GLOBALISATION has resulted in marriages across cultures and nationalities, and such transnational marriages can be challenging if they don’t work.

For instance, if a foreigner woman marries a Pakistani man and they have children, there could be serious difficulties for her should the marriage end in divorce. In most cases, she will not have much financial, legal, emotional or psychological support. If there are any threats to her life or that of her children, they cannot get an Emergency Travel Certificate unless both parents are present — to which the father would probably never agree under such circumstances.

Should the woman choose to leave without them, it might be considered as abandonment of her children. If she manages to gain custody of the children in Pakistan, the court would order her not to remove the children from its jurisdiction. Under normal circumstances, it would make sense as both parents have equal rights to custody of their children.

But what if the father is violent, and the wife and children need to be protected from him? What if their lives are in danger? Is a foreign national mother not in a better position to raise the children in her home country, where she would have support — especially if it’s a welfare state?

The best interests of the child should be paramount in custody disputes.

Legal cobwebs: One might wonder why the courts in Pakistan should have jurisdiction in cases in which the children are born abroad and have a foreign jurisdiction as their habitual place of residence? This is because Section 5 of the Citizenship Act grants citizenship by descent to children if they’re born to a Pakistani father, and guardian courts here have jurisdiction to try the cases for custody of children. Even if the mother gets a decree of custody in her favour in the foreign jurisdiction, the courts here are not bound to enforce the same.

Custody issues get even more convoluted when children are removed by one parent without the permission of the other, and multiple proceedings are taking place simultaneously. At times, such legal proceedings take place in both home and adoptive countries, leading to conflicts of laws and jurisdictions. The ones who suffer the most due to this uncertainty are the minor children.

This is so despite the fact that in almost all jurisdictions, the ‘best interests’ of the child are the paramount consideration when deciding custody disputes. Every case is to be decided on its own merit and according to its own set of circumstances when deciding the welfare of the minor. Yet, in practice, this does not entirely seem to be the case. The inflexibility in procedures and practices, along with the many delays, results in much damage to the children, especially those who are in their most formative, impressionable years.

Child abduction: The courts have ruled time and again that child abduction goes against due process and must be discouraged. For instance, in the case of Re L, the UK’s court of appeal ruled that removing a child from home jurisdiction has a psychological impact and immediate steps must be taken to address this.

However, subsequently, in Re R, the court ruled that the decision must not be based on the alleged ‘kidnapping’ of children but rather the best interests and welfare of the child. The court acknowledged that the concept of ‘forum conveniens’ has no place in wardship jurisdiction. The child must be returned to the home jurisdiction only if it’s in his best interest, and not otherwise.

The Hague Convention: Similarly, The Hague Convention of 1980 deals with the issue of child abduction. The convention stipulates that where a child has been wrongfully removed and retained, they should be returned to their home country if an application to the same is made within a period of one year.

However, Article 13 of the convention stipulates that the child’s return may be declined on certain grounds, including if there is a grave risk that his return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. However, despite this flexibility, the courts apply the law too rigidly.

There is a dire need to apply domestic and international laws by taking into account factual considerations as opposed to the technical development of law to ensure that the best interests and welfare of children in wardship petitions are adequately protected.

Nation states need to ensure that spouses in foreign lands, for their own protection or that of their children, are provided consular services to enable them to travel on the basis on emergency travel documents by considering their circumstances. Such vulnerable women and children must also be given shelter and legal assistance by the state so that they are not left helpless and under threat in foreign lands.

The writer is a lawyer.

Published in Dawn, September 7th, 2020