Role of Punjab Judicial Academy in the Administration of Child Custody Justice

Role of Punjab Judicial Academy in the Administration of Child Custody Justice

This article will discuss whether it is the function of Punjab Judicial Academy under the provisions of Punjab Judicial Academy Act 2007 to develop training courses related to the administration of justice, including through the use of information technology, with special regard to resolution and adjudication of child custody matters and matters that revolve around the welfare of the minor.

Litigation in Pakistan, especially under the Guardians and Wards Act 1890, is a nightmare. Fighting child custody litigation is a cumbersome, slow and nerve wracking procedure that on average takes 5-7 years. Most of the procedures and precedents adopted by guardian courts have favored the custodial parent and have been manipulated and used by parties to only seek revenge by making it extremely difficult for the non-custodial parent to meet his or her own children.

It has been witnessed that guardian courts are very stringent when it comes to the visitation rights of a non-custodial parent. In most cases, the interim visitation schedule granted to a non-custodial parent is only allowed once a month in the form of a two hour long meeting with the child and that too within court premises. Over many decades, such visitation orders have been considered as precedents by default across all guardian courts in Pakistan.

Despite the fact that the welfare of a minor is supposed to be the paramount consideration before a court of law and falls under a quasi parental jurisdiction that a family/guardian court is supposed to exercise while acting as locus parentis, our family/guardian courts – without extending any reason or justification as required under the provisions of Section 24-A of the General Clauses Act – chalk out a visitation schedule comprising of an extremely restricted access of merely 2 hours, once or twice a month, within court premises and under the supervision of the court’s bailiff. Strangely, the friends and family members of the custodial parent are also allowed to remain within the visitation area where they can potentially interfere with the already restricted time, thereby not allowing free interaction between the child and the non-custodial parent.

Based on the data collected by the author, guardian/family courts in the province of Punjab are seen to be passing stereotypical orders in matters pertaining to visitation schedules which neither reflect a fair exercise of power vested in guardian courts under the law, nor do they follow or adhere to the cardinal principles of law set out by the latest judgments reported on the subject of ‘at home’ visitation rights.

It is pertinent to mention here that in a recent reported judgment, 2018 MLD 1592, the honourable Lahore High Court has held the following:

Welfare of minor was prime consideration before the Court, admittedly, respondent was father of the minor and being the natural guardian he had right of his supervision under the Islamic Law, therefore, on separation of the parents the minor could not be permanently deprived from the love and affection of either of the parents—Minor, in the present case, had crossed the age of six years, therefore, he should have maximum interaction with the father even if the custody was with the mother, otherwise, it may cause an estrangement in the mind of the child which may ultimately leave a vacuum in the accomplishment of his personality for deprivation of love, affection and company of his father—Court, in order to achieve such goal, was to make every possible effort to chalk out reasonable visitation schedule in friendly atmosphere—Meeting of the minor in the Court premises with the father was neither conducive nor effective and did not serve the purpose of meeting, therefore, welfare of the minor was in meeting with the father at his residence.”

It is alarming that the learned courts are deciding applications filed for the grant of interim visitation rights to non-custodial fathers under Section 12 of the Guardians and Wards Act 1890 for reasons completely unknown to the author and in clear contravention to the principle mentioned above. It is pertinent to be noted that guardian/family courts in the province of Punjab follow a customary practice while adjudicating upon child custody rights, especially at the interim stage, in a manner that is patently illegal. The trial courts (guardian and family courts) have essentially stopped using the provisions of Family Courts Act 1964 in matters pertaining to visitation rights. Even when they proceed under the provisions of the Family Courts Act 1964 in some cases, they do so without resorting to the provisions of the Schedule attached with the Family Courts Act and thus act in violation of the provisions of Section 5 of the attached Schedule. Furthermore, the trial courts mostly act under Section 12 of the Guardian and Wards Act 1890 taking it as a substitute and alternative to the provisions of Section 5 of the Schedule attached with the Family Courts Act 1964.

The non-application or wrong application of the provisions of Family Courts Act 1964 in child custody matters often leads to a situation where those who may not be entitled to benefit under the Act do benefit, while those who may fully deserve protection and benefits under Section 5 of the Schedule attached with the Family Courts Act 1964 are denied protection.

