Lower Tier Members of the Hague Club?


Elisabeth Andrews, Pupil Barrister at 4 Paper Buildings, considers the difficulties faced by countries aiming to become new members of the Hague Convention 1980 and what influence Pakistan’s accession may have in terms of encouraging other South Asian and Muslim countries to follow suit.

Elisabeth Andrews, Pupil at 4 Paper Buildings

On 22 December 2016 Pakistan became the 96th signatory to the Hague Convention of the Civil Aspects of International Child Abduction 1980 (‘the Convention’) and simultaneously became the first South Asian country to be so. The Convention came into force in Pakistan on 1 March 2017. One year on, one might wish to look back and consider the difficulties faced by countries aiming to become new members of the ‘Hague club’ and what influence, if any, Pakistan’s accession may have in terms of encouraging other, particularly other South Asian and Muslim countries, to follow suit.

Pakistan’s accession will have come as welcome news to the Pakistani diaspora, which includes the 1.17 million British Pakistanis in the United Kingdom. This is particularly so given that unilateral parental removals between the United Kingdom and Pakistan, along with stranded spouses, frequently rank as one of the most common abduction scenarios. The most recent research on this was in 2011, when there were 55 such cases1(which was about one tenth of incoming cases in the High Court).

Prior to Pakistan’s accession, reliance was placed upon the ‘UK-Pakistan Protocol on Child Matters’ of 2003, which, of course, does not have the force of law but provides guidance on how to handle such cases in line with the principles of the Convention. Many states attempt to benefit from this protocol system. However, the success of such protocols depends on a relationship of confidence and trust between the two states concerned and, as Gosselain notes, the heavy reliance on cooperation and goodwill means “bilateral conventions in this field operate with difficulty“2. One example of this in particular is the Swedish-Tunisian protocol, under which none of the nine cases falling within its remit could reach successful outcomes in terms of contact through negotiations.3 The UK-Pakistan protocol’s effectiveness was greatly hindered by the fact the protocol was not incorporated into Pakistani law in any meaningful way. A particular challenge for incorporation was that Pakistan operates under Shari’ah law, meaning the creation of supporting legislation would be hugely difficult due to conflicts between the principles underpinning the Convention and those that underpin Shari’ah law.

It also cannot be ignored that there were far more returns from Pakistan to England under the protocol than the other way around.

This highlights a major hurdle for the Convention to overcome should further South Asian and Muslim majority states become signatories. Indeed, Pakistan’s accession marked, at the time, only the fourth Muslim country to become a signatory. Tunisia has recently become the fifth, with the Convention entering into force on 1 October 2017. Saudi Arabia, UAE and countries of this ilk are yet to become involved in Hague Convention discussions.

Cultural and religious differences present a great challenge, particularly when, as a consequence, one state’s legal system operates in such a vastly different way from the other relevant state.

An example of this is found in states operating under Shari’ah law, where there is little separation of religion, legal and moral guidance. As such, for example, the best interests of the child tend to be determined by reference to religious and social values, with the child to be raised in accordance with Islamic faith.

Principles of child custody vary greatly also. For example, Shari’ah law includes the notion of Hidana, a form of Guardianship, under which children remain under the care of the Hidana until a particular age (frequently between 9 to 15 years old depending on the state).4 Given that a fundamental aspect of the Convention is that there has been a breach of rights of custody, conflicts in this notion could prove hugely problematic. From the Shari’ah state’s point of view, implementation of the Convention could lead to outcomes in direct contradiction with Islamic law.

One state that has been debating signing the Convention for over 10 years is The Republic of India. An idea of public and professional attitudes towards the Convention can be gathered from local media as well as government websites. Some legal professionals speak of concerns of the Convention’s overly authoritarian nature and the fact it could lead to compelling mothers fleeing bad marriages to return.5 Commentary also notes the cultural view that parents, due to being the natural guardians of their children, cannot be abductors of their own child.6

Aside from the cultural obstacles, there are also administrative ones. Countries, such as India, who are yet to sign up to the Convention, will have to ensure that as part of the ratification process they have laws compliant with the Convention. There is therefore the issue of administrative capabilities and time required, as well as difficulties in agreement as to the content of new legislation. This may suggest an automatic obstacle for states with less resourced legal and judicial systems.

