FCC tightens rules on child custody
Says wrongfully removed children should be returned to state of habitual residence
The Federal Constitutional Court (FCC) has implemented new guidelines for Pakistani courts handling child custody disputes involving minors with parents from different countries. The three-judge panel, led by Chief Justice Amin-ud-Din Khan, outlined the criteria for returning a child to their habitual residence in cases of wrongful removal or retention. The eight-page judgment, penned by Justice Ali Baqar Najafi, explained when foreign judgments can be acknowledged by Pakistani courts.
When dealing with custody disputes between citizens of different nations, the court urged Pakistani courts to assess the jurisdiction of the foreign court issuing the order. They must also determine if the judgment was based on merit, in accordance with private international law, and not obtained through fraud or violation of natural justice.
The FCC emphasized that a child would be considered wrongfully removed or retained if it violated the law, a judicial/administrative decision, or a lawful agreement of the state where the child habitually resided before the incident.
According to the ruling, a court should only proceed with assessing custody rights after receiving notification from judicial or administrative authorities about the wrongful removal or retention of a child. Only then should they decide on the merits of the case, provided the child is not to be returned under the 1980 Convention on the Civil Aspects of International Child Abduction.
Clause 6-A of the West Pakistan Family Courts Act permits local family courts to manage child return matters under the Hague Convention on the Civil Aspects of International Child Abduction, 1980. The convention aims to harmonize court decisions across different contracting states to prevent conflicting rulings.
The court cited Article 3 of the convention, stating that a child's removal or retention is wrongful if it infringes upon the custody rights ascribed to a person under the law, judicial or administrative decision, or lawful agreement of the state where the child habitually resided before the removal or retention. The judgment highlighted that these custody rights must have been genuinely exercised at the time of the removal or retention, either jointly or alone.
Written by urgent.news from The Express Tribune - Pakistan's reporting — not their text. Machine-written — may contain errors; check the original before relying on it.