It is often witnessed that the learned presiding judicial officials at guardian/family courts have developed a tendency to mostly proceed under Section 12 of the Guardian and Wards Act 1890 under the mistaken notion that the provisions of this section are substitutes and alternatives to the visitation rights of non-custodial parents protected under the provisions of Section 5 of the Schedule attached with the Family Courts Act 1964, due to failure on part of the Punjab Judicial Academy to develop training courses relating to the administration of family justice – including through the use of information technology – and its inability to impart proper training and education to the learned civil judges.

Apparently, absence of prompt decision-making by the learned guardian judges is directly related to the training imparted at the provincial Judicial Academy in Lahore. The Punjab Judicial Academy is an institution created to impart training and education to the learned judicial officers through conferences, seminars, lectures, workshops and symposiums related to court management, administration of justice, law and development, and legislative drafting under the provisions of the Punjab Judicial Academy Act 2007.

However, over the years, the non-negotiable principle on the basis of which cases regarding the visitation of children are decided is that of the ‘welfare of the minor child’ which attempts to enable each child to survive and reach his or her full potential. Despite its widespread recognition as a relevant consideration, and in a majority of cases as the only consideration, the manner in which the welfare principle occurs in our legal and judicial framework has certain problems which need to be addressed.

Firstly, there is disparity in the relevance accorded to this principle by different laws regulating custody and guardianship. Secondly, there is uncertainty and lack of judicial consensus on what exactly constitutes welfare of the child and as a result, in fiercely fought custody battles, there are no ways to ensure that the interests of the child are actually protected. Thirdly, the legal framework is silent on how visitation issues should be handled, what factors should be relevant in decision-making and what the process of dispute resolution should be between parents over a child’s custody, among other things. Fourthly, although there are no codified rules governing custody, decision-making in this area is based on the presumption that the welfare of the child essentially lies in custody being awarded to any one of the parents, assessed comparatively.

Apparently, the training staff at Punjab Judicial Academy is extending a flawed and outdated training to the guardian/family court judges, causing acute hardship to not only the minors already affected by a divorce but also to the parent, especially the father, being denied regular and free access to the children.

It is significant to observe that due to the flawed training extended by the training staff at Punjab Judicial Academy, guardian/family court judges exercising quasi parental jurisdiction throughout the province of the Punjab have absolutely no knowledge about the therapeutic nature of child custody jurisprudence. The stance of the author is further fortified with the fact that the guardian/family court judges are adamant in not acknowledging a simple fact that a child wants to share his or her joys and sorrows, failures and successes, with his or her parents simultaneously and such simultaneous association is required for the healthy upbringing of the child which cannot be possible with restricted access of the minor to his or her biological parents without any reason assigned thereof. It is pertinent to reiterate here that a child must get a sense of belonging and social security that he or she is not part of a broken family. In the absence of simultaneous association with both the parents, the child misses completeness of his or her relationship. Therefore, shared custody may be an option available to the court to offer to parents and make them aware of not only their child’s needs but also the child’s rights. Hence, I personally believe that the Punjab Judicial Academy must develop a new syllabus and impart training to the learned guardian /family court judges with the latest concepts about shared parenting and joint/equal custody.

It is stated here with regret that separation can be shocking for a child who believes that his or her family has been destroyed. It gives rise to fear about the future as well as anger in the minds of children who do not understand who to blame. There is a possibility of self-blame as well as a feeling of guilt. Most children want contact with both parents on a regular basis and if it is denied then they can become hostile towards the once loved but now non-custodial/ absent parent. If a custodial parent speaks ill of the absent parent, the child tends to identify with that sentiment. Gradually, a feeling of not needing the absent parent develops and this gradual parental alienation becomes part of the child’s life which could even lead to social alienation. Alienated children tend to show contempt and withdraw affection when they are in contact with the other parent. Physical estrangement adds to emotional alienation. To curb this estrangement, the legislature has introduced the concept of visitation rights, which are being given statutory protection under Clause(e), Section 5 of the Schedule attached with the Family Courts Act 1964. However, as far as proper knowledge and education being imparted to the learned guardian/family court judges across the province of Punjab by the Punjab Judicial Academy is concerned, the concept of visitation rights has not received due acknowledgment by our lower judiciary so far.

