and 2) that the children’s residences, as stated in the petition
for divorce, were accurate. However, Mrs. Dalmasso maintained that she did not wrongfully remove the
children, and argued that Convention exceptions existed to support the denial of Mr. Dalmasso’s Petition
for Return of the Children. Specifically, Mrs. Dalmasso alleged that the return of the children to France
would subject them to grave risk of psychological or physical harm.
To support his allegation that Mrs. Dalmaso wrongfully removed the children from France, Mr. Dalmaso
filed a formal Petition for return of the Children, a Declaration, establishing the Habitual Residence of
the Children, and he submitted several other documents including an affidavit clarifying the applicable
French law. After reviewing the pleadings and documents on file and the testimony presented, the trial
court made the following findings: a) France was the appropriate forum to determine the custody issues;
b) Mr. Dalmasso had established by a preponderance of the evidence that Mrs. Dalmasso wrongfully
removed the children from their “habitual residence”; and c) Mrs. Dalmasso had not established by clear
and convincing evidence that return of the children to France would expose them to grave risk of
physical or psychological harm, or that their return should not be permitted under fundamental principles
of human rights and fundamental freedoms. The court then ordered Mrs. Dalmasso to return the children
REVISED BRUSSELS -II REGULATION
The Revised Brussels II Regulation has also introduced a fair and more streamlined process for dealing
with parental abductions in Europe. The new process is based on the Hague Convention but narrows the
grounds on which return can be refused and gives a high level of prominence to hearing the child’s views
and the views of the applicant parent in these proceedings. The Revised Brussels II Regulation also
provides for the state from which the child has been abducted to have the final say on whether the child
should be returned if the child is abducted within the European Union.
OUTSIDE THE EUROPEAN UNION BUT WITH EUROPE
Although the Revised Brussels II Regulation came into force on 1st March 2006, the European
Convention remains in force and continues to apply between the member countries outside the European
Enforcement may be possible in some countries under Article 21 of the Hague Convention, which is the
Hague Convention on the Civil Aspects of International Child abduction.
The Hague Convention works on the principle of returning children aged under sixteen years who are
wrongfully removed or retained, away from their country of habitual residence. In order to be considered
wrongful, a removal or retention must be in breach of rights of custody which are actually being exercised
by a person, an institution or any other body under the law of the state in which the child was habitually
resident immediately before the removal or retention.
Under the Hague Convention, courts are required to order the return of a child wrongfully removed or
retained away from their country of habitual residence, there are however a number of grounds on which
a return order can be refused. These grounds include:
(a) The court being satisfied that to return the child would expose him/her to a grave risk of
physical or psychological harm or otherwise places him / her in an intolerable situation.
(b) The child objects to being returned and is mature enough to have his/ her views taken into
(c) If the applicant was not actually exercising rights of custody at that time of removal or
consented to or subsequently acquiesced in the removal or retention.
It is worth mentioning here that there is a mutual protocol between Pakistan and the United Kingdom
regarding the protection of children of the UK and Pakistan from the harmful effects of wrongful removal
or retention from one country to the other, and a commitment to the welfare of children .On Febuaury
13th, 2006, it was agreed between the Lord Justice of England and the Chief Justice of Pakistan, Mr.
Justice Iftikhar Muhammad Chaudhry that to secure the future of the protocol it should be incorporated
into law by legislation. There is therefore a need for appropriate measures by the governments of the UK
and of Pakistan to formalize the protocol and to incorporate it into domestic legislation. The protocol is
reproduced as under:-
The President of the Family Division and the Honourable Chief Justice of Pakistan in consultation
with senior members of the family judiciary of the United Kingdom (“the UK”) and the Islamic
Republic of Pakistan (“Pakistan”), having met on 15th to 17th January 2003 in the royal Courts of
Justice in London, reach the following consensus:
(a) Desiring to protect the children of the of the UK and Pakistan from the harmful effects of
wrongful removal or retention from one country to the other;
IT IS AGREED THAT:
1. In normal circumstances the welfare of a child is best determined by the courts of
the country of the child’s habitual/ordinary residence.
2. If a child is removed from the UK to Pakistan, or from Pakistan to the UK, without
the consent of the parent with a custody/residence order or a restraint/interdict
order from the court of the child’s habitual/ordinary residence, the judge of the
court of the country to which the child has been removed shall not ordinarily
exercise jurisdiction over the child, save in far as it is necessary for the court to
order the return of the child to the country of the child’s habitual/ordinary
3. If a child is taken from UK to Pakistan, or from Pakistan to the UK, by a parent
with visitation/access/contact rights with the consent of the parent with a
custody/residence order or a restraint/interdict order from the court of the child’s
habitual/ordinary residence or in consequence of an order from that court
permitting the visit, and the child is thereby retained in that country after the end
of the visit without consent or in breach of the court order, the judge of the court
of the country in which the child has been retained shall not ordinarily exercise
jurisdiction over the child, save in so far as it is necessary for the court to order
the return of the child to the country of the child’s habitual/ordinary residence.
