Civil Aspect of Cross-Border Child Abduction – Judicial Practice of Bangladesh

 

Aroup Raton Shaha [1]

 

Abstract:

Cross-border marriages are a common phenomenon in today’s globalized world. Countries are also updating their laws to accommodate these cutting age issues. But in this discourse, a significant number of conflicts of laws issues are arising at the same pace. Parental Child abduction is one of the significant problems of current private international law on which countries are struggling.  As the parties of wedlock are not from same countries, therefore the custody of the child is a serious concern particularly when the husband and wife are staying in different countries. Hague Convention on the Civil Aspects of International Child Abduction tries to address this issue comprehensively. Although, Bangladesh is having a considerable amount of expatriates living across the globe who are facing this problem but still not a party to the convention.  This study first gives a glimpse on the basics of Hague Convention and its relevance to South Asian counties. It discusses the how best interest of the child principles are incorporated and interpreted in several private and public international law documents. In its next part, this study focuses on custodial laws of Bangladesh and how courts deal with the custodial matter. It precisely focuses the similarities of the principles of the Hague Convention and principles that practiced Bangladeshi Courts. It concludes with the analogies of different Asian Countries who are countering the same issue.

 

 

 

1. Introduction

The civil aspect of international child abduction is not an age old problem. But it is growing bigger with coming days. The Hague Convention on the Civil Aspects of International Child Abduction particularly addresses child abduction when parents unlawfully take them out of their habitual residence. It provides a  comprehensive regime of co-operation between the Contracting  States’ concerned authorities and a fast system for the return of the child to their habitual residence.The convention is already proved very handy in resolving these problems between contracting state[2]. Some States, which are not party though, like India,  following the principles of Hague Convention based on the comity of court.

 

The development of Hague Convention was inevitable[3]. Although, a significant increase in the number of parental child abduction involving South Asian countries has been observed in recent days, large portion of it from Bangladesh, India [4] and Pakistan[5], but these countries are yet to sign the convention. This study first gives a glimpse on the basics of Hague Convention and its relevance to South Asian countries. It discusses the how best interest of the child principles has been incorporated and interpreted in several private and public international law documents. In its next part, this study focuses on custodial laws of Bangladesh, which are mostly the domestic custodial issues along with some case studies. In doing so, this study demonstrates the best practices of the court in custodial issues. Thereafter it concentrates on the position of Bangladesh in cross-border civil aspect of child abduction. At last, it concludes with a recommendation that how Bangladesh should approach to solve inter-country child abduction problems.

 

 

 

 

2. An overview of the Hague Convention on Civil Aspects of International Child Abduction:

 

Parental child abduction’ is an emotionally devastating event for both the child and the parent[6]. Sometimes these incidents leave parties clueless that what should be the proper course of action. It is because emotions may have driven the other parent who has abducted the child forcefully depriving his/her spouses parental right. But in the whole discourse, one must not forget the best interest of the child. The Hague Convention on the Civil Aspects of International Child Abduction is particularly addressing this very concern.  This Convention was drafted in 1980 under the auspices of the Hague Conference on Private International Law.

However, this convention is willing to achieve, aside from protecting rights of access[7], to protect children from the harmful effects of cross-border abductions. The Convention objectified the restoration of the status quo, using ‘the prompt return of children wrongfully removed to or retained in any Contracting State.’

 

The Hague Convention focusses on child ’s habitual residence and to ensure the valid rights of access to a child, but it is mention-worthy that nowhere in the convention defined the term “Habitual Residence”.[8] It described only the main idea, that is, a custodial matter of child must deal with the court where he habitually resides.[9] The backdrop of the convention is the increasing incidents of inter-state child abduction, in an age when divorce is increasingly more common.[10] It has its prime aim to provide a remedy for abductions and to protect and safeguard children from its dreadful effects.[11]

Moreover, an abductor cannot insulate the child from the return provisions by obtaining a custody order in the country of new residence. Article 17 provides that the Requested State must deny returning a child simply based on the award of the court custody to the alleged wrongdoer. However, article 17 does permit a court to consider the reasons underlying an existing custody decree when it applies the Convention.[12]“The other key parts of the convention has been analyzed in details in this part.

