By Elena Giannattasio, Esq., International Family and HAGUE Convention Lawyer in New York, Multi-Jurisdictional Divorce, PLLC
A Recent Pakistan Hague Convention Case Raises Serious Questions
Pakistan acceded to the Hague Convention on the Civil Aspects of International Child Abduction in 2016. However, the United States did not immediately recognize Pakistan’s accession and only formally accepted it in 2020, with the Convention entering into force between the two countries on October 1, 2020.
While this development was viewed by some as progress in international child abduction enforcement between the United States and Pakistan, the mere fact that a country is technically a Hague Convention partner does not necessarily mean that Hague remedies will function effectively in practice.
A recent Pakistani case demonstrates why significant concerns remain.
The Shaikh Case: A Child Abducted from North Carolina to Pakistan
In Mohammad Faraaz Shaikh v. Ms. Javeria Shahani, C.P. No. S-678/2022, decided by the Sindh High Court at Karachi on January 25, 2024, a child was removed from North Carolina to Pakistan by the mother in alleged violation of the father’s custodial rights under North Carolina court orders.
The facts of the case are striking:
- The child was born and raised in North Carolina.
- The mother allegedly removed and retained the child in Pakistan.
- Custody litigation had already occurred in North Carolina.
- The North Carolina court ultimately awarded temporary sole custody to the father and ordered the child returned.
- Proceedings then unfolded in Pakistan.
Ultimately, the Pakistani court ordered the child returned to the United States. However, the reasoning employed by the court raises substantial concerns regarding how Hague Convention cases may actually be treated in Pakistan. At this time it is not clear if the Child was indeed return or whether if an appeal is pending.
Hague Convention Cases Are Not Supposed to Be Custody Cases
Under the Hague Convention, courts are generally supposed to determine only two questions:
- Was the child wrongfully removed or retained from the child’s country of habitual residence?
- Has one of the narrow Convention defenses been established?
The Convention is designed to ensure the prompt return of children so that custody issues are decided by the courts of the child’s habitual residence — not by the courts of the country where the child was taken.
In other words, Hague Convention proceedings are not intended to become full custody litigation.
However, in Shaikh, the Pakistani High Court engaged in broad custody-related analysis under Pakistani law rather than limiting itself strictly to Hague return principles.
Pakistani Custody Law and Sharia-Based Concepts
Pakistan’s family law system is influenced by statutory law, local family court procedures, and Islamic law principles, including custody concepts derived from Sharia law.
One such concept is “hizanat” or “hadanah,” which may provide presumptive custodial rights to a mother involving young children under certain circumstances.
In Shaikh, the mother argued that she was entitled to custody under Pakistani law because of these local custody principles. The Pakistani court therefore analyzed issues involving parental fitness, alleged misconduct, local custody rights, and domestic Pakistani legal principles.
The court also relied significantly upon Pakistan’s domestic Civil Procedure Code concerning recognition of foreign judgments.
While the court ultimately ordered the child returned, its reasoning strongly suggests that future Hague Convention cases in Pakistan may become broader custody proceedings rather than expedited return proceedings as contemplated under the Convention.
Delay and Enforcement Concerns
One of the most concerning aspects of the Shaikh matter is timing.
The proceedings reportedly extended approximately one year and ten months after the child’s removal from the United States.
By contrast, the Hague Convention contemplates that return proceedings should generally be resolved expeditiously, often within approximately six weeks.
Even more concerning, public reporting surrounding the case left unresolved questions concerning actual enforcement of the return order and whether further proceedings or appeals remained pending.
This raises significant concerns for left-behind parents:
- prolonged litigation abroad,
- uncertainty regarding enforcement,
- inconsistent application of Hague principles,
- and practical difficulties in securing the prompt return of children from Pakistan.
Hague Convention Status Does Not Guarantee Safety
Many parents mistakenly assume that if a country is technically a Hague Convention partner, international travel risks are minimal.
That assumption can be dangerous.
The Hague Convention contains no mechanism requiring foreign courts to automatically recognize or enforce United States custody determinations as custody orders. Moreover, practical enforcement ultimately depends upon the local legal system, judicial interpretation, and political and cultural realities within the foreign jurisdiction.
Accordingly, even in Hague Convention countries, wrongful retention can still result in years of litigation, uncertainty, and substantial expense.
U.S. State Department Concerns Regarding Pakistan
The United States Department of State currently maintains a Level 3 Travel Advisory for Pakistan advising U.S. citizens to “Reconsider Travel” due to terrorism, kidnapping, armed conflict, and security concerns.
Certain regions are designated “Do Not Travel.”
These concerns become even more serious where children with medical vulnerabilities, developmental disabilities, or special needs are involved.
Why These Cases Require Careful Judicial Scrutiny
When courts evaluate requests for international travel involving Pakistan, they may properly consider:
- the practical effectiveness of Hague remedies;
- the enforceability of U.S. custody orders abroad;
- the likelihood of prompt return;
- local custody laws and Sharia-influenced custody principles;
- the risk of prolonged foreign litigation;
- and the specific vulnerabilities of the child involved.
These concerns are especially significant where a child is unable to independently advocate for themselves, communicate effectively, or protect themselves abroad.
In such circumstances, courts are often justified in imposing passport controls, travel restrictions, safeguards, or supervised international access conditions to protect the best interests of the child.
Final Thoughts
Pakistan’s acceptance into the Hague Convention framework with the United States was an important development. However, recent cases demonstrate that substantial practical concerns remain regarding implementation, enforcement, delay, and the treatment of Hague matters within Pakistan’s legal system.
Until Pakistan develops a clear and consistent record of prompt Hague compliance and effective enforcement of return orders, courts and parents alike should proceed with substantial caution when international travel to Pakistan is proposed over the objections of a concerned parent.