4. The above principles shall apply without regard to the nationality, culture or
religion of the parents or either parent and shall apply to children of mixed
5. In cases where the habitual/ordinary residence of the child is in dispute the court
to which and application is made should decide the issue of habitual/ordinary
residence before making any decision on the return or on the general welfare of
the child, and upon determination of the preliminary issue as to habitual/ordinary
residence should then apply the general principles set out above.
6. These applications should be lodged by the applicant, listed by the court and
7. It is recommended that the respective governments of UK and Pakistan give urgent
consideration to identifying or establishing an administrative service to facilitate
or oversee the resolution of child abduction cases (not covered by the 1980 Hague
Convention on the Civil Aspects of International Child Abduction).
8. It is further recommended that the judiciaries, the legal practitioners and the non8
UK-PAKISTAN SECOND JUDICIAL CONFERENCE HELD AT ISLAMABAD ON 22ND AND
23RD SEPTEMBER, 2003.
1. Raising public awareness of protocol, maintaining awareness and providing continuing
education to judiciary and practitioners involved in family/child cases.
2. Securing access to justice to ‘left behind’ parents including knowledge of their rights and the
opportunity to assert them.
3. To that end, instituting a system whereby the judge in each Province of Pakistan is tasked with
over-seeing the formation of a Committee to provide legal assistance to such parents.
4. Recognition of the importance of mediation within the extended family.
5. Recognition of the importance of liaison between Pakistan and the United Kingdom and, in
particular, the importance of using the liaison Judges who need to know about all relevant
cases which are pending or determined. The role of liaison Judge is to exchange orders by the
Courts of respective countries in relation to the cases covered by the protocol for information.
In case of breach of any such orders, further information is to be exchanged about those cases
for appropriate steps to be taken by them in their respective functions. This role of the liaison
Judge shall be given proper publicity.
6. Recognition of the importance of retaining judicial links between Pakistan and the United
Kingdom, suggesting that Judges of both the countries should meet from time to time to
discuss the working/implementation of the protocol, possibly through at least two Judges from
each country meeting every two years. Also keeping in regular contact using, if appropriate,
7. Recognition of the need to address the problems that arise upon relocation after the return of a
child to the country of his habitual residence. In particular, recognition of the need to afford
respect to any undertakings given to the Judge who ordered return or retention of a child.
8. Recommending the establishment of a Body in each country open to approach by an aggrieved
person in United Kingdom/Pakistan seeking legal assistance in cases relating to wrongful and
illegal removal of children.
The UK-Pakistan Protocol on Children Matters
Panel Session Meeting with UK-Pakistani Judiciary
Monday 13th February 2006
Royal Courts of Justice, London
Upon Chief Justice Iftikhar Muhammad Ch. and his delegation meeting with Lord Justice Thorpe,
Head of International Family Law, and other senior members of the UK judiciary;
The Chief Justice and other justices emphasized the risk of a legal challenge to the protocol and thus
the need to secure its future by incorporation into law by legislation. They further emphasized that in
their judgment, there is a need for appropriate measures by Government of the UK and Pakistan to
formalize the Protocol and incorporate it into domestic legislation where necessary.
2. Administrative procedures
The Chief Justice endorsed the Registrar’s view that clear administrative procedures were required in
order to initiate litigation in Pakistan following a reference to the liaison judge, especially as the court
has no jurisdiction suo motu. It was further agreed that administrative arrangements need to be put in
place in both the countries to facilitate the implementation of the Protocol.
3. Judicial Liaison
It was agreed that further information should be provided in the fax transmissions to Pakistan, for
example, details of families and believed whereabouts, including their telephone contact numbers and
4. Register of Specialist Lawyers
It was agreed that a Register of Specialist Children Practitioners in each of the Provincial capitals in
Pakistan would be compiled. A reciprocal list would also be supplied.
5. Register of Non-Government Organizations (NGOs)
It was agreed that Register of NGOs in Pakistan would be drawn up in order to facilitate the work of
UK based organizations working on child abduction cases. A reciprocal list would also be compiled
for the UK.
6. Malta Conference
It was agreed that the work of the forthcoming conference in Malta would be much strengthened by
the participation of Pakistan.
