Challanges Faced By Family Courts In Pakistan: An Examination Of The Legal And Social Landscape

305 CHALLANGES FACED BY FAMILY COURTS IN PAKISTAN: AN EXAMINATION OF THE LEGAL AND SOCIAL LANDSCAPE By Fahad Ahmad Siddiqi1 Abstract Pakistan's family courts face significant challenges in resolving child custody disputes due to out-of-date laws2 and social attitudes. The current legal framework arranges for sole custody, leading to acrimonious disputes and marginalization of non-custodial parents. With 40,000 annual divorces, children's lives are affected, and post-separation parenting becomes common. However, the existing system often highlights custodial parents' rights, restricting non-custodial parents' access to their children. The concept of human dignity, protected by the Constitution3, is overlooked in child custody cases. To transform the justice system, need to recognize human dignity in family justice, valuing non-custodial parents' worth and respect. We need to address challenges like adversarial trials, gender bias, and stereotypes, which perpetuate a winner-takes-all mentality, causing long-term harm to children. This research advocates for reforms in family laws, court procedures, and societal attitudes to prioritize children's welfare and preserve relationships with both parents. By adopting collaborative, child-centered approaches, we can ensure the welfare of the minor is ensured and create a more just and equitable family law system. Introduction Pakistan's rapid modernization is redefining the landscape of conjugal and familial ties, leading to increased complexity in relationships and, subsequently, new factors contributing to their dissolution. Our legal framework for child custody, however, remains outdated, relying on the assumption that custody can only be vested with one party. This approach needs revision, just as our understanding of marriage dissolution has shifted from fault-based to mutual consent divorce. In the midst of a bitter divorce, the most vulnerable party is often the child. In Pakistan, where family dynamics are deeply rooted in tradition and societal expectations, child custody battles can be particularly challenging. As a result, children are frequently treated as trophies to be won, rather than vulnerable individuals who need protection and love. In Pakistan, approximately 40,000 couples dissolve their marriages annually, with more than half having dependent minor children, while numerous others separate impacting children's lives. Post-separation or post-divorce parenting is a common reality, with 90% of children living with mothers and only 2% with fathers, despite rare shared custody orders. This leaves a significant number of fathers as non-custodial parents, facing restricted access, typically limited to two hours of supervised contact per month within court premises4, contradicting the principle of maximizing children's contact with both parents in their best interests. Overview of child custody disputes Pakistan's child custody litigation is governed by two old-fashioned laws: The Guardians and Wards Act (1890) and the Family Courts Act (1964). Notably, neither law provides for joint custody or shared parenting arrangements. Instead, sole custody is typically awarded to one parent. frequently resulting in acrimonious family disputes. The existing laws, court procedures, and societal attitudes as a result, the legal framework, court procedures. and societal attitudes often prioritize the custodial parent's rights, leaving the non-custodial parent with limited access to their children that too to be held within court premises once or twice in a month. The concept of human dignity remains largely unexplored in prevailing child custody jurisprudence; despite being protected in the Constitution. While Article 14 has been invoked in cases involving torture, privacy, and right to life, its application is scarce in other critical areas that impact human dignity. These include grant of appropriate at home visitation rights, shared parenting, appropriate contact denial, parental alienation and inordinate delays in conclusion of family trials etc. It's crucial to recognize the significance of human dignity in our legal dialogue, ensuring that every individual's worth and respect are prioritized. We need to introduce the concept of human dignity in our family justice system as well, valuing non-custodial parent's worth and respect. This will help us address social and legal issues. Our courts need to interpret Article 14 more generously, putting, human dignity at the heart of fundamental rights. Jurisdiction of Family/Guardian Courts in child custody cases The Family/Guardian Court possesses quasi parental jurisdiction, and in exercising this jurisdiction, it is not bound by undue technicalities. As a quasi-judicial forum, the Family Court has the flexibility to adopt its own procedures, provided they align with the principles of a fair trial5. The court's paramount concern in family6 and guardianship cases is the minor's welfare, acting in a parental capacity to consider all relevant factors. In guardianship matters, the court exercises quasi-parental jurisdiction, prioritizing the minor's well-being and having unfettered powers to ensure their best interests are met7. Challenges in Child Custody Litigation In accordance with the principles of parens patriae and Pakistan's international commitments, especially under United Nations Convention on Child Rights, Family and Guardian Courts are tasked with determining the welfare of the minor in contested family law proceedings. The