The Federal Constitutional Court has issued guidelines for courts and authorities handling custody disputes between parents of different nationalities, saying international child abduction protocols must be respected and foreign custody orders given due consideration. A three-judge 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 that had directed the father to restore custody of his minor son to the child’s mother, Javeria Shahani.

A three-judge 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 that had directed the father to restore custody of his minor son to the child’s mother, Javeria Shahani.

The Sindh High Court had earlier recalled its judgment and ordered that if the father, Muhammad Faraz Shaikh, failed to produce the child before the court, an FIR should be registered under child abduction provisions.

It had also directed the ministries of foreign affairs and interior, along with the Department of Human Rights Affairs, to take all necessary measures to ensure the child was brought before the court. A copy of the order was also sent to the General Court of Justice, District Court Division, State of North Carolina.

In its eight-page judgment authored by Justice Ali Baqar Najafi, the FCC said that in custody disputes involving parents from different countries, courts should consider the jurisdiction of the foreign court that had already issued an order.

The judgment said taking or keeping a child in another country becomes wrongful if it violates the laws, court orders or legal agreements of the country where the child lived earlier.

It added that the child must be returned to that country unless he or she has become fully settled in the new place.

The court further said that once it is informed about the removal of a child, it cannot decide custody independently 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.

The guidelines say local courts should also examine whether the foreign court had proper jurisdiction, whether the case was decided on merit under private international law principles recognised in Pakistan, and whether the judgment was not obtained through fraud or in violation of natural justice.

According to the facts of the case, Faraz Shaikh, a resident of North Carolina and a US citizen, married Javeria Shahani on August 21, 2017. The couple later travelled to Pakistan for a wedding reception and their son, Rohaan Faraz Shaikh, was born in January 2019.

The couple separated on October 2, 2021, after which custody litigation began.

On February 3, 2022, the General Court of Justice passed a temporary custody order, under which both parents were asked to share custody.

The judgment says the father arrived at the agreed exchange location on May 6, 2022, but after waiting for some time, went to the mother’s home and later learned that she had travelled with the child to Karachi.

The mother then filed a guardianship petition before the family judge in Malir and also sought Pakistani citizenship for the child without the father’s knowledge.

On May 9, 2022, the General Court of Justice issued an ex-parte temporary emergency custody order directing the mother to return to North Carolina and hand over the child to the father.

The child was later handed over to the US Embassy in Karachi on February 2, 2024, and returned to the United States.

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