Wednesday, November 29, 2006

Flawed Protocol?

BBC NewsAs reported on BBC News today, a Pakistani court has ordered that Molly Campbell (also known as Misbah Rana), the child at the centre of the much-publicised abduction/custody dispute, be returned to Scotland.

It is a basic principle of international child law that the proper forum for the resolution of disputes relating to children is the court of the country where the child habitually resides. Whilst it is regrettable that the matter could not be resolved by agreement, it is pleasing that this principle has been upheld. The case was decided by reference to the Protocol signed in January 2003 by Dame Elizabeth Butler-Sloss, the then President of the Family Division and The Hon Mr Justice Sh Riaz Ahmad, Chief Justice of the Supreme Court of Pakistan. The first paragraph of the Protocol sets out the principle. However, the relevant paragraph reads:

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.

In this case the child's mother, Louise Campbell, had been granted interim custody by the Court of Session in Edinburgh last June and therefore the Pakistan court has ordered the return of the child to Scotland, the country of her habitual residence. The problem with the Protocol, of course, is that it would not have required the child's return if her mother had not already
obtained the interim custody order, despite the fact that Scotland is clearly the country of the child's habitual residence. This problem is likely to be particularly common in England and Wales, where the 'no order principle' means that in most cases there will not be a residence order in favour of the parent with whom the child usually resides - unless that parent has had the foresight to apply for an order in case the other parent should remove the child to Pakistan without his/her consent.

1 comment:

  1. I feel sorry for her for the extreme change of weather she'll have to experience on her return.

    Not all bad here though. Very low crime, traffic, pollution, urban sprawl. Beaches are good, too.

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