scientific community has identified a critical "window period" of 12 months following parental separation, during which maintaining meaningful relationships with both parents is crucial to mitigating the risk of long-term psychological harm to the child. In recognition of these complexities, Pakistan enacted the Family Court Act in 1964, establishing specialized courts to prioritize family disputes and depart from conventional civil litigation procedures. While this legislation represented a significant milestone in addressing the unique needs of families and children, its implementation has been plagued by challenges and shortcomings, prompting stakeholders to voice concerns regarding An adversarial nature of trial wherein one party takes all In custody proceedings, the prevailing adversarial paradigm in Pakistani family courts, wherein one party seeks to gain custody at the expense of the other, is contrary to the principles of justice and the welfare of the child. This approach, which perpetuates a winner-takes-all mentality, frequently results in the marginalization or severance of the child's relationship with the non-custodial parent, and diverts the focus from the child's welfare to the parents' conflict, leading to prolonged litigation and acrimony. Moreover, the adversarial process exacerbates parental conflict, causing long-term psychological distress for the child. It is therefore imperative that the courts adopt a more collaborative, child-centered approach, prioritizing the best interests of the child and ensuring that the child's relationship with both parents is preserved and protected. Gender bias and stereotypes: In Pakistan, a patriarchal society prevails, where traditional gender roles and societal expectations often shape family dynamics and legal decisions. In child custody cases, these patriarchal norms can skew the balance in favor of mothers, perpetuating a bias that assumes mothers are inherently more nurturing and capable caregivers. The family court system often inadvertently propagates a power imbalance, severely restricting non-custodial parents' involvement in their children's lives. During legal proceedings, non-custodial parents are frequently granted extremely limited access to their children, leaving them feeling alienated. They are denied access to their children's essential records, have no meaningful input in their upbringing, and are allocated a disproportionately small amount of visitation time, normally less than 1%, compared to the custodial parent's majority share. This stark disparity contravenes fundamental principles of fairness and the teachings of the Holy Quran, which warns against causing harm to parents through their children. Furthermore, repeated disregard for court orders regarding child access often goes unchecked, allowing custodial parents to disregard non-custodial parents' rights without consequence, resulting in severe repercussions for the child's well-being and the integrity of the legal process. Absence of Codified Guidelines by Superior Courts The lack of codified guidelines in family law has created a vacuum of uncertainty, allowing unbridled judicial discretion to prevail. This subjectivity breeds inconsistency, resulting in a wide spectrum of variable orders that often confound and frustrate litigants. The ensuing uncertainty and unpredictability undermine trust in the judicial system, leaving parties to navigate a complex and opaque process without clear direction or foresight. To restore confidence and ensure fairness, it is crucial that the Superior Courts develop and implement clear, codified guidelines for family law cases, providing a framework for consistent, principled and transparent decision-making that respects the rights and interests of all parties. A very high degree of subjectivity with lack of codified guidelines resulting in highly variable orders increasing litigant frustration with the system. Lack of Judicial Interest: In child custody cases, courts often fail to concentrate on children's welfare, and without affording any reason or justification as required under the provisions of Act of 1897, often chalk out a visitation schedule comprising of an extremely inflexible access of merely 2 hours, once or twice a month, and that too to be held within the court premises, that too under the supervision of the court's bailiff. Strangely, the friends and family members of the custodial parent are also allowed to remain present within the visitation area during the visitation between the non-custodial parent and the child where they potentially affect with the already limited time, thereby not allowing free interaction between the child and the non-custodial parent. This approach focuses on declaring a single "winner" rather than finding a solution that serves the child's best interests, neglecting their need for both parents' involvement. In respect of custody cases, this means that the focus is on one parent "winning" sole custody or control, rather than introducing an arrangement whereby best interest of the minor is procured and both parents remain actively involved in the lives of separation affected minor children. It is alarming that family courts are making decisions on temporary visitation rights for non-custodial fathers without adhering to the law. Instead of following the Family Courts Act, 1964, they often rely on an outdated approach outlined in D.F. Mulla's Mohammaden Law, which is not even a statutory law. This widespread misapplication of therapeutic laws contained in the Family Courts Act, 1964 often