ISLAMABAD: The Supreme Court has asked the state to fulfil its obligation of setting up child friendly courts under specially trained professional judges, since welfare and interest of the minor should be the foundational principle in deciding custody disputes.

“It is the duty of the courts to assess and determine a course that would have served the best interest of the minors,” observed Justice Athar Minallah in a judgement issued the other day.

Any decision regarding the custody of a child without assessment and determination of the child’s welfare and best interests by taking into consideration relevant factors and variables cannot be sustainable, nor can the exercise of discretion be lawful.

The decision came on a family dispute instituted by Shaista Habib, who had challenged the Lahore High Court’s (LHC) Sept 21, 2022 decision which had upheld the handing over of the custody of her child to her ex-husband Muhammad Arif Habib.

Sets aside LHC’s decision in custody case; Justice Minallah observes court cannot turn a blind eye to state’s ‘apparent failure’

While setting aside the LHC order, Justice Minallah in his ten-page judgement observed that the court cannot turn a blind eye to the apparent failure of the state in fulfilling its constitutional obligations of safeguarding the rights of the children embroiled in litigation between their parents.

He said children are vulnerable and traumatic experiences early in life can leave lifelong scars which may profoundly affect the quality of their lives.

Exposure of a child to the environment generally prevalent in ordinary courts could profoundly affect their impressionable minds, he observed.

Moreover, insensitivity or lack of special expertise on part of presiding judges in such matters can gravely affect the children’s rights and thus impact their lives adversely.

Special expertise

The litigation involving the rights of children, such as custody disputes, requires special expertise, training and professional aptitude on part of the presiding judges. The environment of a court dealing with the rights of the children must also cater to their emotional and psychological needs, the judgement said.

The courts must also be adequately equipped and enabled to professionally assess and determine the welfare of a child in each case. They must have access to professional consultation and advice of qualified experts such as psychologists.

The parents and courts must also have access to child welfare and social assistance services to protect and fulfil the rights of each child, the judgement emphasised, adding that Article 35 of the Constitution has explicitly made it an obligation of the state to protect the marriage, the family, and the mother and the child.

It is the constitutional duty under Article 29(3) of the president or the governor of the province, to prepare and lay before the respective legislatures a report in respect of each year regarding observance and implementation of the obligation relating to children under Article 37 of the Constitution.

Likewise, it is an obligation of the state to ensure that the fundamental rights enshrined in the Constitution are protected and fulfilled in the case of children. It is, therefore, implicit in the obligation of the state towards protecting the rights of the children to provide child friendly courts presided by specially trained professional judges.

It is also the duty of the state to enable the child friendly courts to assess the welfare of the child in family matters, such as custody disputes, by providing access to professional consultation and opinions of experts e.g. psychologists etc, the judgement said.

The state is also responsible for providing affective child care and social services to protect and facilitate the fulfilling of the rights of those children who get entangled in custody disputes between feuding parents.

UN convention

It is an obligation of the state under the United Nations Convention of Rights of the Child to ensure their protection and to take all necessary steps for child welfare.

The apex court ordered the registrar of the Supreme Court to send copies of this order to the president and the governors of the provinces to ensure compliance with their respective obligations under Article 29(3) of the Constitution in the context of Article 35.

Copies of the order will also be sent to the director generals of federal and provincial judicial academies to include special training courses for judges and staff of family courts, relating to dealing with child custody cases and to develop their capacity to assess and determine the criterion of welfare of the child, the judgement observed.

Published in Dawn, May 25th, 2024