2.A“Abduction” and Wrongful Retention under Hague Convention :

The title of the Convention does not intend to use “Abduction” in a criminal sense[13]. On the contrary, it has the concern about wrongful custody of a parent by depriving the custody of others.  It is reflected in the term “wrongful removal” which refers to removing a child from the parent who was exercising custody[14].

The reference to “Abduction” in the title to the Convention, applies more generally to children who have been taken to another country in violation of another’s custody rights or have been wrongfully retained in violation of such rights. The basis of the Convention is that the country in which the child is “habitually resident[15]” should decide the custody of the child concerned. The abduction of a child by a parent to prevent access to the child for the other parent leads to the situation of parental child abduction[16].

Finkelhor, Hotaling, and Sedlak find,[17] civil abductions by parents arises in the following situations. First, it may occur when a parent takes the attempt to hide the whereabouts of the child and to prevent another parent from contacting the child. Secondly, if  the child was to be taken out from the habitual residence; or (c) abductor tries to retain the child for an uncertain period or perpetually harm custodial privileges.”[18] This kind of child abduction mostly occurs where there is a separation and divorce battle is going between the parents of that child. Generally, the abductor takes the child to a different place within the same country[19].

 

Wrongful retention

“Wrongful Retention,”  it primarily refers a situation when a child is being kept without the consent of the parent who was exercising the custodial rights. It may a arise when a person refuses to return the child after his/her legal visitation time. Article 21 of the convention has dealt the refusal to access to the child by the parent who is exercising the custodial right.  Upon the arrival of that situation, a parent, whose custodial rights have been prevented by another parent, may file an application to the central authority for the peaceful enjoyment of the custodial right. The Central Authority is duty bound to remove, as far as possible, all the barriers that create hindrance on the exercise of such right[20]. It shall, directly or through any other mediam, work with the other agencies in order to secure such right[21]. The term Wrongflul Removal has also been discussed in following paragraph.

 

 

2. Scope of the Hague Convention:

Article 3 illustrates the scope of application of the Hague Convention: The removal or the retention of a child is to be considered wrongful where-

1. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention…. [22]
2. The article states that when a child is taken and not returned to his or her place of habitual residence (i.e., abducted in violation of the custody rights of the other parent as set out by the courts in the state of residence), the forum is obligated to order the child’s return to the place from where he or she was removed, without delay. A child is deeply affected by being removed from his or her habitual residence and taken to another location imposed on him or her by the abducting parent.[23]

 

While determining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions[24], formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable[25].

 

The drafters of the convention realized that the domestic laws of different countries might view “custody rights” in different ways[26]. For instance, where the mother was given custody but the child could not leave the jurisdiction without the father’s consent was discussed, a removal out of the jurisdiction by the mother would be wrongful. It is important that courts understand and respect that “custodial rights” under a foreign law can be quite different from their own. For this reason, Article 5 of the Convention quite specifically defines “rights of custody” as “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence”[27] .

 

Determining the Convention’s scope ratione personae as regards the children who are to be protected is so important. The Convention applies to children of less than sixteen years of age, who were ‘habitually resident in a Contracting State immediately before any breach of custody or access rights. Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention[28]. In this regard, pursuant to the terms of the Hague Convention, each signatory country must have a Central Authority, a place that acts as a headquarters for all Hague-related matters and fulfills the duties imposed on the Convention country by the Convention[29]. The Convention itself was also built in large measure upon the intervention and powers of Central Authorities[30].

 

2. C. The Procedures of the Convention:

The Hague Convention on the Civil Aspects of International Child Abduction talks about the establishment of central authority in each member state[31] in its article Xl. It says that the court or administrative authority dealing this issue shall maintain a speedy process to return the child[32].