results in unwarranted benefits for some, while denying rightful protection to others. Limited understanding of child development and family dynamics can lead to inappropriate custody decisions The evolving structure and function of Pakistani families, coupled with the increasing complexity of family legal issues, demand a new approach from judges. As family courts navigate a growing volume and diversity of cases, it is vital for judges to integrate social science research on child development and family dynamics into their decision-making. This informed approach enables judges to deliver justice that fortifies and supports families, recognizing their essential role in fostering stable and nurturing environments. Arbitration and Counselling: In Pakistan provisions related to Arbitration are incorporated in Muslim Family Laws Ordinance, 1961 to settle down various family disputes like in section 7(4) but they are subjected to numerous shortcomings. Union council act as a mediator to resolve various family disputes. But the functioning of arbitration council is exposed to numerous challenges and flaws. As the most sensitive matters like divorce are being arbitrate in an unprofessional manner. The reason is "lack of any specific criteria for representatives in Arbitration". There is no single provision that illustrates the criteria of arbitrator and this gap creates room for ambiguity. Arbitration aims to protect the dignity of spouses and provide a reasonable approach to settle their disputes but unfortunately in Pakistan, especially in family disputes the arbitration council looks least interested in doing efforts of reconciliation. As the idea of resolving family disputes through arbitration is never taken seriously nor it is implemented. Arbitration and Counselling in Child Custody disputes Child custody matters are of great importance as it is the most emotionally charged matter among other family disputes. Unfortunately, in most of the cases children get targeted and used as a weapon by ex-spouses. And the concept of "best interest of child" gets overshadowed by personal interest of parties. In Pakistan the common way to get child's custody is to engage for years in litigation but on the other hand Arbitration can provide a way out to resolve custody matters that uphold the child- centric approach and decide such matters effectively. Beneficial for Child's best interest Traditionally when a person considers court for deciding the custody of child it is a traumatic experience for child indeed. Prolonged court proceedings adversely impact the child and they get exposed to parental conflicts. Moreover, the court proceedings are subjected to public scrutiny, there is no privacy while meeting. This all-factors damage self-esteem of child and consequently child's best interest gets compromised. On the other-hand Arbitration is the only way out to mitigate these harmful impacts. As it provides a child centric approach and eliminate the potential space of blame games from both contesting parties. Because the entire focus will be on providing solutions that favor child's best interest and it eradicates the emotional distress to child as well as parents. It boosts the collaborative spirit among parents to prioritize child's well-being. The Arbitrator can solely focus on child's wellbeing and make decisions accordingly. False Allegations: The prevalence of false allegations8 in family law cases has become a significant obstacle to justice, as both parties frequently resort to making unfounded and malicious accusations against each other. This proliferation of false allegations has the effect of poisoning the well of information, leaving the presiding judicial officer without a reliable basis for making informed decisions. The resulting uncertainty and lack of trust in the parties' representations necessitates a more rigorous approach to evidence evaluation and fact-finding. Moreover, the perpetuation of false allegations exacerbates the already fraught dynamic between the 'warring' parents, further entrenching their adversarial positions and making a negotiated resolution increasingly unlikely. It is essential that the courts take a more proactive role in identifying and addressing false allegations, and that parties be held accountable for making misleading or false statements. Evidence: The significance of evidence in custody cases is often overlooked, leading to a lack of clarity regarding its role, necessity and usefulness. Recording of evidence is not a straight-forward process, and its utility is frequently underestimated. Firstly, the role of evidence in custody cases is crucial in establishing the facts of the case and determining the welfare of the minor. However, the current approach often relies on oral testimonies, which can be subjective and unreliable. Secondly, the need for evidence is accentuated by the fact that custody disputes often involve complex issues, such as allegations of abuse, neglect, or parental alienation. In such cases, robust evidence is essential to substantiate claims and ensure that the court makes an informed decision. Lastly, the utility of evidence lies in its ability to provide a comprehensive understanding of the family dynamics, the child's needs and the capabilities of each parent. This can include witness statements, psychological evaluations, and documentation of incidents, among other forms of evidence. Whereas, the current approach to recording evidence in our family justice system often falls short, leading to a reliance on hearsay and uncorroborated claims. This usually