Backlog Of Child Custody Cases In Pakistan: Decreasing Delays

Backlog Of Child Custody Cases In Pakistan: Decreasing Delays

Introduction

This research paper intends on formulating a strategy for delay decrease and the prompt clearance of the buildup of cases in child custody jurisdiction. An effort is made through this paper to convey the issues which need to be considered by the superior Judicial Forums of this Country.

Terms like “pendency” or “accumulation of cases” advocate that the problem is momentary. For instance, if the judiciary is slow in one month or one year, yes, it can perhaps make up for that slowness by working more rapidly the subsequent month or the next year.  The existing “backlog” of 90,846 cases (Judicial Statistics of Pakistan, Annual Report 2014), in the Province of Punjab, has built up over decades, due to systemic problems in the total child custody legal system – not only because of how the judges adjudicate cases, but also a range of behaviors of lawyers, contesting parents, the government and the general public. A root cause is our laws regulating child custody litigation as found in family jurisprudence. Our laws and our system of management of cases are incompatible with the disposition and culture of the Pakistani people.

Changes over the last few decades in the formation and function of the Pakistani family, as well as the comparative intricacy of existing family legal issues, challenge judges to assume a fitting jurisprudential attitude that addresses these conversions. The incredible number and extent of family law cases now before the courts, coupled with the decisive role of the family to provide an unwavering and developmental atmosphere for family members, require that judges understand applicable social science study about child progress and family life. An informed perception can aid decision makers to dispense justice aimed at strengthening and sustaining families.

Nearly 40,000 Pakistani couple dissociate each year, and half of these couples have dependent children. Moreover, thousands of couples separate each year, and significant numbers of these couples have dependent children.  Post-separation or post-divorce parenting is, therefore, an everyday actuality for large numbers of Pakistani parents. About 9 in 10 children live with their mothers after divorce or separation. Only about two percent live with their fathers and a very small number live with both parents equally. Although a mere 3% of court orders are for shared custody, the children actually live with their mothers in most of these cases. The devastating majority of Non Custodial Parents are, therefore, fathers. The average parenting agreement awarded by the court gives a Non Custodial Parent a mere ‘two-hour access once in a month and that too to be conducted within the Court premises’, in sheer disregard to the principles of universal application of utmost contact that a child should have as much access to each parent as is consistent with the best interests of the child.

Duration of Custody Case

A standard Family / Custody Case under the Guardian & Wards Act lasts approximately three to five years in the Guardian Courts (Judicial Statistics Report 2014). At an interim stage, Guardian Courts permit an access of two-hour visitation/reunion rights once in a month to a Non Custodial Parent involved. During these years, due to lack of contact between the minors and the non-custodial parents, the parent-child connection keeps on diminishing and often entirely shatters. In the greater part of the observed cases by the author, the custodial parent brain-washes the minors against the non-custodial parent. On top of this, the guardian courts enlarge the problem by not conceding reasonable visitation schedules between children and the non-custodial parent. The non-custodial parent initially struggles and contests the order but then finally gives up after being disappointed. He/she re-marries and starts a new life and bears new children. As a result of this, the minors normally end up losing one of the parents forever.

The Problems

The problems in current practice, procedure, and relief are the following:

• Severing Ties with NCP: At interim stage of litigation a non custodial parent is generally allowed a restricted access to his minor children as little as 2 hours once or in rare cases twice in a month and that too to be held within the Court premises, making him totally incapacitated during the periods of interim and final custody. He/she has no say in a child’s life, no access to the child’s records, be it educational, medical, dental, optical or extracurricular. He/she is allowed but not ensured less than 1% visitation against the custodian’s 99% time. He/she is made a beggar and he/she alone has to protect the already thin connection with the ward. Law in this case takes sides without pretense, by dividing the power between two parents with a ratio of 1 against 99, which stands in total violation with the saying of Holy Quran, “No mother should be harmed through her child and no father through his child”.