It is significant to note here that the Punjab Judicial Academy at Lahore is established under the Punjab Judicial Academy Act 2007 (Pb Act XV of 2007) and one of the most fundamental functions of the Academy is to develop training courses related to the administration of justice, including through the use of information technology, in addition to holding conferences, seminars, lectures, workshops and symposia related to court management, administration of justice, law and development and legislative drafting. It is significant to be noted here that the Academy has conducted more than 37 training sessions in the year 2017, including 7 sessions for District and Sessions Judges, 14 for Additional Sessions Judges, and 16 training sessions for Civil Judges. However, not a single training session has been conducted for guardian/family court judges regarding the therapeutic nature of jurisprudence that they will be exercising while presiding as guardian judges.

The term “welfare of the minor” has nowhere been defined in any of the laws regulating child custody litigation in Pakistan, may it be the Family Courts Act 1964 or the Guardian and Wards Act 1890, therefore, it is a matter of absolute discretion for the presiding officer of the court to evaluate individual matters based on the facts and evidence produced before the court.

The provisions of Section 5 of the Family Courts Act Schedule are reproduced below for a better understanding of the term “visitation rights”:

“5. Custody of children [and the visitation rights of parents to meet them].”

Accordingly, visitation means a non-custodial parent’s period of access to a child. A visitation right means a non-custodial parent’s or grandparent’s right protected by the court, or a privilege of spending time with a child or grandchild who is living with another person, usually the custodial parent. A visitation order means an order establishing the visiting times between a non-custodial parent and his or her children. Although the non-custodial parent is responsible for the care of the child during these visits, visitation differs from custody because a non-custodial parent and child do not live together as a family unit. Hence the word “parents” has been categorically mentioned in Section 5 of the Schedule attached with the Family Courts Act 1964, which grants visitation rights to not only the non-custodial parent but also to the grandparents of the minor.

A Division Bench constituted by the Lahore High Court in Writ Petitions No. 28566/2011 sought a report from the head of the Applied Psychology department at University of the Punjab, Lahore, which was accordingly submitted. A strong recommendation was made in that report for the conduct of frequent visitation between the minor child and his or her non-custodial parent during the interim stage of litigation, however, the same was never considered by the Academy in developing new courses, for reasons not understood by the author, despite the fact that the recommendation had been conveyed to the Academy a number of times.

Many non-custodial fathers involved in child custody litigation across Pakistan have been aggrieved by the arbitrary and capricious practice being followed by our family/guardian courts and they have not only suffered in the form of losing their bond with their minor children after divorce but also in terms of heavy financial burdens for which neither the law nor the courts provide any compensation.

Keeping in view the facts and circumstances narrated above, it is the need of the hour for Punjab Judicial Academy to review its present syllabus imparted to the learned family/guardian court judges prior to their appointment as a family/guardian judge, as well as after their induction, and develop a training course comprising of material on the positive effects of frequent at-home visitation/access between minor children and non-custodial parents during the interim stage of child custody litigation, with a view to enhance the capacity and disposal rate of the family/guardian court judges adjudicating child custody matters across 36 districts across the province of Punjab.

It is, therefore, most humbly suggested through this article that the Punjab Judicial Academy must develop a training course to be imparted to the learned family/guardian judges in their pre-service training programs for the year 2019-20, based on the premise that a divorce or separation occurs between spouses and not between parents, and that a minor has not contributed to it and hence must not be penalized. The course/syllabus/teaching material must cover concepts like quasi parental jurisdiction, loco parentis, denial of appropriate contact with minor children and its implication, expeditious disposal of applications pertaining to visitation rights, and measures that are required to be taken up by the guardian/family courts at the interim stage of litigation to avoid development of the signs of parental alienation syndrome and estrangement in minors. It must also be ensured that the learned family/guardian judges adhere to the provision of plausible justification and reasoning while chalking-out an interim visitation schedule and passing an order under the provisions of Section 12 of the Guardian and Wards Act 1890, except in accordance with the law propounded by the superior judiciary in the form of reported case-law on the subject.