results in unjust outcomes, where the child's best interests are not adequately protected or discussed. Visitation Right: As per the Black's Law Dictionary, the term visitation rights denote a non-custodial parents or grandparent's court-ordered privilege of spending time with the child or grandchild who is living with another person, i.e. a custodial parent and restricted and supervised visitation is defined as visitation under the orders of a court in which a non-custodial parent may visit his child or children only in the presence of custodial parent or Bailiff of the Court to supervise the meeting within a court supervised area, and a court may order supervised visitation when the visiting parent is known or believed to be prone to physical abuse, sexual abuse, or violence. Guardian and Family Courts across Pakistan generally grants extremely limited and restricted visitation rights to the non-custodial parents while exercising jurisdiction under Section 12 of the Act of 1890 or Item No. 5 of the Family Courts Act 1964's schedule, without considering the qualifications or disqualifications outlined in Section 17 of the Act ibid in a mechanical manner even without assessing a father's qualifications or disqualifications, as required by law. To address this lacuna, it is essential that the legislature undertakes a comprehensive review and revision of the Acts, while incorporating explicit provisions that elucidate the principles and parameters governing visitation rights, and ensuring that the best interests of the child remain the paramount consideration. Denial of Appropriate Contact "The Guardians and Wards Act of 1890 emphasizes the welfare of minors, requiring courts to act in a parental capacity. However, restrictive visitation schedules, often adopted for convenience, undermine this principle. Restricting parent-child contact to brief, supervised meetings can harm the child's well-being. This approach can fuel ongoing conflict between parents, distracting from the child's needs. Courts should prioritize the child's right to a loving relationship with both parents, rather than perpetuating parental conflict. Guardian Courts must safeguard children's rights to meaningful access and visitation with their non-custodial parent, as denial can lead to lasting emotional, psychological, and social difficulties including but not limited to: * Profound feelings of rejection, abandonment and low self-esteem * Anxiety, depression, and post-traumatic stress disorder (PTSD)9 * Academic underachievement, social isolation and difficulty forming healthy relationships * Emotional and psychological distress, including attachment disorders and personality disorders * Feelings of anger, resentment and bitterness, leading to alignment with one parent against the other * Increased risk of mental health problems, substance abuse and suicidal ideation * Difficulty with emotional regulation, impulse control and conflict resolution * Social and emotional difficulties, including difficulties with intimacy and trust * Increased risk of long-term psychological distress and complex trauma Moreover, research has consistently shown that children who have healthy relationships with both parents, despite parental separation or divorce, fare significantly better emotionally, academically and socially and are less likely to experience long-term psychological distress. This underscores the critical need for parents and the legal system to prioritize children's needs and well-being, ensuring that their right to a loving and meaningful relationship with both parents is protected and respected." Surety Bonds: The existing framework governing surety bonds in family law cases is inherently imbalanced, placing an undue burden on parents. While the non-custodial parent is required to furnish surety bonds and other securities to avail an out of court and an at home visitation/access towards his child, the custodial parent is not subject to similar requirements. This asymmetry creates an environment of vulnerability, where the custodial parent may feel emboldened to snatch the child from the non-custodial parent, particularly in the period leading up to the final decision of the case. This not only undermines the rule of law but also aggravates the risk of parental child abduction, causing emotional distress and trauma to the child and the non-custodial parent alike. To address this concern, it is essential that the judiciary revisit the requirements of surety bond, ensuring that they are fair, equitable and designed to protect the rights and interests of all parties, including the child. Unrealistic Precedence: In our family justice system, there exists significant gap in its oversight mechanisms, failing to ensure the ongoing monitoring and evaluation of custodial arrangements during the interim period. This omission leaves a critical vacuum in accountability, allowing potentially harmful or neglectful situations to persist without judicial scrutiny. The absence of mandatory periodic reviews or assessments of the custodial arrangement's impact on the child's well-being is a stark omission, jeopardizing the very interests the court seeks to safeguard. Formatted judicial orders are passed as a matter of routine, 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 Act of 189710. To rectify this, the courts must establish a rigorous monitoring framework, regularly assessing the child's welfare and facilitating prompt intervention to address any harm or neglect. "Child Interviews" being conducted in hostile court environments which are traumatic