• Lack of Judicial Interest: Absence of will from Loco Parentis’ side to keep children connected to both sides of family.

• Arbitration & Counseling: Absence of any obligatory mechanism for contesting couples to go through mediation, arbitration or dispute resolution before entering litigation. Since litigation by its very nature increases hostility and tension between both parties, cannot help a breaking family retain its remaining health.

• Monitoring of Welfare: Absence of any judicial requirement to check the quality and health of custodianship during interim period. Even if a complaint is filed by non-custodial parent about serious educational, behavioral or health issues of his/her ward, no legal action is taken by Loco Parentis to question the custodian’s abilities or/and intentions.

• Evidence: The role, need and utility of evidence in custody cases are unclear.

• Welfare of Minor: Term “welfare of the minor” is not defined anywhere in the Act, nor are there any guidelines to how to determine what is true welfare of a child. Majority  of Guardian Judges stay clear of any attempt to define this term and follow the draconian precedent instead in each and every case.

• Visitation Right: Though available in item No. 5 of the Schedule attached with the Family Courts Act 1964, no definition is available as to whom such rights are available to and for how much time.

• Visitation: There are no rules or systems defined about quantum and frequency of “visitation” in Guardian & Wards Act 1890.

• Surety Bonds: Since only non-custodial is required to provide various heavy surety bonds and other sureties, the custodial parent feel totally free to abduct their own child from non custodial parent close to final decision of the case.

• Unrealistic Precedence: Formatted judicial orders are given, based on precedent instead of logic or common sense allowing non custodial fathers standard 2 hours a month contact and non custodial mothers the same, which can go up to two weekends in a month, against the very mandate of the provisions of Section 24A of the General Clauses Act, 1897.

• Inequality: This extremely unfair division of time between two living parents is in total disregard of Article 35 of the Constitution: “The State shall protect the marriage, the family, the mother and the child”. The legislature in its entire wisdom emphasized the word “family” which includes father, mother and child. Even after a marriage is terminated, the right of the child being able to enjoy the completeness of “family” (equal access to both parents and both sides of the family) is protected under Article 35.

• Denial of Rights: In Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, “right of individuals to be dealt with in accordance with law, etc.”, sub clause (b) “no person shall be prevented from or be hindered in doing that which is not prohibited by law”, clearly directs how a just division of time should be made between two separated parents with their children. No non-custodial mother or father according to the Constitution can be barred from freely meeting her/his children.

The problem of reasonable access to one’s minor child and its implementation has gained prominence in recent years. Non Custodial Parents’ complaints about access denial, and growing concern about finding legal solutions to disputes over the duration of contact that will genuinely serve the child’s best interests. In the backdrop of the type of education the minor child receives in an urban society, he could not develop his emotional attachment with the Non Custodial father if he is not permitted to have a frequent access and for an adequate time or he lives with his father during half of the School Vacation period. Traditional legal sanctions, such as civil contempt, seem to be rarely used, mainly because they are not seen to serve the child’s best interests but also because evidence advocates that contact denial is the one major reason of growth of applications that are filed before our courts. At the same time, concern is growing about the apparent failure of Non Custodial Parents to exercise the access they are awarded. If it is in the child’s best interests to maintain contact with both parents, then clearly it is important that both parents maintain that contact for the child’s sake.

Welfare of Minors

That no precise length or regularity of visitation is defined in the Guardian & Wards Act 1890 for the purposes of meeting, and the matter is left to the discretion of the Learned Guardian Judge, however the basic and supreme consideration to decide a reasonable schedule is the “Best Interest Of The Child Or Welfare Of The Minor”.

In fact, the whole Guardian and Wards Act 1890 is ultimately based on welfare of the minors. The Guardian Judge is obligated to act from a loco parentis position and to think as a wise father or mother would, in order to pass a decision particularly at an interim stage of proceedings pending adjudication before him.

