The UK Pakistan Protocol on
Children Matters
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UK-Pakistan
Judicial Protocol on Children Matters
The
President of the Family Division and the Hon. 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:
• Desiring
to protect the children of the UK and Pakistan from the harmful effects of wrongful
removal or retention from one country to the other;
• Mindful
that the UK and Pakistan share a common heritage of law and a commitment to the
welfare of children;
• Desirous
of promoting judicial cooperation, enhanced relations and the free flow of information
between the judiciaries of the UK and Pakistan; and
• Recognising
the importance of negotiation, mediation and conciliation in the resolution of
family disputes;
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 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.
3. If a
child is taken from the 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 retained in that country after the end of the visit without
the 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 an application is made should decide the issue of
habitual/ordinary residence before making any decision on the return or 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 the 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
nongovernmental organisations in the UK and Pakistan use their best endeavours
to advance the objects of this protocol.
9. It
is agreed that the UK and Pakistan shall each nominate a judge of the superior
court to work in liaison with each other to advance the objects of this
protocol.
Dame Elizabeth Butler-Sloss,
DBE
President of the Family Division of the High
Court of England and Wales
The Hon. Mr. Justice Sh. Riaz Ahmad
Chief Justice of the Supreme Court of
Pakistan
Supplemental Judicial Guidelines on
UK-Pakistan Protocol
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.
Dame Elizabeth Butler-Sloss,
DBE
President of the Family Division of the High
Court of England and Wales
The Hon. Mr. Justice Sh. Riaz Ahmad
Chief Justice of Pakistan Supreme Court of
Pakistan
The Hon. Lady Anne Smith
Supreme Court of Scotland
The Hon. Mr. Justice Gillen
Family Division of the High Court of Northern
Ireland
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