Diplomacy Without a Treaty: MOUs, Liaison Judges, and What Actually Works When the Convention Doesn't Apply

Executive Summary

Roughly half the world's countries are outside the Hague Abduction Convention — a belt that includes Egypt, Jordan, the UAE, Saudi Arabia and, until 2016, Pakistan. In that belt, foreign custody orders have no direct force and a left-behind parent begins from zero. Governments filled the gap with a substitute toolkit — memoranda of understanding (MOUs), consular commissions, and judicial protocols — and the honest record is this: **MOUs of the access-and-voluntary-resolution family promise communication about children, not movement of children**, and measured by returns their yield has been minimal. The one instrument that built a real return principle was created by two judges, not diplomats: the 2003 UK–Pakistan Judicial Protocol. Its arc is the lesson — sub-treaty engagement is not a substitute for joining the Convention but a rehearsal for it, as Pakistan's own 2016 accession showed. And after accession comes the homework SafeReturn keeps naming: under Article 38, "joined" means different things for different country pairs. This is educational, not legal advice.

Introduction

Article #8 mapped the world's largest treaty-free corridor, India. But India is one country in a wide belt of jurisdictions outside the Hague system — including Egypt, Jordan, the UAE, Saudi Arabia and, until recently, Pakistan — where family law is built on premises the Convention never contemplated, foreign custody orders have no direct force, and a left-behind parent's legal position begins from zero.

Governments have not been idle in that belt. For thirty years they have built a substitute toolkit: memoranda of understanding, consular commissions, judicial protocols. The record of that toolkit — what each instrument actually does, and what it demonstrably does not — is among the most practically important knowledge in this field, because it tells parents in treaty-free corridors what to expect and tells policymakers what to build next. One instrument stands above the rest, and it was invented not by diplomats but by two judges.

Legal Background: what "no Convention" actually means

The Hague Convention's core mechanism is a return remedy: it sends a wrongfully removed child back to their country of habitual residence so that country's courts can decide custody. (As throughout this series: a Hague return decides only the forum — which country hears the welfare question — not who ultimately gets custody. Return ≠ custody.) In a non-Convention corridor, none of that machinery exists. There is no obligation to return, no six-week aspiration, no Central Authority pairing, and foreign custody orders are not enforced as such — a court in the destination country applies its own family law from scratch. The instruments in this article (MOUs, protocols, liaison-judge channels) are attempts to build some of that missing structure by agreement rather than treaty. And even when a country finally joins the Convention, Article 38 means the accession binds only those existing member states that formally accept it — so membership is a lattice of pair-by-pair relationships, not a single switch.

What happened

On 17 January 2003, Dame Elizabeth Butler-Sloss, President of the Family Division of England and Wales, and Chief Justice Sheikh Riaz Ahmad of the Supreme Court of Pakistan signed the UK–Pakistan Judicial Protocol on Children Matters — to this day the most developed non-Hague arrangement ever created. Its text fits on a page, and its two ideas are the Hague Convention's own, rebuilt without a treaty:

1. The home-country principle. Abducted children should be returned to the country where they normally live, for that country's courts to decide their welfare — and the Protocol states that its principles apply "without regard to the nationality, culture or religion of the parents." That phrase, agreed by the senior judges of a Muslim-majority and a Western jurisdiction together, quietly answered the assumption that no common ground existed.
2. Liaison judges. Each country designated named judges to communicate directly about individual cases — so that a court in Lahore knows what a court in London ordered, and vice versa, in days rather than through years of diplomatic relay. This judge-to-judge wiring predated and helped inspire the now-global International Hague Network of Judges.

The Protocol produced real, reported returns in both directions and became the template every "how do we deal with non-Hague states" discussion cites. Its honest record also includes the caveats reunite's 2020 Pakistan guide documents: application was never fully consistent, awareness varied across Pakistan's courts, and outcomes depended heavily on which judge a case met. A protocol is judicial culture, not law.

Then came the ending the field should study most: Pakistan acceded to the Hague Convention itself in 2016 (in force 2017). The Protocol era served as the bridge to membership — evidence that sub-treaty engagement is not a substitute for accession but a rehearsal for it. One caveat travels with the good news, and it is SafeReturn's signature legal point: under Article 38, an accession binds only those existing member states that formally accept it — so "Pakistan joined" means different things for different country pairs, and every parent must check their specific pair [the pair-checker principle; T03 dataset].

The MOU record — measured by returns

Below the Protocol sit the memoranda of understanding, and the record demands plain statement. It is worth stressing that the criticisms below are the United States government's own determinations, published in its 2025 Annual Report on International Child Abduction (covering calendar year 2024) — not SafeReturn's characterizations of these countries.

• US–Egypt MOU (October 2003): the State Department describes it as an agreement "to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children." Encouraging voluntary resolution is precatory language, not a binding return mechanism — and in its 2025 report the Department found that Egypt "continued to demonstrate a pattern of noncompliance," with the competent authorities having "persistently failed to work with the Department of State to resolve abduction cases," leaving 73% of return requests unresolved for over a year. As US family-law attorney Jeremy Morley has assessed, the MOU has in practice produced consular access but effectively no returns.
• US–Jordan MOU (2006): the State Department describes it in identical terms — "to encourage voluntary resolution of abduction cases and facilitate consular access." In the 2025 report the Department found Jordan "demonstrated a pattern of noncompliance," again "persistently failed to work with the Department of State to resolve abduction cases" (43% of requests unresolved past a year), across 16 return cases involving 29 children in 2024 — the MOU notwithstanding [US 2025 report, Jordan page].
• US–Saudi Arabia MOU: a similar access-and-consultation instrument, published by the State Department — same architecture, same structural limit.
• UAE: no meaningful bilateral instrument. In the 2025 report the Department found that the UAE "continued to demonstrate a pattern of noncompliance," with authorities who "persistently failed to work with the Department of State to resolve abduction cases" (12 cases, 19 children) [US 2025 report, UAE page].