Article IX authorises the Central a

Article IX of the Hague Convention authorises the Central Authority of the State, where the request is made, to ask a statement for delay if any resolution on the application has not been made within six weeks from the commencement of the proceedings If the child is not returned to his or her state of habitual residence. However, the aggrieved parent must first create a request to the central authority or its representative to apply the Convention[33]. The central authority then initiates proceedings to determine whether the Convention mandates the child be returned to the aggrieved parent or whether an exception to the Convention applies and the child may remain with its abductor. The creation of the central authority was intended to shift communication from diplomatic and consular channels to judicial and administrative channels.[34]

 

According to Hague convention the Central Authorities shall accomplish the following duties i) trace out the abductor and the abducted child ii) start procedure according to the convention to return the child to his habitual place of residence,[35] iii) facilitating the safe return of the child[36]

 

1. iv) producing the informations regarding laws and practice of custodial matter the applicant[37] v) giving all facts about the background of a child in conjunction with an application, vi) facilitating with all laws and with lawyer and vii) endeavoring an amicable solution of child abduction[38].

 

Therefore, it is imperative that central authorities act quickly and have the staff and resources needed to fulfill all the assigned functions effectively[39]. Article XXV entitles nationals or habitual residents of one contracting, on the same conditions, to legal aid and suggestions .[40] However, if a central authority receives an application from a parent and has knowledge that the child is located in another contracting state, that central authority need not initiate proceedings.[41]Upon receipt of a request, if a voluntary return is not possible,[42] the central authority begins judicial proceedings as quickly as possible. [43]

 

3. “Best Interest of the child” in International Law :

The principle “Best interests of the child” is not explicit operative clauses of the Hague Convention, but preamble  seeks “to protect children internationally from the harmful effects of their wrongful removal or retention” and that the parties are “firmly convinced that the interests of children are of paramount importance in matters relating to their custody.”[44] As Elisa Prez-Vera concludes, “it is thus legitimate to assert that the two objects of the Convention-the one preventive, the other designed to secure the immediate reintegration of the child into its habitual environment-both correspond to a specific idea of what constitutes the ‘best interests of the child[45].”

The preamble of the 1980 (Hague) Convention on the Civil Aspects of International Child Abduction,[46] developed well before the CRC, underlines the fact that “the interests of children are of paramount importance in matters relating to their custody”. That said the operative articles make no further mention of the concept[47]. This Convention uses a more concrete formulation than best interests’ to allow derogation from the treaty’s basic principle that abducted children should be returned as quickly as possible to their country of habitual residence[48].

Here, the competent authority is under no obligation to return a child if there is a  possibility that child could expose serious physical and psychological harm on his or her return or otherwise or the place where he would be returned would be intolerable.[49]

There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.[50]

Therefore the best interest of the child principle gained huge importance in dealing with child abduction issues. It gives discretion to the court to decide what is best for the child in its judgment.

 

 

 

 

 

 

4. Parental Child Abduction in Bangladesh :

 

Bangladesh is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, nor are there any bilateral agreements in force between Bangladesh and other countries concerning international parental child abduction. UK and the USA have raised their concern, that it may have a good number of such problems and it may be that those have not yet been formally brought to the notice of the authorities concerned in Bangladesh. Its judiciary has been consistently practicing the principle of best interest of the child. Therefore the complying the basic provisions of the Hague convention are in the court of Bangladesh is not very difficult. The following sections will discuss this in details.

 

 

 

4.A .Child Protection and Custodial laws In Bangladesh (Civil matters) :

Generally, substantive and procedural custodial issues are governed by the Family Courts Ordinance of 1985 and The Guardians and Wards Act(GWA) of 1890 in Bangladesh.[51]  Family law courts have jurisdiction on matters related to guardianship and custody of children.[52]

 

The GWA, however, is not a self-contained law as it reserves the courts’ (now the Family Courts) power to appoint guardians by the personal law applicable to the minor. Unlike Muslim personal law, the GWA does not differentiate between custody and guardianship, and it charges the guardian with custody of the minor[53]. However, the definition of ‘guardian’ in the GWA includes any person having care of the person or property of a minor and it is reflected in a significant number of cases[54].