The Revised Brussels II Regulation
This is Council Regulation (EC) No.2201/2003 of the European Parliament which has effect from 1st
March 2005 (the Revised Brussels II Regulation). The Regulation will be applied to cases of parental
child abduction within the European Union and to the enforcement of Orders for contact or access with
the European Union
change which the Regulation makes is that it provides an opportunity for the left behind parent to litigate
the issue of residence/custody in his/her own country if a return order is not made. If the left behind
parent in this situation seeks and obtains an order that requires the return of the child, that order must be
enforced in the country in which the child is located notwithstanding the earlier non return order.
The European Convention
From 1st March 2005, this convention will only operate with countries which are not members of the
European Union. Applications from European Union countries will be dealt with under the Revised
Brussels II Regulation.
The European Convention is rarely used in abduction cases because the Convention only operates where
an order already exists. The Convention has more frequent application to the enforcement of access
Orders made in European Convention countries are recognized but must be registered before being
enforced. Enforcement may not necessarily follow immediately after registration. There are a number of
grounds on which enforcement can be opposed. These are set out in articles 9 and 10 of the European
How abduction applications are handled.
The Hague Convention, the European Convention and the Revised Brussels II Regulation are based on a
System of Central Authorities. Each member country appoints a Central Authority which functions as the
contact point for all applications under the conventions or the Revised Brussels 11 Regulation. A parent
whose child has been abducted from one convention country into the other convention country and is
retained there, application can be made to the central authority of the country in which they are living
and the application would be thereafter forwarded to the child Abduction and Contact Unit and if
required, the services of an experienced lawyer could be hired who would be responsible for:-
A. Taking the applicant’s instructions.
B. Assembling the evidence.
C. Filing affidavits of fact and about foreign law.
D. Instructing counsel and attending the hearing.
The lawyer/solicitor will offer obtain orders to protect the child immediately after the proceedings
start. These orders could include orders:-
Legal aid is available to applicants seeking the return of a child under the Hague Convention. The cost of
an application for the return of a child is often a matter of concern to parents. In most countries, no
payment for legal proceedings is required for applications made under the Hague Convention. For
example in U.S.A. legal aid is generally not available. Efforts are therefore made by the U.S. Central
Authority in cases of financial need, to provide legal representation for applicants either at a reduced rate
or free of charge.
As a matter of fact, expenses incurred when returning the child are not covered by the Hague Convention
nor by the Revised Brussels II Regulation but applicants may request that an order for travel costs be
made against the person who has removed/retained the child. The court will consider the request but is
not bound to make such an order.
Both the Hague Convention and the Revised Brussels II Regulation encourage the resolution of disputes
through mediation and facilitate the agreement between the parties and cross-border cooperation.
It is important to mention here that the establishing or enforcing rights of access to children under the
Hague Convention is limited. The reason for this is to found in the case of Re G (a minor) (Hague
Convention Access) [ 1993] 1 FLR 669 (UK) (Court of Appeal: 9th December, 1992). In this case the
Court of Appeal held that Article 21 of the Hague Convention (which is incorporated into English law by
Schedule 1 of the Child Abduction and Custody Act 1985) gives no power to a court to determine issues
or make orders, and that therefore those wishing to apply for access must apply for a “ contact order”
under the usual domestic law such as the Childrens Act, 1989. In England and in Pakistan, courts are
empowered to pass such orders under the Guardian and Wards Act.
Transnational Jurisdiction is exercised under the Rules of Transnational Civil Procedure.
The law requires that member countries of the Hague Convention must adhere to the decrees of one
another. Before a court exercises jurisdiction, it must determine that no other court has a superior
jurisdictional claim. A decree of another country will be upheld and given the res judicata effect if
rendered with subject matter and personal jurisdiction. Whether a particular jurisdiction’s act will be
given effect by another jurisdiction’s Courts, depends on the jurisdictional status of the issuing court. A
court making this determination must ensure that due process was met when the underlying order was
The court where the complaint is lodged must decide the case in accordance with the convention only as
to determining wrongful removal or retention, not the custody issue. The court will then order the return
of the child unless an exception under the Hague Convention applies. It is the exceptions that have
produced judicial interpretations as to how they should be interpreted or decided pursuant to the Hague
Convention. The exceptions are as follows:
• if more than one year has passed and the child has ‘settled in the environment’
• the person, institution or other body responsible for the care of the child failing to
exercise the custody rights at the time of removal or retention, or consenting to or
subsequently acquiescing in the removal or retention;
• there exists a grave risk that a return at this stage would expose the child to physical
or psychological harm or otherwise place the child in an intolerable situation.