Two things bear noting. First, "persistently failed to work with the Department of State to resolve abduction cases" is the standard determination the report applies to several non-compliant states (Egypt, India, Jordan and the UAE alike) — it is a legal finding under the Goldman Act, not bespoke prose about any one country. Second, the pattern is architectural, not accidental. MOUs of this family promise communication about children, not movement of children. They matter — a consular welfare visit is not nothing when a parent has heard nothing for a year — but measured by the only metric that finally counts, returns, their yield has been minimal. The US Congress understood this when the Goldman Act ordered the State Department to pursue "bilateral procedures" with non-Convention countries [article #1]: the mandate exists precisely because the existing instruments underdeliver.

And yet children do come home from the treaty-free world: of the 218 children who returned to the United States in 2024, 61 returned from countries adhering to no protocols at all — through negotiated settlements, destination-country courts, mediation, and voluntary returns. No treaty does not mean no hope; it means no machinery — everything depends on the parents, their counsel, and the destination's own law.

The family-law context — stated respectfully

Why do these particular states remain outside? Their family-law systems, rooted in religious law, allocate parental roles through concepts — custody as day-to-day care (ḥaḍāna), guardianship as legal authority (wilāya) — that do not map onto the Convention's "rights of custody," and they do not enforce foreign custody orders as such. From within those systems, a summary-return treaty can look like an instrument that would override domestic family law wholesale. These are considered legal positions, not villainy — and the productive response, as Pakistan's arc shows, is engagement that builds confidence: judicial dialogue, mediation structures, and demonstrations that the Convention's modern practice can accommodate safety and welfare concerns [the India lesson, article #8; the grave-risk safety valve, S19].

What This Shows About the Limits of the Hague Convention Alone

The non-Hague belt shows the Convention's reach ends exactly at its membership line — and that the substitute instruments built to extend it deliver communication far more reliably than they deliver children. The lesson is not that MOUs are worthless (access is real and humane) but that they should be labelled by what they do: an MOU that produces meetings is an access instrument, and calling it an abduction agreement misleads the parents who rely on it. The Convention's true frontier is not its text but its map — and closing the gap means moving countries across the membership line, then doing the Article 38 homework that makes membership real pair by pair.

What Parents and Professionals Should Understand

For parents facing a removal to a treaty-free country, the hard truth — a prompt to act, not legal advice — is that your case lives in the destination's courts, so staff it accordingly: retain local counsel in the destination country immediately; register with your consulate and request welfare visits; use the MOU commission where one exists; treat mediation as the primary realistic lever [article #16]; and avoid self-help absolutely, because in these jurisdictions taking the child back can convert you from petitioner to fugitive [articles #3, #9, #10]. For policymakers, judicial diplomacy is the highest-yield sub-treaty tool — two judges built in one page what decades of MOUs did not, so expanding liaison-judge arrangements into the treaty-free belt is the single most promising incremental reform available. And accession is the endgame — Pakistan's path (protocol → confidence → accession) is the model — after which Article 38 acceptance, pair by pair, is the detail that determines whether your country pair actually has a treaty.

Limitations

This article describes instruments and findings as of the 2025 US Annual Report (covering CY2024) and current guidance; both country performance and the instruments themselves can change. The MOU assessments are the US government's determinations, not independent audits, and other governments may characterize the same facts differently. Return-outcome data for non-Convention corridors is sparse by nature. This is not a substitute for advice from a qualified lawyer in the relevant jurisdiction.

Conclusion

Diplomacy without a treaty is not nothing, but it is not much: memoranda that promise communication, consular visits that keep a thread unbroken, and — rarely — a judicial protocol that actually brings a child home. The one thing that worked best in thirty years was the simplest: two judges agreeing, on a single page, that a child belongs to the country where the child lives, whatever the parents' nationality, culture or religion. Pakistan turned that page into full membership. That is the road for the rest of the belt — and the homework, always, is to check the pair.

Frequently Asked Questions

What can I do if my child is taken to a country that isn't in the Hague Convention? Your case will be decided by that country's own courts under its own family law; there is no automatic return remedy. Retain local counsel in the destination country immediately, register with your consulate, use any MOU/consular commission that exists, and consider mediation. Avoid taking the child back yourself, which can expose you to criminal liability there.

Do memoranda of understanding (MOUs) require a country to return an abducted child? Generally no. The US MOUs with Egypt, Jordan and Saudi Arabia are described by the State Department as agreements to encourage voluntary resolution and facilitate consular access — communication and access commitments, not binding return mechanisms.

What was the UK–Pakistan Judicial Protocol, and did it work? A 2003 agreement between senior judges of England & Wales and Pakistan establishing a "home-country" return principle and named liaison judges to communicate directly about cases. It produced real returns and helped inspire the International Hague Network of Judges, though its application varied by court. Pakistan later acceded to the Hague Convention itself (2016, in force 2017).

If a country joins the Hague Convention, does the treaty automatically apply to my case? Not necessarily. Under Article 38, an acceding country's membership binds only those existing member states that formally accept the accession. Whether the Convention operates between two specific countries depends on that pair — which is exactly why parents should verify their country pair.