PAKISTANI authorities were outraged, embarrassed and eager to help when on March 3, 2010, robbers abducted five-year-old Sahil Saeed, a British national, from his home in Jhelum. The abduction itself, however, was straightforward the family was the victim, the robbers villains and their motive money.

Would the authorities have sprung to action with the same alacrity if a parent had abducted Sahil? Certainly, in such a scenario there would have been no clear demarcation of victim from villain and plans for recovery of the child would have been accordingly muddled.

One factor, however, would have been constant in both scenarios an innocent child would have been used as a pawn in a game of adults! This article examines the legal framework that may be mobilised in case a child is abducted by a parent, particularly across nations, and explores the possible safeguards available to a child in such a situation.

Although the Pakistan Penal Code recognises kidnapping (whether from legal guardianship or from Pakistan) and abduction as crimes, the superior courts of Pakistan have consistently interpreted the relevant provisions to exclude abduction by a parent, particularly when the abducting parent is the father, because in their view “...father of a child being always a natural guardian along with the mother, can never be ascribed or attributed the offence of kidnapping of his own child....” (Muhammad Ashraf v. SHO and others 2001 P Cr. L J 31). While this view may exonerate the father from penal consequences it cannot protect him from actions for the production and custody of the child.

A case may be lodged for the production of a child under section 491 of the Criminal Procedure Code and for custody under section 7 or 25 of the Guardians and Wards Act, 1890. The Act does not assume either parent as the appropriate guardian and confers upon the district court the power to appoint a guardian most capable of ensuring the 'welfare' of the child.

Pakistani courts have demonstrated considerable sensitivity for the child's emotional and financial well-being in interpreting the concept of 'welfare', and while upholding these principles have at times granting custody even to a grandparent if such grandparent appears better placed to ensure the child's welfare.

Custody matters become complicated however when the child is born of a mixed marriage. In 1983, the international community, recognising the possibility of transnational abductions of children of mixed marriages as well as the inadequacy of domestic laws to deal with such situations, ratified the Convention on the Civil Aspects of Child Abduction. The Convention, while it recognises that the principle of 'welfare' is paramount in considering any question of child custody, stipulates that the abducted child be returned to his country of habitual residence as the courts of that country are best suited to determine the issue.

Pakistan has chosen not to ratify the Convention. This however does not mean that the issue of transnational abductions is not relevant to Pakistan. In the last few years, high courts throughout Pakistan have dealt with cases involving children from mixed marriages between Pakistanis and British, Canadian and French nationals. While these cases appear to have been resolved judiciously, they represent relief for a very small fraction of parents who had the capacity to approach Pakistani courts even when they themselves were residents of foreign jurisdictions. The problem of child abduction is indeed far graver than the small number of cases suggests, as are the obstacles created by a foreign resident parent's lack of knowledge of the legal process in Pakistan.

The problem of child abduction is most acute between the UK and Pakistan due to the high percentage of marriages between Pakistani and UK nationals whether residing in Pakistan or the UK. Seeing the pain and anguish caused to children who become victims of such cases, the superior judiciary of the two countries took it upon themselves to tackle this issue and in January 2003 signed the UK Pakistan Judicial Protocol on Children Matters in order to establish a formal mechanism that aggrieved parents could invoke in case a child of a mixed marriage was abducted from one to the other country.

Like the Convention, the Protocol stipulates that the courts of a country in which the child is habitually resident should decide the issue of custody. The Protocol adds that this decision should be made without regard to the nationality, culture and religion of either parent. The Protocol is unbiased and allows parents to invoke the jurisdiction of Pakistani courts if the child is habitually resident in Pakistan and of UK courts if UK is the child's normal home. The guiding principles of the Protocol are safeguarding the interests of the child and preventing an abducting parent from taking advantage of his illegal act and dictating the jurisdiction in which the question of the child's welfare may be decided.

Despite voluntarily accepting the Protocol, Pakistani judiciary has remained reluctant in following it. In a departure from this judicial silence, Justice Saqib Nisar in his judgment in what is known as “the Misbah case” followed the Protocol in principle, however he too did not actually refer to it. It is perhaps unfortunate from a purely legal perspective that the parties arrived at a compromise in an appeal before the Supreme Court and the Protocol did not become a binding precedent for all other courts in Pakistan.

Judges in Pakistan may well argue that the Protocol is not necessary because they are fully capable of determining the welfare of a child. While such a claim is indeed borne out by numerous judgments, it fails to take into account that the issue here is not of the competence of judiciary but of creating certainty in the legal system by dealing with cases between Pakistan and the UK consistently in accordance with the Protocol and in fact extending the principles to any transnational abductions.

The issue is also about providing a level playing field to both parents who are equal stakeholders in the welfare of their child rather than making it difficult, if not impossible, for one parent to approach the courts. Most importantly, the issue is of rescuing the child from being a mere pawn in the parental tussle, and recognising him as an individual who has the legal right to have his welfare determined in accordance with the laws, standards and values of the country in which his parents — until their marital discord led them to think otherwise — themselves chose to raise him.

The writer is a barrister.

amber.darr@gmail.com