———-

References

  1. Constitution of Islamic Republic of Pakistan
  2. Family Court Act 1964
  3. General Clauses Act 1897
  4. Guardian & Wards Act 1890
  5. Report of the Director, Applied Psychology, University of the Punjab, submitted in Writ Petition 28566/2011
Citations
  1. PLD 2018 Balochistan 44
  2. MLD 2018 Lahore 1592
  3. CLC 2017 Lahore 1747

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Fahad Ahmad Siddiqi

The writer is a Lahore based lawyer advocating for adoption, the application and implementation of principles of shared parenting, and the rights of non-custodial parents involved in child custody litigation in Pakistan. He can be reached at qaslaw@gmail.com



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43 Comments

  1. Adeel Ch said:

    Author has comprehensively explained the lack of punjab judicial academy regarding the training of family/guardian judges regarding the shared parenting concept, the facts are shocking for me that not even a single session was carried out at PJA for family judges. Subject matter really needs attention

  2. Toqeer Hussain said:

    Judicial Academy must educate judges and the the judges must start thinking out of the box they must consider the new research carried out on the effect of restricted contact with either of the parents. They must consider the view points of the people who are working with defecation and commitment on the subject of shared parenting for divourse affected children i recommend Fahad Ahmad Siddiqui advocate high court is the most dedecated person and has done tons of work in this regard him and people like him just me involved in for opinion building in this regard.

  3. Sajid Khan said:

    This article is very informative and should be implemented in our child custody cases, also Guardian judge have to understand and these things keep in mind while making a visitation schedule.

  4. Shahzad said:

    very informative and Guardian judge have to understand and these things keep in mind while making a visitation schedule .

  5. waqas said:

    Very informative article and should be implemented all over the country. I wish that the concerned people take a leaf out of this and feel the pain of non custodial parents. It is high time that the concept of shared parenting be introduced in Pakistan.

  6. Hafiz Masood Umar said:

    This article is very informative and should be implemented in our child custody cases, also Guardian judge have to understand and these things keep in mind while making a visitation schedule.. They must consider the view points of the people who are working with defecation and commitment on the subject of shared parenting for divourse affected children i recommend Fahad Ahmad Siddiqui advocate high court is the most dedecated person and has done tons of work in this regard him and people like him just me involved in for opinion building in this regard

  7. Mujtaba Leghari said:

    A lot still needs to be done to give equal rights to the non custodial parents.The welfare of the minor is ultimately to be attached to both families.

  8. Mujtaba Leghari said:

    As the article elaborates there are so many points that can be implemented by the courts to redress the grave situation of the mionrs as well as the non custodial parents.

  9. KHALID said:

    VERY NICE AND INFORMATIVE ARTICLE, CHILD CUSTODY IS THE EQUAL RIGHT FOR BOTH PARENTS BUT IN PAK IT IS ONLY CONSIDERED AS THE MOTHERS. I PRAY THAT THIS ARTICLES HELPS IN GIVING EQUAL RIGHTS TO BOTH THE PARENTS.

  10. Abid Islam said:

    The equal sharing should be exercise by the judicial officers but unfortunately the reality is entirely or almost entirely different and parliament media and supreme court is not paying attention on this issue. A family is broken but the relationship between the children with both is not broken but unfortunately we are not given the rights been a non custodian father hardly three to four times visit is made after a hectic efforts with police help and warrants etc. But this hasn’t affected the minds of judicial officers that what kind of impact is been given to the minor when police arrived to take the minor. Now the judicial officers should take some speaking orders against the culprit custodians and lawyers as well who misguided the parties….

  11. ureeda mubshat said:

    Do the best you can in every task, no matter how , it is the best efert for the welfare of minors . May Allah bless u with every possibly success .

  12. Rafique said:

    Maximum home visitation is much better ..A father is qudarti Walli ..Custody and guardianship is divided 50% if Equal Parenting is implemented6

  13. Jawad said:

    Very nice and detailed article about the curriculum of Punjab judicial Academy and in the real practice opted by the honourable family judges. The visitation rights and meetings of 2 hours is a slap on the face of Non custodian parent. The judicial academy and other forums of the Judiciary must implement the clauses of Guardian & Wards Act 1890 in true spirit.

  14. Toqeer Hussain said:

    Restricted contact with children will creat more Taheer Fatimas. Either ignored by a parent him/her self or allowed minimum contact/visitation by guardian court.