 

Family courts of Bangladesh ponder into multiple factors on the occasion of appointment guardian of a minor. Broadly these factors are the best welfare of the minor, “the age, sex, and religion of the minor. The proposed guardian’s character and his nearness are also important considerations for the court.  Sometimes the court considers  wishes of a dead parent and relations of the proposed guardian with the minor or his property.”[55]  Further, courts may also consider the minor’s preference if the minor is “old enough to form an intelligent preference.”[56] By this legal framework, courts generally follow the personal or religious law of the minor when making guardianship and custodial decisions.

 

Muslim law in Bangladesh, the father is the natural and legal guardian of the person and property of his minor children, and under Shari’a law and the classical Hanafi position is also not with the international standard. According to sharia mother has only right to physical, not legal, custody of her child until age seven for males and puberty for females.  However, she may lose her custodial right on her children if she remarries a non-relative or someone not in the list of consanguinity the child.[57] These religious rules are not absolute though; a mother may always apply for custody of her child. The Family courts of Bangladesh diverted from the traditional religious child custodial rules a sizable number of times based on the best interests of the minor as provided in the Guardians and Wards Act.[58] The next sections will describe that how court have consistently deal with the principle of best interest of the child and diverted from the traditional interpretation of the law.

 

 

4.B. Best Interest of the Child Principle and Costodial rights of mother followed in Case Laws:

 

In the remarkable Sharon Laily case[59], their Lordships agreed that “crucial paramount factor for the Court is the welfare of the child, not the rights of the parties under the rules of personal law or statutory provisions. Child’s welfare must be the determining factor in deciding the question of custody of children[60].

 

In Abu Baker Siddique case[61]  it was held that, in the case where the court believes it to be justified that it can deprive one party of the custody of his child, whose custody he was entitled under Muslim Law[62], Courts will not hesitate to do so. In this case the eight year old child was also asked about his preference, and such preference was taken into consideration by the trial Court before giving custody to the mother. The matters to be considered before deciding the issue of custody of children were also elaborately discussed in this case[63].

 

 

 

1. Where the personal law and the welfare doctrine is in conflict:

 

In Ayesha Khanam v Major Sabbir[64] Ahmed made an important contribution in clarifying policy priorities. In this case, petitioner divorced her husband and remarried. Her son of the first marriage was taken away by the respondent (husband), after his school got over, without any notice. The High Court directed the son to be handed over to the mother and allowed the father visitation rights only. The court observed that the personal law and the welfare doctrine are not in conflict here and even if there [sic] were, the welfare doctrine would have precedence”.[65]

 

1. Hizanat of a minor daughter or son is not solely dependent on his or her age:

 

The age and sex of the minor, commonly depicted as the ‘age and sex rule’, plays a determining role while applying the traditional rules of hizanat under personal law. The apex court, in Abu Bakar Siddique v SMA Bakar[66] , observed that the question of hizanat (also pronounced as hidanat) of minors is not solely dependent on their age or sex but on considerations of their welfare as the determining factor[67].

 

 

1. A mother remarried to a stranger does not ipso facto lose her right to custody

 

 

A Muslim mother’s remarriage to a stranger is often known to work against her in disputes involving custody and guardianship of her children. It is now established that a mother remarried to a stranger does not automatically lose her right to custody of her children, and can also be declared the guardian of her children depending on the facts and circumstances of individual cases.

 

In Johara Begum v. Maimuna Khatun[68] , The appellant was the mother of the minor and the respondent was the mother-in-law of the appellant. When the mother remarried the child’s paternal grandmother filed an application to be appointed as guardian of the person and property of the minor[69] contending that the mother was not fit to take care of the child[70].

 

The High Court Division allowed the appeal modifying the order of the District[71]. The Judge while appointing the appellant as the guardian and the respondent as guardian of property of the minor and held: The Court having regard to the provision of Mahomedan Law and also the welfare of the minor, should appoint a guardian and not blindly merely because a mother has lost her preferential right after having taken a second husband and not related to the minor within the prohibited degrees[72].

 

 

1. The rule of hizanat does not give any right to the father to remove a minor son from the custody of his mother at will:

Forceful or deceitful removal of minors from their mother’s custody is another common practice, which appears to result from the fathers’ assertion of their unfettered right to effect removal of minors at will from the custody of mothers[73].

