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:
(a) 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;
(b) Mindful that the
UK and Pakistan share a common heritage of law and a commitment to
the welfare of children;
(c) Desirous of promoting judicial
co-operation, enhanced relations and the free flow of
information between the judiciaries of the
UK and Pakistan ; and
(d) 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
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 on 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
non-governmental 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 | | The Hon. Mr Justice Sh. Riaz Ahmad |
| President of the Family
Division | | Chief Justice of the Supreme Court |
| of the High Court of England and
Wales | | of
Pakistan |