  15. Aiesha butt said:

    It is very informative &helpful for parents as well as fir guardians ‘first of all matter should b resolve smothly ‘if not then this process should take minimum time

  16. Hamza said:

    2 hour visitation in court premisis is not enough for father how he can give internal feeling cares etc from heart in court there is no such envirment for this. Visitation should be in home so child and father shows love care etx to each other in good envirment

  17. Arslan said:

    Brilliant Work…

    Jazakallah Sir … Allah Give You More Blessings To Work On Shared Parenting System Which is in the Favour of Our Minors & All NCP’s , I Miss My Daughter , Im Not Financially Strong Enough To Have Maintain Long Legal Terms in Court bcoz I cant Afford But im Struggling Hard …
    Sir.. With Your Guidance & Efforts inshallah some day we will be able to live with our childrens like normal fathers…

    Allah Bless You Sir…
    Our Prayers Are With You….

  18. QURAT advocate said:

    Its really informative article and helping for noncustidial parents issues and rights ..that’s true now time to take bold step juducary system need to understand the rights of ncps … both parents have equal rights and childs welfare depends on both parents … #equal parenting right # ncps home visitation right

  19. Tariq Parvaiz Khan said:

    Very informative article where problems and hurdles being faced by Non custodial parents were comprehensively explained and the welfare of the minor always put on the back in our current judicial system which is due to lack of expertise of the judges in relevant law and lack of training of family/guardian judges regarding the shared parenting concept, the facts are alarming that not even a single session was carried out at Punjab Judicial Academy for family judges. Subject matter needs immediate attention, as the judges intentionally or unintentionally are playing with the welfare of minors.

  20. Khalood Sarwar said:

    Equal parenting is an important issue to be discussed about and this article encompasses essential ingredients of it . But there is one impediment in actual practice of this law ; that is , cases of abduction of minor by non-custodial parents and court procedures are slow to get the minor back to custodial parent. Equal parenting is possible if court implement these laws on ground and bound both the parties to remain within given jurisdiction and in case of breaking the law , speedy justice must be ensured as it will help reduce the paranoia of custodial parent

  21. Waseem Ahmed said:

    The role of Judicial academy should be reflected in the judgments of the Learned judges that it has trained, so far that is not the case. At the moment, at least family and Guardian judges are passing orders on already flawed and imperfect templates changes only case numbers and party names, like stamp vendors.

  22. Waseem Ahmed said:

    The role of Judicial academy should be reflected in the judgments of the Learned judges that it has trained, so far that is not the case. At the moment, at least Family and Guardian judges are passing orders on already flawed and imperfect templates akready saved in their PCs, changing only case numbers and party names, like stamp vendors.

  23. Atif said:

    Equal parenting is an important issue to be discussed about and this article encompasses essential ingredients of it . But there is one impediment in actual practice of this law ; that is , cases of abduction of minor by non-custodial parents and court procedures are slow to get the minor back to custodial parent.

  24. Toqeer Hussain said:

    If tme minors of this country are suffering due to the lack of knowledge and training of the judges, it can’t be worse for a socity the punjab judicial academy must step in and upgrading the level of knowledge of the judges and make sure that they know the the latest trends which other countries are following also the must know the rules of Islam regarding such matters.

  25. Toqeer Hussain said:

    If the minors of this country are suffering due to the lack of knowledge and training of the judges, it can’t be worse for a socity. The punjab judicial academy must step in and upgrading the level of knowledge of the judges and make sure that they know the the latest trends which other countries are following also thy must know the rules of Islam regarding such matters

  26. Mrs Farah Waheed advocate said:

    This article is very informative and comprehensively grip for all aspect regarding all family main problem this engaging article broadcasted the influence of all problematic aspect of the Judiciary system if your concept w e r e to be implemented into the Judiciary system it would be beneficial to both custodian and non custodial parent I think it should be implemented all over the Pakistan

  27. Irfanbaloch said:

    Mr Fahad has not only analysed the core issues relating to Child Custody laws drawbacks ..moreover he has gone beyond into providing new dimensional approach..as.to guide the judiciary being capable to provide relief to all invoved parties in Child litigation ..As a Social Activist ..we are commited to extend any posdible help likewise ..Wish him best of luck