Recognition, Ratification and Accession
For the avoidance of any doubt, the Hague Conference defines ratification and accession as:

Ratification: “Ratification involves the legal obligation for the ratifying State to apply the Convention… ratification is, in general terms, reserved for Member States exclusively.”7

Accession: “Other States wishing to become a Party to the Hague Convention may accede. This, however, is only possible once the Convention has entered into force. The States that are already parties to the Convention must in some cases accept this accession”. The Hague Convention 1980 “require[s] express acceptance by the States Parties to the Convention”.8

It therefore must be remembered that even when a country has acceded to the Convention it does not necessarily follow that existing signatories will (and often choose not to) recognise the Convention as being actually in force in the new contracting state.

This can be for many reasons, including an acceding state’s record on human rights abuses or past diplomatic incidents between the countries concerned. As an example, the United States State Department made the decision not to partner with Nicaragua, for whom the Convention entered into force in 2001. The State Department reported that this decision not to enter into a Convention relationship was for reasons such as the Nicaraguan Government limiting freedom of expression, there being widespread corruption, US citizens being detained or monitored, the judicial system not functioning independently. It also cited incidents of police and prison authorities ignoring or significantly delaying implementing judicial orders.9

New signatories also face the hurdle of having to comply with administrative requirements, such as establishing a Central Authority and ensuring rules and procedures which comply with Convention principles. As noted above, such requirements disadvantage certain states with underfunded legal systems or states whose legal systems are predicated on different legal and cultural values.

The Hague Conference has produced an ever-evolving table detailing the countries between which the Convention is in force on the ground.10

As the reader can see, the table is, unfortunately, rather impenetrable. It cannot easily be enlarged and zooming in exposes almost illegible script. It is respectfully suggested that this is a tool which requires complete revision, so that practitioners have easy access to a highly useful chart that cross-references countries and shows whether they have accepted the Convention as being in force in another State.

By way of example, even though Bulgaria acceded to the Convention in 2003, the accession was not accepted by the United Kingdom until 2009. Therefore, incoming abductions, until 2009, were to be dealt with by way of inherent jurisdiction applications following the principles of Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40. This is the kind of information a practitioner needs to have at his or her fingertips.

For ease of reference, the acceding states who, as of 12 March 2018, the United Kingdom does not recognise as having the Convention in force are (in chronological order):

  • The Republic of Moldova
  • Paraguay
  • Trinidad and Tobago
  • Nicaragua
  • Sri Lanka
  • Guatemala
  • Thailand
  • Dominican Republic
  • Gabon
  • Guinea
  • Lesotho
  • Iraq
  • Zambia
  • Philippines
  • Bolivia
  • Pakistan
  • Jamaica
  • Tunisia

The acceding states, which the United Kingdom does recognise as having ratified, are as follows (again, in chronological order):

  • Hungary
  • Belize
  • New Zealand
  • Mexico
  • Ecuador
  • Burkina Faso
  • Poland
  • Monaco
  • Romania
  • Mauritius
  • Bahamas
  • Honduras
  • Chile
  • Panama
  • Slovenia
  • Saint Kitts and Nevis
  • Cyprus
  • Zimbabwe
  • Colombia
  • Iceland
  • South Africa
  • Georgia
  • Turkmenistan
  • Belarus
  • Costa Rica
  • Fiji
  • Uzbekistan
  • Brazil
  • Malta
  • Uruguay
  • El Salvador
  • Estonia
  • Peru
  • Latvia
  • Lithuania
  • Bulgaria
  • Ukraine
  • San Marino
  • Albania
  • Armenia
  • Seychelles
  • Morocco
  • Singapore
  • Andorra
  • Russian Federation
  • Republic of Korea
  • Kazakhstan

Whilst the precise reasons for the decision of the United Kingdom not to recognise the Convention as being in force in the above states are not clearly known, this highlights that there are additional barriers to effective Convention practice between signatory states. These barriers are founded upon deep-rooted and complex issues not just within the legal realm, but reaching into cultural, moral and political spheres.

An additional issue faced by the United Kingdom is one of sovereignty. Pursuant to the Treaty of Lisbon, the United Kingdom does not have the unilateral power to accept new Convention states. However, this position will no doubt change after Brexit.

Object and Purpose of the Convention
In light of the above, barriers to wider ratification of the Convention may take considerable time to overcome. Further, the process from the signing to ratification by member states can also be lengthy. It is respectfully suggested that the Vienna Convention on the Law of Treaties 1969 may provide some form of solution, especially in an outgoing case.