The Hague Convention ceases to apply to a child who has attained the age of eighteen. Article 12 o the
Hague Convention provides that a child that has been wrongfully removed or retained must be returned to
the habitual residence of the child unless an exception applies; it is also required that proceedings be
brought within one year of the removal and the court in analyzing this provision must first determine the
“habitual residence” and then determine if any of the exceptions apply. The Hague Convention does not
define ‘habitual residence” as it varies subsequent to the consideration of all facts.
The Hague Convention seeks to provide a remedy for international child abductions and to restore the
“factual” status quo which is unilaterally altered when a parent abducts a child. The United States ratified
the Convention in 1986 and became a contracting state in 1988 through the federal implementing statute
ICARA which confers concurrent original jurisdiction in state and federal courts over actions arising
under the Convention. Jurisdiction is granted only as to the merits of the abduction claim. The statute
does not grant jurisdiction to decide the underlying custody dispute. Under the Convention, each country
has a Central Authority which is responsible for discharging the duties imposed by the Convention and
operating with the Central Authorities of other countries to secure the return of children.
Perhaps, the appropriate model would be to avoid the expansion of the Convention’s objectives by
remanding the case to the court of appropriate authority for resolution of any underlying custody issue.
That is, if there is a material dispute as to whether a grave risk of harm exists, then the petitioner should
be required to first exhaust remedies before a court of appropriate jurisdiction as a prerequisite to seeking
remedies available from the Convention. Once a petitioner has obtained judgment on the custody issue,
the court should give full faith and credit and/or comity to the appropriate legal determinations. This
Rule(s) Subject-Matter Comment.
1. Jurisdiction. Provides for the acquisition and exercise of jurisdiction over
foreign defendants when there is a sufficient connection
between the forum and either the transaction or the parties to
it, and the exercise of same when not “manifestly
inappropriate” to do so.
5 and 6. Joinder /Addition, Cross
Procedure and Amicus Curiae Intervention.
Provides for the joinder or addition of, or the
commencement of cross claim proceedings against, any
person amenable to jurisdiction and ‘substantially
connected’ to the subject matter of the proceedings.
Provision for amicus curiae intervention is made in
anticipation of proceedings giving rise to questions of
international trade custom.
7. Service of process. Provides for the defending party to be given notice of the
proceedings either by act of the moving party (as in civil law
systems).The originating document must specifically advise
that the rules are being invoked.
9. Composition of the
It is left to forum law to determine the composition of the
court, thus accommodating procedural idiosyncrasies such as
the civil law’s preference for collegiate courts at first
instance and jury trial in common law systems.
10. Impartiality of the Court. The decisional authority (judge, referee, arbitrator, and so
forth) must not hear a case if there are “reasonable grounds
to doubt’ his or her impartiality. Parties have the right to
challenge the decisional authority’s ability to sit.
Pleadings. Provides for the commencement of proceedings by statement
of claim, in which the moving party must plead specifically
to all material facts and (in a departure from the traditional
common law position) outline both the evidence supporting
those factual assertions and the conclusions of law which
flow from them. Claims not traversed in the statement of
Defence are deemed admitted.
14. Amendments. Allows for parties to amend their pleadings when to do so
“does not unreasonably delay the proceeding or otherwise
result in injustice”.
15. Default judgment and
Provides for the entry of judgment against a defending party
in default of appearance or defence, or the dismissal of
proceedings upon the moving party failing to prosecute with
“reasonable efficiency.” The entry of default judgment upon
the former ground is conditional upon the court first being
satisfied that it has jurisdiction over the defending party.
16. Settlement. Provides for a formalized, without prejudice offer and
counter offer procedure.
Provides for the Court, by the granting of “provisional
relief”, to “restrain or require conduct of a party or other
person when necessary to preserve the ability to grant
effective relief by final judgment or to maintain or otherwise
regulate the status quo”.
18. Case Management. Provides for the close case management of proceedings via a
series of pre-trial conferences similar to the Federal court of
Australia’s ‘individual docket system’. Interestingly from a
Provides that relevance is to be the fundamental touchstone
of admissibility, and adopts the civil law practices of court
rather than party appointed experts.
27. Privilege. Prescribes client legal and without prejudice privileges as of
right, leaving forum law to determine the extent of any
further confidentialities (for example, doctor patient or
28. Burden of proof. Provides that “Party has the burden to prove all the material
facts that are the basis of that party’s case.
29. Final Hearing. Provides for a concentrated, plenary final hearing and a right
of cross examination in the manner of common law systems.