The Court’s intervention, in Zahida Ahmed (Liza)[74] v. Syed Noor Uddin Ahmed and Another , will undoubtedly help counter such notions that are reinforced by patriarchy. This case involved a habeas corpus writ petition which was followed by a family suit. The petitioner was the mother of a 10 year old boy (the detenu). She had been living in  for the preceding six years along with her son and husband. After their arrival in London, the child was diagnosed with significant psychological and physical health problems. Following a breakdown in the relations between the father and mother, the child was wrongfully removed by his father from the mother’s custody and brought to Bangladesh without her knowledge[75].

 

In Zahida ahmed case , court finally held: “According to Mohammedan law of hizanat, [there] undoubtedly father is entitled to the custody of his minor son, when he attains the age of seven years. The guardianship and custody law does not permit deceitful removal of the detenu from the custody of his mother while he was in a foreign country where such removal is not at all permissible. The rule of hizanat has not given any unfettered right to the father to remove a minor son aged about 10 years from the custody of his mother at will. By doing so, respondent has taken law in his own hand without waiting for adjudication of the custody and welfare of the child in an appropriate forum”[76].

 

 

 

5. Sharon Laily case[77] and position of Bangladesh in Prental Child Abduction:

 

The facts of the above case are that Sharon Laily Begum, a citizen of England married Abdul Jalil, originally hailed from Bangladesh. In due course they had four children, all born in England. In November 1993, Jalil took Laily and their four children to Bangladesh for a visit but on arrival in Bangladesh Jalil took away all their passports and he refused to take them back to England. He also subjected Laily to physical abuse. On 8 May 1995, A deceitfully removed the children including the youngest one, who was a breastfeeding infant, sent Laily, a copy of the notice of divorce dated 9 May 1995.

 

Having failed to see her children, Sharon Laily returned to England and filed a suit in the High Court Division of Justice (Family Division). Court directed that the children be made wards of Court and they be returned to its jurisdiction. By a further order dated 14 July 1995, the said Court directed that Jalil be forbidden from seeking to prevent or delay Laily from bringing the children to the jurisdiction. It further directed that jalil forthwith handover the children to the physical care of the petitioner laily and that the children remain in the interim care and control of S until further order[78].

 

With the above backdrop Laily brought an action in the HCD of the Supreme Court of Bangladesh of habeas corpus. The High Court Division of Bangladesh entertained Laily’s application but without finally deciding the question of custody, held that Laily, as mother, was entitled to the custody of the children below the age of 7 years and the father was to have custody of the children above 7 years[79].

 

In the appeal, Appellate Division of Supreme Court referred section 17 of GWA and said in proceedings like this it was not the rights of the parties but the rights of the child which were in issue. The court held that, Laily, the aggrieved mother, had the right under the Constitution to immediate custody of the children which ordered the same in the interest and for the welfare of the said children, until the matter was finally decided by the Family Court[80].

 

6. Conclusion:

Bangladesh is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction neither there is any bilateral agreements in force between Bangladesh and other countries concerning international parental child abduction. Bangladesh’s negligence to accede to Convention has legal and social consequences. Children with parents of Bangladeshi origin living in foreign nations are less likely to experience their Indian heritage first hand, as foreign Courts have become aware of the burgeoning cases where children are wrongfully removed to Bangladesh and then not returned.

 

An Indian example of this sort is, in a trial case in Kane County Illinois, a father was ultimately unable to take his son to India even for a vacation. This was because of the lack of any clear protocol of enrolling the foreign judgment or predictability of outcome when a child is taken to India.[81] There is a pertinent need for India to accede to the Convention, especially owing to the fact that there is a lack of cohesiveness in its jurisprudence on the subject, and also that there is a recommendation by the Law Commission of India for such accession[82].

