..::Child Abduction and Transnational Jurisdiction

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”.

(Moore, 1992)

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

divorce proceedings.

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

child.

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

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PARENTAL CHILD ABDUCTION

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.

INTERNATIONAL CHILD 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

be recognized.

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

law.

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

responsibility agreement).

The orders of the court include residence orders, which settle the issue of custody, and contact orders

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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

offence.

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

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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

inextricably intertwined.

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.

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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

to France.

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

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Outside Europe

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

account.

(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:

WHEREAS:

(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;

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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

residence.

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

marriages.

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

decided expeditiously.

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.

AGREED GUIDELINES

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,

video link.

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;

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1. Legislation

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

email addresses.

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

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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.

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

Convention.

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:-

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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.

MEDIATION.

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 JURISDICITON.

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

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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

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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

Claim/Third Party

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

Court.

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.

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and 13.

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

Dismissal.

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.

17 and

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Coercive Interlocutory

Orders.

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

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25 and

26.

Admissibility of

Evidence.

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

accountant client).

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.

36. International

Enforcement.

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”.

RECOMMENDATIONS.

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

required.

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

15

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,

1993.

– 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,

1998.

– 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

16

– 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

December 1986.

– 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

http://www.hcch.net/e/conventions/menu 33e.html

– Council of Europe, European Convention on the Adoption of Children of 24 April 1967, ETS

No. 58.

– Inter-American Convention on Conflict of laws Concerning Adoption of Minors of 24 May

1984, B-48.

– Hague Convention on the Civil Aspects of International Child Abduction of 25th October,

1980.

– International Social Service, Geneva. Internal and intercountry adoption laws. The Hague:

Kluwer law International, 1996-(looseleaf). http:// http://www.11rx.com /features/int_htm.

By

Afshan Ghazanfar

Assistant Advocate General (Punjab)

Advocate Supreme Court of Pakistan

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