OCTOBER 17: Separation and divorce represent the death of a marriage but for a child caught in the middle and too young to understand the significance of visitation rights it could mean the ‘death’ of a parent. The tearful reaction of a six-year-old girl to the Supreme Court’s decision to hand her back to her Tajik-origin mother after the little girl was recovered from the estranged Pakistani husband highlights the emotional turmoil that a child is usually subjected to in legal custody battles. In a case last year, a nine-year-old boy reacted in similar fashion when a court decided to restore custody to his French-origin mother.
Such incidents have raised the question of whether traditional court litigation, as provided for under the Guardians and Wards Act 1890 — the major law governing child custody in Pakistan — is the best approach to family-conflict resolution. There is nothing wrong with its principle that the welfare of the child is paramount when deciding custody. Nor is there anything intrinsically wrong with its general rule, i.e. mothers be given preference in the custody of minor children whether male or female.
But quite often such litigation proves damaging for both the children and the parents. In considering the rights of mothers and balancing those of the father, what is due to the child, i.e. the right to go with the parent he or she prefers, is often overlooked. Elsewhere in the world, estranged parents are increasingly being encouraged to resolve child custody issues through mutual agreement. This is usually done through out-of-court (though with legal help) dispute-resolution processes like mediation and collaborative law. The latter is a relatively new legal approach to family-conflict resolution involving lawyers and family professionals, and is increasingly gaining acceptance in many countries. Encouraging such non-traditional processes would warrant a review of the 1890 act.
Published by Daily Dawn on October 17, 2010