 

 

Though there are instances of such cross-frontier family problems between Bangladesh and India, the scale of such issues appears to be tolerable.  The UK and the USA have raised their concern, that it may have a good number of such problems and it may be that those have not yet been formally brought to the notice of the authorities concerned in Bangladesh . Judiciary of this country has been consistently practicing the principle of best interest of the child. Therefore the necessary provisions of Hague convention are tenable in Bangladeshi Judiciary. Consequently one could find the comity of the Court in practice of some of the principles related to custody and guardianship.

 

Bangladesh, being an active member of the South Asian Association for Regional Co-operation (the “SAARC”), is solving such problems through the forum. But, as the problems are growing in sizable numbers it should also consider becoming the party to the Hague convention.

 

 

 

[1] The writer is a Lecturer at Green University of Bangladesh and Researcher at International Human Rights and Economic Law.

 

[2] The signatory countries to the Hague Convention other than Turkey and the U.S. include Argentina. Australia, Austria, Bahamas, Belgium, Belize, Bosnia-Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada. Chile, Colombia, Costa Rica, Croatia. Cyprus, Czech Republic, Denmark,Dominican Republic, Ecuador, El Salvador. Estonia, Finland, France, Germany, Greece, Guatemala, Honduras, Hong Kong SAR, Hungary. Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau SAR, Macedonia, Malta, Mauritius, Mexico, Monaco, Montenegro, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania. St. Kitts & Nevis, San Marino. Serbia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka. Sweden, Switzerland, Ukraine, United Kingdom, Uruguay. Venezuela, and Zimbabwe.

[3] Molshree A. Sharma, ‘Inter-country Child Abduction—Indian Legal Response’ in Sai Ramani Garimella  &Stellina Jolly  (eds), Private International Law: South Asian State’s Practice, p 199

[4] Idid

[5] S Ali , ‘Inter-country Child Abduction—Pakistan’s Legal Response’ in Sai Ramani Garimella  &Stellina Jolly  (eds), Private International Law: South Asian State’s Practice, p 236

[6] Monica Marie Copertino, Comment, Hague Convention on the Civil Aspects of International Child Abduction: An Analysis of its Efficacy, 6 CONN. J. INT’L L. 715, 715-16 (1991). This parent is termed the “aggrieved parent” for the purposes of this article. Id.

[7] Copertino, M. M., Hague Convention on the Civil Aspects of International Child Abduction: An Analysis of Its Efficacy, 6 Conn. J. Int’l L. 715.; Horstmeyer, E. S., The Hague Convention on the Civil Aspects of International Child Abduction: An Analysis of Tahan and Viragh and Their Impact on Its Efficacy, 33 U. Louisville J. Fam. L. 125.; Duncan, W., Action in Support of the Hague Child Abduction Convention: A View from the Permanent Bureau, 33 N.Y.U. J. Int’l L. &Pol. 103.

[8] The Important Features of the Hague Abduction Convention-Why the Hague Convention Matters. Available at https://travel.state.gov/content/childabduction/en/legal/law-and-regulations/hague.html

[9]  Elisa Pdrez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, in Hague Conference on Private International Law (discussing the Acts and Documents of the Fourteenth Session, Vol. IHI, 1980); BAINHAM, supra note 11, at 750; INGLIS, supra note 11, at 539, 543

[10] Ibid

[11] (Rivers, 1989: 589; Dyer, 1993: 283). As referred,  Stellina Jolly, International Journal of Law, Policy and The Family, 2017, 31, 20–40 doi: 10.1093/lawfam/ebw016 Article

[12] Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (hereinafter Hague Convention].

[13] The Hague Convention on the Civil Aspects of  International Child Abduction, Legal Analysis (51 Federal Register 10494 as revied in 10 september 2018, Available at https://travel.state.gov/content/dam/childabduction/Legal_Analysis_of_the_Convention.pdf

[14] Ibid

[15] The Hague Convention on the Civil Aspects of International Child Abduction,1980, art. 3.

[16]  Supra note 4, S Ali , ‘Inter-country Child Abduction—Pakistan’s Legal Response’

[17] David Finkelhor, Gerald Hotaling and Andrea Sedlak, ‘Children Abducted by Family Members: A National Household Survey of Incidence and Episode Characteristics’, (1991) 53, Journal of Marriage and Family 805–817.