  28. Madeeha said:

    Custody meaning in Urdu is qaid and last 70 years our judicial system are the qaidi of custodial parent especially mother. I don’t understand how the judges judge the love of a parent and what the parameters they have for non custodial parent . mother loves her kids as well as father also love how our judicial system compare who loves most. This article raised good question for legal experts ,Punjab judicial academy and guardian judges.Both parent have equal right to make decision about the child schooling, health care and religious upbringing. Especially grandparents have very important role in child Life. their love ,their experiences will always help the kids to face the challenges of life.hope this new government will understand the pain of non custodial parent and the national assembly pass a new act regarding child custody and visitation

  29. Nouman said:

    It is very important subject. Mr. Fahad is highlighting this subject for our kids who are suffering because of separation of parents. So welfare of minor is important therefore according to Muslim community our jugdes should be well aware of the rights of minors for their meeting with parents.

  30. Amir Ahmad said:

    Wonderful and very informative article
    Should be publish in large No and distribute in all guardian Courts across Pakistan
    JazakAllah Fahad bhai for this sincere effort

  31. Amir Ahmad said:

    فہد بھای حقیقتا یہ ایک بہت اچھی کاوش ہے ۔ ہمارے عدالتی نظام کو واقعی بدلنے کی ضرورت ہے ۔ نہ جانے کتنے نان کسٹوڈیل پیرنٹس اس فرسودہ نظام کی بھینٹ چڑھ چکے ہیں ۔ اور کتنے چڑھنے والے ہیں۔ ۔ یہ آڑٹیکل موجودہ عدالتی نظام کے لیے ایک سوالیہ نشان ہے ۔ کاش ارباب اختیار اس پہ تھوری توجہ فرمایں
    جزاک اللہ

  32. Hammad peracha said:

    Despite all what the judiciary doing or will be doing
    Can they change the mind set of the dominating parent on the kids… can they bring back the childhood which is lost im years of justice served..

    Thats not wining for any one

    Wining for all could be if the court orders the 1st day that kids will meet weekly with the depleted parent whether he / she wins or loses the custody and what not.

    Thats justice… thats in their hand.

    I lost the kids love happiness and their innocense just because their is leverage in law of the land which was exploited whether by lawyers or gender specific.

    Wana give us change … then change the mindset and model of time management or change the time period…
    But dont change our kids into nemesis who use the parents feelings and love as they are trained like a solider at a very young age to destroy the destroyed soul..

    Hope they can if they Will ………

    Rgds
    Hp

  33. Kanwal kazmi said:

    Very informative article ALLAH Almighty give u more success for ur hardworking. And it’s really helping article for non custodial parents sir as the article elaborates there r many points that can b implemented by the courts to redress the crucial situation of the minors as well as the non custodial parents.. Hats of to u Sir Fahad stay blessed and happy

  34. Kamran Adil said:

    Good conceptual work. Contributing to both society and law.

  35. Farrukh Sulehri Advocate said:

    A thought provoking, a well pointed issue of the society… great article…

  36. Abdul rasheed butt said:

    حقیقتا یہ ایک بہت اچھی کاوش ہے ۔ ہمارے عدالتی نظام کو واقعی بدلنے کی ضرورت ہے ۔ نہ جانے کتنے نان کسٹوڈیل پیرنٹس اس فرسودہ نظام کی بھینٹ چڑھ چکے ہیں ۔ اور کتنے چڑھنے والے ہیں۔ ۔ یہ آڑٹیکل موجودہ عدالتی نظام کے لیے ایک سوالیہ نشان ہے ۔ کاش ارباب اختیار اس پہ تھوری توجہ فرمایں
    جزاک اللہ

  37. Junaid Iqbal said:

    It is superb and beautifully written……but is it applicable in true situations…??

    Secondly what abt sindh courts where all judges are not familiar with family court rules. Not even they know how to deal with such cases. They think that a NCP is a criminal and they treat him like that way.

    Very sorry to say this that here in sindh most of the judges are sindhi and they facilitate their language persons whether they are gulity or not.?

  38. Toqeer Hussain said:

    Chield custody is a very critical matter because it deals with the future of a chield so only dpecialzed judges should be placed in guardian courts. Therefore judicial academy should start training programmes for the judges and then only trained judges should be given position of a guardian judge.

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