Non Custodial Parent

In the vast majority of the cases in Lahore (Report Submitted by Chairperson of the Department of Applied Psychology, in Writ Petition bearing No. 28566/11) a non-custodial parent has to hang around for months before his/her first official meeting (within the court) with his/her own children. The delay arises due to the faulty/inept system of servicing of the notices. Delaying demonstration in court by not receiving the notice/summon is a common practice – this sounds like the Custodial Parent is purposely avoiding the court and therefore not allowing a Non Custodial Parent to see their children.

Right of Visitation 

The rights of Visitation to the Non Custodial Parent are offered in the provisions of Section 5 of the Family Courts Act 1964, and the same is reproduced here for the better understanding of the term Visitation Rights;

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

As Per Black’s Law Dictionary, 10^th Edition.” Visitation means ‘a non-custodial parent’s time of contact to a child’. Visitation right means a non-custodial Parent’s or grandparent’s Court structured opportunity 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 meeting time for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit. Hence the word “Parents” is categorically mentioned in Section 5 of the Schedule attached with the Family Courts Act 1964, allows grant of visitation rights to not only the father but also to the grandparents of the minor.

Our Guardian Courts have developed an inclination to mostly proceed under Section 12 (1) of the Guardian and Wards Act 1890 in the following words:

12. Power to make interlocutory order for production of minor and interim protection of person and property.

(1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

Under the mistaken concept that the requirements of Section 12(1) of the Guardian & Wards Act is a substitution and an alternative to Visitation Rights of Non Custodial Parents as are protected under the Provisions of Section 5 of the Schedule attached with the Family Courts Act, 1964. A key position here is the lack of proper training and learning of the civil Judges before their appointment as Guardian Judges. They simply do not appreciate the difference between exercising general jurisdiction and the quasi parental jurisdiction conferred upon them by virtue of their office.

No specific duration or frequency is provided or is defined in the Guardian & Wards Act 1890 for granting a visitation schedule. The basic and dominant consideration to decide a practical timetable is the “Welfare of the Minor”. However, for reasons beyond the understanding of the author, a routine visitation schedule allowed by our Guardian Courts comprises of a mere 2 hours once or in rare cases twice in a month access to a Non Custodial Parent and that too to be held within the Court premises, without conveying any logic or justification for such a restricted access that is allowed to a Non Custodial Parent, often in sheer disregard to the provisions of Section 24-A of General Clauses Act 1897.

Number of Guardian Courts at Lahore

At present at Lahore, there are seven Guardian Courts that are exercising quasi parental jurisdiction as being Locus Parentis. As a matter of general practice most of the educational institutions observe a weekly holiday on Saturdays, therefore it appears that our Judicial System has selected two hours, once or twice a month visitation/meeting as a template order with a purpose that schooling of the divorce affected minors should not be affected by visitation schedule for intermittent meetings for the Non Custodial Parents to meet their minor children in the Court premises. On each and every Saturday an average of 200-300 minor children are produced in the premises of Guardian Courts at Lahore for the purposes of their meetings with Non Custodial Parents.

Our Learned Guardian / Family courts are frequently found uncertain to apply a beneficial parental jurisdiction vested in them, despite the fact that they are provided with sufficient jurisdiction and prudence to allow an out of Court visitation right, they prefer to grant the same within the Court premises.

Though in guardianship cases, courts have to exercise quasi parental jurisdiction, as the supreme consideration. While acknowledging the fact that contesting parents have an inherent right to seek visitation to the minor, especially father, who is a natural guardian.  Father is not only required to participate in up-bringing of minors but should develop love, bondage and affinity with them.

Court of a Guardian Judge, for such purpose was neither conducive nor effective, it lacked proper facilities and arrangements and is not comparable to a homely environment. Meeting in court premises did not serve the purpose of meeting and was not in the welfare of minors to hold meetings there and meetings of minors with parents should preferably be held at the premises of contesting parents to familiarize minors with environment there, to strengthen a healthy relationship and dispel fears of future re-union.

