Pakistan

Parental abduction is legal

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Table of Contents

Introduction

Background

Pakistan continues to fail to protect its children. According to a report, as many as 3832 children were sexually abused in Pakistan in 2018 – an 11% increase from the prior year. This trend did, however, ‘improve’ in relative terms in 2019. Even after this so-called improvement, as many as eight children faced sexual abuse every day.   Other child rights abuses that were reported in 2018 include 778 abductions, 405 missing children, 348 sodomy cases, 279 rape cases, 210 attempted rape, 205 gang sodomy, 115 gang rape, and 104 cases of child marriage. The real numbers are likely much higher as for many reasons these abuses are often not reported to the police.   

There has never been a proper system to respond to incidents of missing children in Pakistan. However, an incident in 2018 awakened the national conscience when a six-year-old girl, Zainab, was kidnapped before being raped and murdered in the suburb of Lahore.  

However, Zainab’s incident is the tip of the iceberg. Each year, thousands of children go missing, mostly kidnapped by strangers, and while parental abductions also take place, the latter is not considered a crime in Pakistan. Since it is not a crime, there is no systematic data available in Pakistan on the issue.

Call To Action

Parental abduction must be criminalized.

Both the local and national governments must spread more awareness on parental abduction and its effects on children. This cannot continue to be considered a family issue that no one should intervene in. 

Family courts need to speed up divorce proceedings and create a more amicable environment during these proceedings to encourage co-parenting and a positive outcome for children. Shared custody should be the default.

Legislation making parental abduction a crime must be passed. The government needs to develop preventive measures against parental abduction – such as requiring both parents to apply for a minor passport or launching a system to alert border authorities.

Family Law

Family matters, including divorce and child custody, are generally considered personal issues. Many people in Pakistan do not seek legal remedies as they don’t realize there is one available to them. The government, both federal and the provinces, should create awareness among the masses regarding parental abduction and its effects on the minor.   Multiple studies claim that divorce affects the child, causing him or her physical or mental trauma and making him more vulnerable. More research is required in Pakistan to see the effects of divorces and the subsequent custody feuds for the child taking place between the parents.  

The increased divorce rate in Pakistan has seen a substantial rise in child custody battles. While the separating couples seek their peace from the outcome, the child has to bear the brunt of the effects of a broken family.   According to a legal expert Muhammad Abuzar Gul, child abuse in Pakistan has partly to do with poverty and partly to the vulnerabilities he or she inherits from a broken family. Fahad Ahmad Siddiqi, another legal practitioner, shares his professional experience in the following words, “a huge number of such children suffer from personality problems, anti-social traits, and criminal acts, including drug addiction.”  

Considering the adverse effects the delayed divorce proceedings could have on the child, the government should legislate, binding family courts to speed up the matters relating to the separating couples. Besides, the government should also make stricter laws aimed at addressing the parental abduction issue.   The law currently binds the father to pay a fixed monthly fee for each child regardless of his income. The government should review this policy as well and instead make sure the fee should either be based on the father’s social status or be paid by the government to the mother as child support.  

Though Pakistan joined the Hague Convention on the Civil Aspects of International Child Abduction in 2017, there has been no legislation in the parliament to address the issue. In the case where a Pakistani parent removes or retains his/her child from another parent within the boundaries of Pakistan, the affected parent may seek a legal remedy for the child’s custody after the divorce or separation under The Guardian’s and Wards Act 1890.  

The courts are empowered under 491 CrPC (Code of Criminal Procedure, 1898) and Article 199 of the Constitution to initiate proceedings and decide matters in these cases. The court’s primary consideration is the child’s welfare.   While deciding child custody cases, the Pakistani courts traditionally seek to determine which parent should be granted the minor’s custody. Most often, one parent is granted the child’s custody at the expense of the other. There has been no concept of shared custody among divorcing parents. The resulting situation usually causes custody battles, which can easily lead to parental alienation. However, because of conservative values and religious lobbying that considers the parent-child relationship a completely private matter, the government is not inclined to push for change. 

Until recently, shared custody had been a foreign idea in Pakistan. But over the past few years, the concept has been gradually introduced by the Supreme Court through its judgments. Earlier, the non-custodial parent had a few visitation hours in a month. But following the top court’s directions, the father’s visitation rights have been extended. Now, the father can have the child on two weekends (from Friday to Sunday) each month; on birthdays, for one or two days; and on two Eid festivals for a few days. In addition to the changing national behavior toward child rights, recent years have seen Pakistan’s progress toward child welfare as it has become a part of the international body working for the recovery of children abducted abroad.

Parental Abduction

Domestic   There is no systematic study or data available regarding parental abduction in Pakistan. The major reason for the dearth of data is mainly due to the fact that parental abduction is not perceived in the way it is understood in the west. Until recently, it has been an alien concept in the traditional Muslim-dominated country. Even the courts have rejected the concept.   In 2001, the High Court of Lahore decided in a judgment that “the father of the child is always a natural guardian along with the mother. He can never be ascribed or attributed the offense of kidnapping his own child… the only fetter placed upon the right of the father to the custody of the child is that when he takes the child from the mother’s custody for a purpose recognized in law as immoral or unlawful, in such a situation the removal of the minor would amount to an offense.”   