Following the civil law tradition, however, the Court as well
as the parties may examine witnesses.
32. Costs. Provides that the successful party will ordinarily be entitled
to an award of “all or a substantial portion” of its
“reasonable costs. “ This is in contrast to the usual United
States practice of each party bearing its own costs.
33. Appellate Review. Provides for a right of appeal against both final judgments
and, with leave, interlocutory orders.
35. Domestic Enforcement. Provides that a final judgment is enforceable immediately
and prescribes mechanisms by which the successful party
may obtain satisfaction.
Provides merely that final judgment in a proceeding
conducted in another forum in substantial compliance with
these Rules must be recognized and enforced unless
substantive public policy requires otherwise”.
1. Children come first and therefore, all Nations of the World must protect them from all sorts of
exploitation, whether it is abduction, trafficking, torture, assault, abuse or prostitution. To deal
with the problem, novel responses by both law enforcement agencies and legislators are
2. All countries of the world put their signatures on Hague Convention on the Civil Aspects of
International Child Abduction, 1980 in the larger interest of protection of children,
irrespective of any political reservations. Hague Convention Bills, 1980, 1996 and 1998
should be given the force of law in the State. The Convention when in force, would determine
which Civil Law should apply in cases of guardianship, custody and access to children who
have links with the jurisdiction of two or more contracting states. It would also determine the
applicable court to exercise jurisdiction in such cases.
3. In order to protect a child from all sorts of exploitation, there should be a universal legislation
protecting the children of the world below the age of eighteen years. (A child in International
5. There is a need to modernize the Juvenile Courts and it must be done according to
international standards and a new case management tracking system be put in place that would
enable the courts to provide better information in future about the wrongful retention of
children in violation of court orders.
6. Information sharing and more consistent practices among signatory countries be promoted and
fostered in order to interpret and implement the Hague Convention in its true perspective.
Access issues should also be recognized and children must have an open and meaningful
access to both parents.
7. Left behind parents should be provided with knowledgeable and affordable legal assistance,
judicial education, resource programs and their application may be processed expeditiously in
order to achieve success in locating abducted children.
8. To achieve better results from the convention, a strong and regular coordination amongst the
compliant countries and the non compliant countries, with respect to sharing of their
problems encountered during getting the convention implemented/followed should be adopted.
Major Treatises/Convention/Web sites.
– Beaumont, P.R. The Hague Convention on International Child Abduction. Oxford; New York:
Oxford University Press, 1999.
– Doek, Jaap and Hans van Loon, eds. Children on the move: how to implement their right to
family life. The Hague, Bostonp: Martinus Nijhoff, 1996.
– American Bar Association. International Child abductions: a guide to applying the Hague
Convention, with forms. 2nd ed. Chicago, III. The Association, 1993.
– North American Symposium on International Child abduction (1993 Washington, D.C.) How
to handle international child abduction cases. (Washington, D.C. ) American Bar Association,
– Canada. Parliament. House of Commons. Standing Committee on Foreign Affairs and
International Trade. International child abduction: issues for reform: fourth report of the
Standing Committee on Foreign Affairs and International Trade. Ottawa): The Committee,
– Common Wealth Secretariat. Explanatory Documentation prepared for Common Wealth
Jurisdictions, 1997 in the light of Hague Convention. U.S. Department of State, the office of
– Silberman, Linda. “The Hague Children’s Conventions: The Internationalization of Child
Law,” 9Hague Academy Lectures, summer 1999, to appear in Recueil des Cours).
– “The Hague Child Abduction Convention turns Twenty: Gender Politics and Other Issues, “33
N.Y.U.J. Intl. L.& Politics 221 (2000).
– Declaration on Social and Legal Principles relating to the Protection and Welfare of Children,
with Special Reference to Foster Placement and Adoption Nationally and Internationally of 3
– Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to
Adoptions of 15 November 1965, Convention 13.
– Hague Convention on Protection of Children an Co-operation in respect of Intercountry
Adoption, of 29 May 1993, Convention 33, text and related documents and reports at
– Council of Europe, European Convention on the Adoption of Children of 24 April 1967, ETS
– Inter-American Convention on Conflict of laws Concerning Adoption of Minors of 24 May
– Hague Convention on the Civil Aspects of International Child Abduction of 25th October,
– International Social Service, Geneva. Internal and intercountry adoption laws. The Hague:
Kluwer law International, 1996-(looseleaf). http:// http://www.11rx.com /features/int_htm.
Assistant Advocate General (Punjab)
Advocate Supreme Court of Pakistan