Only in extreme and exceptional cases, Court of Guardian Judge could be chosen as a venue for which detailed reasons should be cited thus mechanical order in such context was not tenable.

The Laws

Presently, the custody of children in divorce cases are determined by two laws: the Guardians and Wards, Act, 1890 and the Family Courts Act 1964. Both the acts are silent on joint custody or shared parentage for children of divorcing parents. While the 1890 Law deals with the appointment of a person as a guardian of a minor both in respect of his/her person or property, it provides for any person to apply to be appointed as a guardian of a minor.

The Family Courts Act, 1964, was enacted with the object to create a special court for the decisions of matters relating to disputes relating to marriage and family affairs and other matters connected therewith.

The primary deliberation before guardian judges whilst granting interim/temporary or permanent custody of minors to either parent or sometimes to grandparents or other relatives is the welfare of the minor. These Laws are a mode of attaining custody of children.

The Quasi Parental Jurisdiction

In Guardianship & Custody matters, Courts are obliged to exercise quasi parental jurisdiction, the supreme consideration in such context would be the welfare of the minor, and to realize such task courts have unfettered powers. Application under Section 12 of the Guardian & Wards Act, 1890 was obligatory to be decided on such philosophy. Admittedly, contesting spouses have inbuilt civil rights to seek visitation with the minor, especially the non custodial parent who is by and large a father, who is by default a natural guardian of the minor as well. The father is not merely required to contribute in the rearing of minors but should develop love, bondage and empathy with the minors. The courtroom of a Guardian Judge or a separate room within the Court premises for visitation or meeting purposes is neither encouraging nor effective. It lacks basic and proper facilities and arrangements and is not akin to homely surroundings. Meeting for two hours once in a month cannot serve the purpose of meeting and is not in the best interest of the minor to hold meetings there with the non custodial parent i.e. a father

This Article recommends the introduction and Application of the Doctrine Shared Parenting to emphasize the “welfare of the child” as the paramount consideration in adjudicating custody and guardianship matters. The worst affected in proceedings of divorce and family breakdowns are the children. Maintaining the central importance of the welfare of the child in proceedings of custody will help ensure that the child’s future is safe and protected, regardless of changing familial circumstances. The courts in Pakistan have also arrived at similar conclusions. For instance, the Lahore High Court held that the Non Custodial Father can has frequent access to his children while upholding the generous visitation schedule allowed by a District Judge as the child’s welfare was the supreme consideration, irrespective of the rights and wrongs that the parents contend.

Shared Parenting

At present, in judicial practice, there is neither a supposition that father is not the natural guardian nor a presumption that mother is biologically better equipped to care for the minor. “The legal approach on child custody has evolved to such a level, that the perspective is constructive to take the discussion to the rational next step, which is the scheme of shared parenting. Though shared parenting or joint custody is not specifically spelled out in Pakistani law, it is reported that family court judges do use this conception at times to decide custody battles while allowing generous  at  home visitation rights / access to non custodial parents.  In a recent Judgment pronounced by The Lahore High Court, right of a Non Custodial Father for an at home Visitation with his minor children is acknowledged for overnights.

In US there are generally two forms of shared custody — joint legal custody and joint physical custody. Joint legal custody means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care etc. Joint physical custody means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.

In Canada under the Divorce Act, the court may grant an order of joint custody “in the best interests of the child”. Australia has a presumption of shared equal parental responsibility when devising parenting orders post-divorce. The UK has detailed requirements for awarding shared residence orders.

Recommendations

• Revision of Guardians & Wards Act: Guardian & Wards Act should be aligned with UNCRC, as Pakistan has signed and ratified the convention decades ago.

• Introduction of the Principles of Shared Parenting: Guardian Courts should  home visitation /access to the Non Custodial Parents starting from the first hearing of the Custody Petition.

