MUHAMMAD SULAIMAN KHAN vs GUARDIAN JUDGE-II, LAHORE S — 2026 PLD 107 LAHORE-HIGH-COURT-LAHORE

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MUHAMMAD SULAIMAN KHAN VS GUARDIAN JUDGE-II, LAHORE S. 25---Family Courts Act (XXXV of 1964), Sched., Art. 6-A---Custody of minors---Minors and parents being foreign nationals---Invocation of "Hague Convention" seeking the return of the children to their habitual place of residence abroad---Applicability, object and scope---Convention on the Civil Aspects of International Child Abduction, 1980 (Hague Convention) requires restoration of children who are wrongfully removed or wrongfully retained in any Contracting State and to ensure that rights of custody and access under the law of a State are effectively respected by other Contracting States---This requires from signatory States to take appropriate measures to secure within their territories the implementation of the objects of the Convention, in most expeditious procedures which are available---It also protects rights of custody even where there has been no order of custody---The rights of custody can arise by operation of law or under decision of competent forum or because of agreement which is legally recognized by the State from where a child is allegedly removed---There are a number of judgments from English jurisdiction to the effect that first task of the Court is to see what right has been left behind by the parent that she/he had under the law of the State of habitual residence immediately prior to removal---Secondly, to see those rights amount to "right of custody" in terms of Art. 3 of Hague Convention or the "rights of access" that includes the rights to take a child for a limited period to a place other than the habitual residence---For the purposes of the Hague Convention "habitual residence" must not be just a temporary or intermittent place, however, there is no need for an intention to reside indefinitely---There must be some degree of integration into the social and family environment in the State---The presence should be voluntarily---Enforced presence or residing somewhere with opportunity to escape is not included---To make the Hague Convention effective in all the Contracting States, particularly the States which have joined it lately, the meanings to the rights given therein and related terms should be interpreted in the literal sense otherwise difficulty can be faced in protection from harmful consequences to a child by wrongful removal or retention---It is also vital to establish procedures to ensure prompt return of the removed child to the State of habitual residence---Article 6-A in Schedule (Part-I) to Family Courts Act (FCA-1964), through SRO 980(I)/2017 dated 25.09.2017 has been inserted---This confers jurisdiction upon the Guardian/Family Court to resolve these issues in the country---An examination of the Hague Convention also reveals that it warrants taking measures of the nature that the question of wrongful removal and detention should be determined at earliest, so that upon being convinced the order of return can be passed without delay or harmful effect to any child---The provisions of Hague Convention necessitate that if less than a year has elapsed from the wrongful removal the order of return should be forthwith---After one year, position depends on the question as to whether a child has settled in his/her new environment?---The word "demonstrated" as provided by Art. 12 of Hague Convention will make it a question of fact---It will depend upon case to case basis---However, when the same could not be demonstrated on the balance of probability the Court or authority should make an order of return---Nonetheless, this also is dependent on Arts. 13 & 20 of the Hague Convention---Further discussion on Art. 13(a) of the Convention will also be relevant---The requested State is not bound to order the return if the one opposing can establish that the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or had subsequently acquiesced in the removal of or the retention.

MUHAMMAD SULAIMAN KHAN vs GUARDIAN JUDGE-II, LAHORE S — 2026 PLD 107 LAHORE-HIGH-COURT-LAHORE

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