[18] Maureen Dabbagh, ‘Parental Kidnapping in America: An Historical and Cultural Analysis’ (Mc Farland 2011)56.

[19]  Supra note 4, S Ali , ‘Inter-country Child Abduction—Pakistan’s Legal  p.223

[20]  The Hague Convention on the Civil Aspects of International Child Abduction (concluded 25 october 1980), Artice 21       

[21] Ibid

[22] The Hague Convention on the Civil Aspects of  International Child Abduction, article 3

[23] Elisa Pdrez-Vera, supra note 8

[24] Dr. Şebnem NEBİOĞLU ÖNER, The Hague Convention On The Civil Aspects Of International Child Abduction: Its Purpose, Implementation And A Brief Case Law Analysis, Law & Justice Review, Volume:IV, Issue:1, June, 2013, paragraph 53

[25] Ibid

[26]D. Marianne Blair , International Application of the UCCJEA: Scrutinizing the Escape Clause

Family Law Quarterly Vol. 38, No. 3 (Fall 2004), pp. 547-581

 

[27] See Silberman, L., The Hague Child Abduction Convention Turns Twenty: Gender Politics and Other Issues, (2000-2001), 33 N. Y. U. J. Int’l L. & Pol. 221, p.226.; Whitman, C. B., Croll v. Croll: The Second Circuit Limits Custody Rights under the Hague Convention on the Civil Aspects of International Child Abduction, (2001), 9 Tul. J. Int’l & Comp. L. 605.

[28] The Hague Convention on the Civil Aspects of International Child Abduction

Art. 2.

[29] In Turkey, the Central Authority is the Turkish Ministry of Justice. See http://www.uhdigm.adalet.gov.tr. (last visited March 25, 2013).; For U.S.A. see Pfund, P. H.,The Hague Convention on International Child Abduction, the International Child Abduction Remedies Act, and the Need for Availability of Counsel for All Petitioners, 24 Fam. L.Q. 35, p.42.; Clemens, L.C., International Parental Child Abduction: Time for the United States to Take a Stand, (2003), 30 Syracuse J. Int’l L. & Com. 151.; Wolfe, K., A Tale of Two States: Successes and Failures of the 1980 Hague Convention on the Civil Aspects of International Child Abduction in the United States and Germany, 33 N.Y.U. J. Int’l L. & Pol. 285.; See Bailey, M., Canada’s Implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, 33 N.Y.U. J. Int’l L. & Pol. 17.

 

[30] Bruch, C. S., The Central Authority’s Role under the Hague Child Abduction Convention: A Friend in Deed, 28 Fam. L.Q. 35.

[31] Supra 23

[32] Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (hereinafter Hague Convention]. Article 11

 

[33] Susan Mackie, Procedural Problems in the Adjudication of  International Parental Child Abduction Cases(1996) 10 Temp. Int’l & Comp. L.J. 445, 466

[34] Convention, supra note 15, art. XI. Article XI states: “the judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.” See also Georges A.L. Droz, Netherlands: A Comment on the Role of the Hague Conference on Private International Law, in 57 LAW AND CONTEMPORARY PROBLEMS, 1, 3-11 (1994) (discussiong role and purpose of central authority).

[35] Monica Marie Copertino, Comment, Hague Convention on the Civil Aspects of International Child Abduction: An Analysis of its Efficacy, 6 CONN. J. INT’L L. 715, 715-16 (1991). This parent is termed the “aggrieved parent” for the purposes of this article. Id.

[36] Ibid

[37] Ibid

[38] Ibid

[39] Ibid

[40] The Hague Convention on the Civil Aspects of  International Child Abduction, art. XXV. As referred in Susan Mackie, Procedural Problems in the Adjudication of International Articles XXII, XXIII and XX list the exceptions to the mandatory return policy.

[41] Article XII provides the exception if the child has been in retention for longer than one year and is now “settled in its new environment.” As referred in Susan Mackie, Procedural Problems in the Adjudication of International Parental Child Abduction Cases (1996)10 Temp. Int’l & Comp. L.J. 445, 466

[42] Ibid

[43] Voluntary returns however, tend to occur more frequently in cases where Convention proceedings have already been initiated but have not yet reached the final stage of decision. Second Special Commission, at pt. III, Response to Question 16.

