PAKISTAN AND THE HAGUE ABDUCTION CONVENTION: A NEW CASE AND CONTINUING CONFUSION

The Federal Constitutional Court of Pakistan has issued an important – but flawed – ruling on the Hague Abduction Convention.

I have written about Pakistan and the Hague Abduction Convention and specifically about the 2024 decision of the High Court of Sindh in Shaikh v. Shahani, concerning a child who was abducted from North Carolina to Karachi, Pakistan, in violation of an order of a court in North Carolina, where the parties and child then resided. In that case, the High Court of Sindh ordered the child’s return in a guardianship case that the abducting mother had commenced in Pakistan shortly after the abduction. The return was not based on the Hague Convention but on the enforcement of a final North Carolina custody order.

Surprisingly, in March 2026, long after the child was returned to North Carolina in compliance with the 2024 order, another judge in the Sindh High Court overturned that order and initiated contempt proceedings against the father for failing to return the child to the mother in Pakistan.

Pakistan’s Federal Constitutional Court has now (September 2026) set aside the High Court’s March order, holding that the terms of the 2024 order had attained finality and had already been implemented. Muhammad Faraaz Shaikh & another v. Javeria Shahani & others (F.C.P.L.A. No. 1183 of 2026).

The Constitutional Court then discussed the proper role that Pakistani courts should take when handling international child custody cases. Unfortunately, the Court did not clearly delineate the fundamental distinction between a child custody case and a case that is brought under the Hague Abduction Convention, even though the Convention requires that Convention cases are certainly not custody cases.

The Court then concluded by stating that, in custody cases concerning a child who is removed or retained from a Contracting State and brought into another Contracting State, it will be expedient for the courts and the concerned authorities to take into account certain guidelines “to avoid conflict between the judgments amongst the Contracting States.”

The guidelines listed by the Court are as follows:

“a. while dealing with the dispute of custody of the minors between the parties of a different citizenship of countries the court shall consider the jurisdiction of the court which has given an order, whether on merits, and in the proceedings not against the rules of Private International law in which law of Pakistan was recognized, and the judgment was not procured against the principal of natural justice or by fraud,

b. the removal or retention of a child would be wrong where it is in violation of law, judicial or administrative decisions or a lawful agreement of a State where the child was habitually residing immediately before removal or retention,

c. unless the child is found settled, he is to be returned to the State where he was habitually residing, and

d. after receiving such notice from the judicial or administrative authorities, the court shall not decide the case on merits on the rights of the custody unless it is determined that such child is not to be returned under the Convention on the Civil Aspects of International Child Abduction, 1980.”

Alas, the blanket statement in Guideline “c,” that a court need not return an abducted child “if the child is found settled,” is absolutely incorrect.

Article 12 of the Convention provides that the fact that a child has become settled in a new environment after a wrongful removal or retention cannot justify not returning the child unless “at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention.” Accordingly, unless corrected, the Guideline to lower courts in Pakistan that they should not return abducted children who have become settled in Pakistan will likely undercut all efforts to cause Pakistani authorities to comply with the Convention and will likely encourage abducting parents and their attorneys to take all possible steps to delay the final resolution of Convention cases in Pakistan so that children can be shown to have become settled in Pakistan.

It is also most unfortunate that the Constitutional Court did not more definitively distinguish between child custody cases and Hague Convention cases, which will surely lead to continuing confusion in the resolution of child abduction cases in Pakistan.