Still, the court has the ultimate authority to decide in such cases, from ordering the child to be produced before it to grant custody to the father or mother and to order detention or punishment of the offending parent.   Following a divorce in Pakistan, custody is mostly granted to the mother, and the separating couple is guided to seek a legal remedy through family courts. The respective courts are supposed to decide under a child custody law, which, according to legal experts, has many gray areas.   International Parental Abduction   In 2016, Pakistan signed the instrument of accession for the Hague Convention on the Civil Aspects of International Child Abduction. Before that, there was no proper mechanism for international parents to seek systematic remedy against the child’s removal to Pakistan.  

Unfortunately, there are no basic statistics regarding such transnational parental child abduction except for the data between Pakistan and the UK. According to the existing data, Pakistani parents (usually the father) have occasionally been found to remove or retain the child on “moral grounds.” In January 2003, the higher courts of Pakistan and the UK authorities signed the UK-Pakistan protocol, a mechanism aimed at dealing with issues relating to parental abduction by seeking a safe return of the abducted child to his/her habitual country.  

More recently, the forceful removal of the children into Pakistan has become a major concern for the transnational parent. The trend has witnessed an increase over the years as a result of multicultural and multinational marriages as more and more Pakistanis (usually male) migrated to the western countries for a better future. Due to a higher divorce rate in such marriages, the separation leads to a subsequent increase in transnational parental child abduction.  

Before Pakistan’s formal joining of the Hague Convention in 2017, the country’s law allowed a legal parent to bring in or take out a child to another country without the consent of the other legal parent if the intention is not in bad faith. Such disputes have been dealt with as matters of custody and not abduction. Most of these disputes were reported in connection to Pakistanis living in the United Kingdom. In 2008, as many as 11 cases of forced removal to Pakistan were reported in Britain. Around 24 cases were reported between April 2009 and March 2010, and 55 cases were registered in 2011.  

Until recently, the legal remedy available for an affected parent to claim custody from the abducting Pakistani parent was Article 199 of the Constitution of Pakistan. According to a Supreme Court advocate, “in case a foreign parent (often a mother) seeks the judicial remedy following the Pakistani parent having abducted or retained the child, she may do so under Article 199 of the Constitution of Pakistan. The court will determine whether or not the detention is lawful after recovering the child from the accused.”  

The court may appoint the court officers, or police, or any authority it deems appropriate for the child’s recovery.

Parental Alienation

Child custody laws in Pakistan require reform as they indirectly encourage parental alienation. Current precedence means that if the child is a minor boy, the mother will be given custody if he is below seven; and the girl, until she attains puberty. The father cannot be given custody in these cases. If the mother is not deemed fit to take care of the child or passes away, the child’s maternal grandmother is often granted custody rather than the father.   

In cases of a non-Muslim mother married to a Pakistani man, custody usually goes to the father. This can also be the case for a foreign yet Muslim mother who wants to return to a non-Muslim country – the court may rule that the environment in which the child would be raised is not conducive to Islam and custody granted to the father. Mothers are always granted custody of children born out of wedlock.    

Non-custodial parents are often given very limited time with their children – as little as two hours a month. This may mean that the child grows up without the non-custodial parent very present in his or her life.   It is possible for a custodial parent to further limit interaction with the non-custodial parent by producing fake medical certificates. Meanwhile, the custodial parent may have all the time in the world to brainwash the child’s good memories associated with the non-custodial parent. It tends to create a feeling in a child’s mind for the distant parent called Parental Alienation Syndrome.  

Little data and information about the true picture of parental alienation in Pakistan are available. 

Prevention

Since there are no government preventive measures in Pakistan, it is advised that parents concerned about parental abduction:

  • – Start collecting information about the child and the abducting/retaining parent that may be useful at a later date such as name, date of birth, nationality, physical description, etc. 
  • – Make sure to have copies of important documents such as birth certificates and marriage certificates. 
  • – Keep copies of any communication between yourself and the other parent that is conducted through email, text message, or any sort of instant messenger. These conversations could be used as evidence if needed. 
  • – If possible keep open channels of communication with the other parent and with members of their family. 

Missing Child

  • If you suspect your child has been kidnapped or abducted, call the police on their emergency number by dialing 15.
  • Immediately report the missing child through Zainab Alert App, a recently launched app by the federal government that has been integrated with district police officers across the country.
  • In case you suspect an international parental abduction, you can visit the Federal Investigation Agency’s site http://www.fia.gov.pk/en/contact.php and register your complaint by calling on any relevant numbers provided on the site.
  • Contact your lawyer. A list of English-speaking lawyers in Pakistan can be found here. You may also contact the Pakistan Lawyers Foundation – a not-for-profit organization that provides legal representation to those who cannot afford it in the fields of human rights, women’s rights and the rule of law.
  • If you suspect parental abduction, you can file a case with the family or civil court. If a Pakistani parent disregards the court’s orders under Section 491 of the CrPC or Section 7 and 25 of the Guardian and Wards Act, the court may order for the arrest and detention of the guilty parent.
  • You can also report your missing children on the Ministry of Human Rights helpline, 1099, or visit their website for further assistance.
  • If your child has been abducted to a country that has signed the Hague Convention, you can file an application requesting the return of the child to Pakistan or request access to the child. You can call 1099 or visit the Ministry of Human Rights’ website for further assistance. 
  • If you are a UK citizen or your child was abducted from the UK, you may take specific measures under the UK-Pakistan Protocol.

Credit & Contribution

Thanks to Abubakr Farrukh for the contribution in producing this country page.

Legal Disclaimer

The materials available on this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.

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