• Dedicated Premises: Only in extreme cases, for reasons recorded, Visitation Areas within the Guardian Courts should be housed in separate buildings, away from family courts in as much as family cases should be withdrawn from Guardian Judges.

• Relevance of Evidence: The need and nature of required evidence in guardian matters should be reviewed and revisited.

• ‘Welfare’ Defined: Setting up guidelines to define and comprehend the doctrine of “Welfare of the Minor” to allow a better, reasonable and meaningful visitation schedule to Non Custodial Parent- Child Meeting in a month, on an annual basis.

• Annual Visitation Right: A detailed Annual Schedule of Visitation Rights containing frequent access to the minor for an adequate time including overnight stays with the Non Custodial Parents must be chalked out from the first date of hearing of the Custody Petition.

• Complaints Desk: An on-site complaints cell must be established.

• Psychological Evaluation: Courts must have affiliated psychologist who upon judicial direction should give evaluation if a child is suspected of Parental Alienation Syndrome, or a parent responsible for it.

• Surety Bonds: Surety bond must be required from both sides and once for all times to restrict parental abduction cases.

• Repercussions and Penalties: Implementation of the judicial orders must be taken seriously. Disobeying orders should result in gradual penalties, fines, punishments and reversal and shift of custody.

Recommendations for Procedural Changes

The following procedure, if adopted, will reduce the number of frivolous cases and applications in Guardian Courts, resulting in a marked reduction of workload on Guardian Judges and providing relief to affected Parents and Children:

• Each allegation specified in the Petition / Suit at the time of filing of the case should be accompanied by preliminary supporting evidence. Cases without relevant supporting evidence should not be entertained. Such a step will discourage filing of frivolous cases, thus reducing the burden on courts and judges, and ensure valuable court time is not wasted pursuing allegations that cannot be proved.

• A Joint Custody ‘Parenting Plan’ should be chalked out right from the start of the proceedings with balanced access to the child for both Parents. Such a ‘Parenting Plan’ would detail an elaborate visitation and interim custody schedule covering all holidays and regular monthly meetings for one whole year and revised on yearly basis. This will ensure that no parent is at a disadvantage right from the start of the proceedings. Having both parents equally will also minimize any additional trauma on the Child who is already going through the consequences of separation of his/her parents. Enjoying an equal access to the child will also eliminate any reason for one parent to snatch or abduct the child. A detailed meeting schedule will also eliminate any need for alternative visitation applications which, numbering in thousands, cost the court more time and resources (Bailiffs etc) than the actual case itself.
  
  (An example ‘Parenting Plan’ drafted for Pakistan’s requirements and holidays etc, is available on request)

• Both parents should be required to provide Surety Bond of equal value as well as one Personal Guarantee for the entirety of the proceedings at the time of issuance of ‘Parental Plan’. This will ensure neither party abuses the privilege of visitation by abducting the minor.

• During proceeding of the case, the ‘Reply opportunities’ to either parties should not exceed more than 2 hearings with orders on the merit of the case on the 3^rd All Judges should be strictly required to adhere to this rule

• Cases should be resolved within the allocated 6 months time save in accordance with the Provisions of Section 12- A of the Family Courts Act, 1964, after which the case should be dismissed or ordered on merit for lack of proceedings.

• Elaborate monetary fine and jail term, regardless of gender should be imposed for deceiving court where an allegation is made and submitted evidence is proven false without any reasonable doubt. This will discourage frivolous cases, further reducing the burden on courts.

Conclusion

It is seen as a trend in the courts that due to a restricted interim visitation schedule of meeting allowed to a Non Custodial Parent for two hours once in month or in rare cases twice in a month and that too within the Court premises results in filing of multiple Applications from the Non Custodial Parent’s side to avoid the fall outs of alienation and brainwashing of the minor from the Custodial Parent side, ordinarily a Non Custodial Parent is constrained to file more or less 12 applications in an year especially when the minor child is a school going child. Especially on religious occasions, birthdays of the Non Custodial Parent and the minor and on Summer, Winter and Spring School holidays of minors in order to ensure more of access to the minor child, which is the real reason behind the piling up of cases and delay of conclusion of litigation pending adjudication before the Guardian / Family Judges.

