FCC'den uluslararası çocuk velayeti davalarına yeni ilkeler

FCC sets guidelines for cross-border child custody disputes

ISLAMABAD: The Federal Constitu­tional Court (FCC) on Wednesday issued guidelines for courts and authorities handling custody disputes between parents of different nationalities, affirming that international child abduction protocols must be respected and foreign custody orders given due consideration. The directive came when a three-judge FCC bench, headed by Chief Just­ice Aminuddin Khan and comprising Justice Ali Baqar Najafi and Justice Rozi Khan Barrech, set aside the Sindh High Court’s March 16 order requiring the father to restore custody of his minor son to Javeria Shahani, the child’s mother. While recalling its earlier judgement, the SHC had also ordered that if the father, Muhammad Faraz Shaikh, a US citizen, failed to bring the minor before the court, an FIR be registered under the provisions relating to child abduction. Besides, the high court had directed the ministries of foreign affairs and interior and Department of Human Rights Affairs of Pakistan to take all measures to ensure that the minor was brought before it. It also sent a copy of the order to the General Court of Justice, District Court Division (State of North Carolina), where the matter was cognisable. Sets aside SHC order; says international child abduction protocols must be respected Authored by Justice Najafi, the eight-page FCC judgement highlighted that while dealing with custody disputes in­­v­o­lving parents who are citizens of different countries, the court concerned should consider the jurisdiction of the foreign court that had earlier issued an order. Removing or retaining a child in another country is wrongful if it violates the laws, court orders or legal agreements of the country where the child lived before, the guidelines said, adding that the child must be returned to that country unless he was fully settled in the new place. Also, once a court is notified of the re­­moval of a child, it cannot decide custody on its own unless it first determines that the child does not have to be returned un­­der the Convention on the Civil Asp­e­c­­ts of International Child Abduction, 1980. While dealing with custody disputes between parties of different nationalities, local courts should consider the jurisdiction of the court that had previously issued an order, whether on merits and in proceedings conducted in accordance with the rules of private international law recognised in Pakistan, and whether the judgement was not procured in violation of the principles of natural justice or through fraud. Petitioner Faraz Shaikh, a resident of North Carolina, married Javeria Shahani on Aug 21, 2017. They later travelled to Pakistan for a wedding reception and were blessed with a son in January 2019, namely Rohaan Faraz Shaikh, who holds a US passport. The couple separated on Oct 2, 2021, after which litigation over child’s custody began. On Feb 3, 2022, an order for temporary custody was passed by the General Court of Justice, whereby both parents were told to share custody. In compliance with that order, the petitioner arrived at the usual exchange location on May 6, 2022. After waiting for some time, he went to the mother’s home and later learnt she had flown along with the child to Karachi, where she filed a guardianship petition before the family judge, Malir, and also sought Pakistani citizenship for him without father’s knowledge. On May 9, 2022, the Gen­eral Court of Justice passed an ‘Ex-Parte Temporary Emergency Custody Order’ directing the mother to return to North Carolina and hand over the child to the father. Consequently, the child was handed over to the US Embassy in Karachi on Feb 2, 2024, and returned to the US. Published in Dawn, September 3rd, 2026