In cases where a country has signed but not ratified the Hague Convention, the Vienna Convention provides that said signatory country must still act in line with the object and purpose of the Convention.

In R v O [2008] EWCA Crim 2835, which concerns the Council of Europe Convention on Action against Trafficking in Human Beings, it was stated that:

“The United Kingdom is a signatory to this Convention but has not ratified it….the United Kingdom is accordingly obliged by Article 18 of the Vienna Convention on the Law of Treaties to refrain from acts which would defeat the object and purpose of the Trafficking Convention”.11

The Vienna Convention on the Law of Treaties 1969 states at Article 18:

Obligation not to defeat the object and purpose of a treaty prior to its entry into force.

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty

and provided that such entry into force is not unduly delayed.”

Therefore, the object and purpose of the Convention – including the prompt, summary return of a child removed from a parent with rights of custody, with the view of this protecting their best interests – is still to be the outcome parties work towards in cases where a party or parties have not yet ratified the Convention or formed a Convention relationship with the other state concerned.

It is, of course, also the case that the 1996 Hague Convention can be used as a tool for securing the return of a child when the 1980 Convention does not apply – see Re J [2015] EWCA Civ 329.

Countries to whom the above solution may apply, namely states which have acceded to the Convention but who are not recognised by the UK as having done so, but which are parties to the Vienna Convention, include:

  • The Republic of Moldova
  • Paraguay
  • Trinidad and Tobago
  • Guatemala
  • Dominican Republic
  • Gabon
  • Guinea
  • Lesotho
  • Zambia
  • Philippines
  • Bolivia
  • Pakistan
  • Jamaica
  • Tunisia

Conclusion
Cultural and religious differences alongside potential non-recognition by signatory states and a lack of UK sovereignty still remain barriers to accession and subsequent recognition, particularly amongst South Asian or Muslim majority countries. However, Pakistan’s and now Tunisia’s accessions, do suggest a changing tide. It could be questioned how much of this is a result of international pressures to ‘join the club’. It may seem contradictory for pressures and calls for accession to come from existing member states, only then for the same member states to refuse to recognise the 1980 Hague Convention as actually being in force in the new state and refuse to ratify it. Thus the new member state is placed on a ‘lower tier’ than states between which the Convention is operational. In any event, one could be forgiven for feeling optimistic that the progression demonstrated by Pakistan encourages a line of further accessions in the not too distant future. Until that time, certain countries, like Pakistan, are in the Hague club for the purpose of countries which have recognised their accession but not for the UK, which is lamentable. One only hopes that this progression is properly recognised by all existing member states sooner rather than later.12

Footnotes:

[1]   Garimella, R & Jolly, S., ‘Private International Law: South Asian State’s Practice’ , P223
[2]   Freeman, M. ‘When the 1980 Hague Child Abduction Convention Does Not Apply: The UK-Pakistan Protocol’ quoting Gosselain ‘Child Abduction and Transfrontier Access: Bilateral Conventions and Islamic States’ (Preliminary Document No 7 of August 2002)
[3]   Ibid [2]
[4]   ‘Islamic Research Foundation International, Inc.’ ‘The Custody of Children in Shari-ah’
[5]
  ‘Jaising, I, ‘It would be disastrous for India to sign the Hague Convention on Child Abduction’, (Jan. 30, 2017); Library of Congress, ‘India: Decision not to sign Hague Treaty on Child Abduction’
[6]   
Aiyer, S. & Misra, S., The Invisible Lawyer, ‘Why Should India not sign the Hague Convention on the Civil Aspects of International Child Abduction’, (Sept. 29, 2017)
[7]   Hague Conference on Private International Law, FAQs 
[8]   
Ibid
[9]   Morley, J.D., ‘Notes on International Child Abduction to Nicaragua’, (January 24, 2017)
[10]  Convention of 25 October 1980 on the Civil Aspects of International Child Abduction – Status Table 
[11]  R v O [2008] EWCA Crim 2835, paragraph 13 (per Laws LJ)
[12]  All information provided is accurate as at the date of writing. Should an update be required, please contact the writer in chambers.

Kindly edited by Teertha Gupta QC of 4 Paper Buildings

source

If you have any questions or concerns regarding parental abduction to or from India or Pakistan  feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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