It is therefore need of the time that the Guardian Judges must be trained to understand that children need both their mother and father, they seek advice from each parent in different situations. In addition to the fact that Children need adequate opportunities to bond with each parent.

Shared custody can reduce acrimony between the parents. Shared physical custody without shared legal custody will lead a child to believe that the parents do not have equal moral authority. Shared legal custody without shared physical custody will prevent a child from bonding with both parents. Hence they must chalk out a detailed annual visitation schedule of meeting comprising of a reasonable time allowed to Non Custodial Parents to make the meeting between minor & Non Custodial Parent a meaningful one. Further, Judicial orders must be written in greater detail and clarity. They must give a meaningful and reasonable well structured year long visitation schedule that leaves no need for repeated applications. Court orders should also say where visitation rights are open ended or restricted.

An Appropriate and reasonable interim visitation schedule in common terms means where children are brought up with the love and guidance of both parents. It is basically an acknowledgment of nature’s principle of providing for two parents of each child in order to ensure their healthy development and upbringing.

It is pertinent to be noted here that although different countries use different definitions of reasonable and appropriate interim visitation schedule, the most commonly accepted definition is, “A collaborative arrangement in child custody or divorce determinations in which both parents have the right and responsibility of being actively involved in the raising of the child (ren)”. It is also referred as “Joint Custody”, or “Co-Parenting” or “Equally Shared Parenting”.

A Reasonable and appropriate interim visitation schedule or application of the principles of shared parenting would be an extension of the UN Convention on the Rights of Child, 1989 (UNCRC) to which Pakistan is a signatory.  Article 5 of the UNCRC states, “state parties shall respect the responsibilities, rights and duties of parents” acknowledging the primacy of both parents in the life of the children.

Keeping in view  the therapeutic nature of parental jurisprudence of the child custody litigation, it is peculiar to define the very term welfare of the minor in terms of the following objectives:

1. That the children feel that they have two properly involved parents who have broadly equal ‘moral authority’ in their eyes.
2. That the children imbibe values and traditions from both families in substantial measures in order to carve their own sense of belonging and identity.
3. That time is allocated between both parents such that no one parent is excluded from any aspect of child’s life e.g. sleeping, & waking rituals , school, homework, friends, leisure time , vacations, important religious & national festivals , important dates like birthdays etc.
4. That the children do not develop stereotyped ideas from their parents about the roles of the sexes, for example a father’s role is chiefly financial and a ‘giver of treats’ and mothers have responsibilities for everything else.

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References:

• Practicing Therapeutic Jurisprudence, Law as a Helping Profession by Dennis P. Stolle, David B. Wexler, Bruce J. Winick
• http://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/dr-rd/index.html
• Psychological and Emotional Aspects of Child Custody Battles and Divorce by Kathie Mathis, Psy.D,  (https://theccbi.com/psychological-and-emotional-aspects-of-child-custody-battles-and-divorce-by-kathie-mathis-psy-d/)
• 2009 CLC 1443
• Section 5 of Family Courts Act 1964
• Blacks Law Dictionary, 10^thEdition
• 2013 MLD 1631 Lahore
• 2005 PLD 97 Lahore
• 1995 PLD 151 LHR
• 2008 PLD 527 Lahore
• Ayat No. 233 of Sura Al Baqra
• Direction Passed by Honourable Division Bench of LHC in Writ Petition 28566/11
• 2017 CLC 1747
• Recommendations of Chairperson of Department of Applied Psychology, University of the Punjab in Writ Petition No. 28566/11

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