[44] Preamble to The Hague Convention on the Civil Aspects of  International Child Abduction

[45] Supra note 8,  Elisa Pdrez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention

[46]  The Hague Convention on the Civil Aspects of  International Child Abduction (1980).

[47] Cantwell, Nigel (2014). The Best Interests of the Child in Inter country Adoption, Innocenti Insight, Florence: UNICEF Office of Research.

[48] Ibid

[49] ibid., Art. 13(b).

[50] ibid. Art. 1 (b).

[51] The Family Courts Ordinance (1985), available at: http://bdlaws.minlaw.gov.bd/pdf_part.php?id=682(link is external). The Guardians and Wards Act (1890), available at: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64(link is external).

[52] Ibid Section 5(e),

[53] Nowrin Tamanna, Muhammad Amirul Haq & Sara Hossain, Muslim Women’s Right under Bagladesh Law: Provisions, Policies and Pratices related to Custody and Guardianship,(2011) SAILS, Dhaka, p 13

[55] The Guardians and Wards Act (1890), Section 17 (2), available at: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64(link is external).

[56] Ibid Section 17 (3),.

[57] Sultana Kamal, Law for Muslim Women in Bangladesh, available at: http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx(link is external).

[58] Ibid

[59] Sharon Laily is referred in the case of , Anika Ali v.  Rezwanul Ahsan, High Court Division in Civil Revision No.4310 of 2010, p 13

[60] Ibid

[61] Abu Baker Siddique vs. SMA Bakar, 38 DLR (AD)106

[62] Abdul Jalil and others vs. Sharon laily begum jalil, 50 dlr (ad) (1998) 55

[63] Ibid

[64] Ayesha Khanam v Major Sabbir[1993] 13 BLD (HCD) 186 per Justices Anwarul Haque Chowdhury and K.M. Hasan at paras. 9 and 15.

[65] Ibid

[66] Supra 60, Abu Baker Siddique vs. SMA Bakar,

[67] Ibid

[68] Johara Begum v. Maimuna Khatun [1964] 16 DLR 695 per Justice Hasan at para. 13

[69] Parental Right vs. lehal guardianship, Free Advice, (Child Guard) March 24, 2018 avilable at https://forum.freeadvice.com/threads/parental-rights-vs-legal-guardianship.399781/

[70] Nowrin Tamanna, Muhammad Amirul Haq & Sara Hossain, Muslim Women’s Right under Bagladesh Law: Provisions, Policies and Pratices related to Custody and Guardianship,(2011) SAILS, Dhaka, p 13

[71] Ibid

[72] Ibid

[73] Supra note 55 Nowrin Tamanna, Muhammad Amirul Haq & Sara Hossain, Muslim Women’s Right under Bagladesh Law: Provisions, Policies and Pratices related to Custody and Guardianship

[74] Zahida Ahmed (Liza) v. Syed Noor Uddin Ahmed and Another ( 2009) 14 MLR (HCD), pp.465-471.

[75] Supra note 6, Nowrin Tamanna, Muhammad Amirul Haq & Sara Hossain, Muslim Women’s Right under Bagladesh Law: Provisions, Policies and Pratices related to Custody and Guardianship p. 21

[76] Supra note 59, Zahida Ahmed (Liza) v. Syed Noor Uddin Ahmed and Another,  para 17

[77] Abdul Jalil and others vs. Sharon Laily Begum Jalil, 50 DLR (AD) 55

[78] Ibid

[79] Ibid

[80] Ibid

[81] Vishal Malhotra ,H.R. 3212 (113th): Sean and David Goldman International Child Abduction Prevention and Return Act, 2014.As referred in M.A. Sharma, Private International Law: South Asian State’s Practice, S.R. Garimella and S. Jolly (eds.), Private International Law, DOI 10.1007/978-981-10-3458-9_10

[82] Ibid