for the child. They are conducted by Courts who don't have the time and infrastructure to gently observe and build bonds with the child before eliciting credible information or allowing reasonable access inter-se. Further, this encourages tutoring and brainwashing and sometimes children as young as 5-6 years are asked their opinion about something of which they have no clue. Though Judicial Reforms11 in terms of simplifying and expediting the process, increasing infrastructure (courts and Courts) etc. are urgently needed and would help alleviate some of the concerns, research and experience from all over the world points towards making, a rebuttable presumption of Shared Parenting as the best practice in order to safeguard best interests of children, decrease adversarial nature of litigation, decrease litigation time and expense and also ensuring greater litigant satisfaction. Putting Children First: Policy Recommendations for Family Law Reform 1. Introduction of a new entry in the Schedule attached with the Family Courts Act, 1964 for the adoption or application of Shared Parenting Arrangement at the stage of preliminary reconciliation proceedings where under custody be given to one of parents and equally balanced at home visitation rights comprising of frequent overnight stays of the minor be allowed to the other parent. 2. Introduction of the concept of Joint Guardianship whereby equal opportunities be allowed to both parents to remain actively involved in the life of their child irrespective of their marital status, it will help non-custodial parent to bear reasonable maintenance of the minor child amicably and without further litigation. 3. The term 'Welfare' needs to be defined: Setting up guidelines to define and comprehend the doctrine of "Welfare of the Minor" on the touchstone that the separation is occurred between spouses and never between parents therefore allowing a better, reasonable and meaningful involvement of the Non-Custodial Parent in the life of his child, on an annual basis. 4. Psychological Evaluation: Family and Guardian Courts should have affiliated psychologist who upon judicial direction may give evaluation if a child is suspected to be subjected to brainwashing, estrangement and of Parental Alienation, or a parent responsible for it. 5. Penal Clause: A penal clause needs to be introduced for the smooth going of visitation rights allowed to a Non-Custodial Parent and a fine of a certain amount may very kindly be fixed for any breach thereof committed by either of the parties to litigation. 6. To ensure a smooth and efficient legal process, preliminary criteria should be established for accepting a plaint and issuing notices. This includes fulfilling specific requirements under the relevant law governing the subject matter, verifying the completeness and accuracy of the information provided, confirming that the plaint is filed in good faith, determining that the court has jurisdiction and satisfying any other conditions specified by law or court rules. By setting these prerequisites, the court can streamline the process, reduce frivolous claims, and focus on substantive issues, ultimately leading to more effective and efficient dispute resolution. 7. Special subject oriented syllabus and training sessions are developed that are essential for sensitizing presiding officers of the Family and Guardian Courts, enhancing their understanding about the therapeutic nature of the jurisdiction and expertise in handling sensitive child custody cases. Conclusion Our Family Justice System is grappling with a multitude of challenges in child custody litigation, including false allegations, ineffective monitoring mechanisms, ambiguous visitation rights, and discriminatory surety bond requirements. These challenges not only impede just decision-making but also prolong litigation, exacerbate conflicts, and most egregiously, compromise the child's best interests. To address these challenges, a concerted effort is necessary among the legislature. Judiciary, and relevant stakeholders to introduce sweeping reforms and guidelines that prioritize the child's welfare, ensure equity and justice for all parties, and facilitate a more informed, child-focused approach to child custody litigation, ultimately safeguarding the child's well-being and future. Bibliography: 1. (C) 2023 Fahad Ahmad Siddiqi. He is a leading family law expert with 20+ years of experience in the Lahore High Court. As a distinguished Advocate, his practice is centered around child custody and shared parenting, where he has earned a reputation as a foremost expert and passionate advocate. He is a prolific author and researcher, publishing numerous articles and books, including "Shared Parenting and Pleadings" and "Shared Parenting: The Pakistani Perspective". His work has gained international recognition. featured in the prestigious Routledge International Handbook of Shared Parenting (2021 edition). You can access It is papers online at https://courtingthelaw.com/ author/fahad-ahmad-siddiqi/. Contact him through his website https://cclsip.com/or at qaslaw@ gmail.com. 2. Guardians and Wards Act, 1890 and Family Courts Act, 1964. 3. Constitution of Islamic Republic of Pakistan, 1973. 4. Fahad Siddiqi. "Backlog of Child Custody Cases in Pakistan: Decreasing Delays." Courting the Law, August 9, 2018. 5. 2017 CLC 1747 Lahore. 6. Fahad Siddiqi. "Law of Interim Injunction in Family Custody Cases," Lawyers Club India, published October 15th, 2019. 7. PLD 2018 Quetta 44. 8. Fahad Siddiqi. "Backlog of Child Custody Cases in Pakistan: Decreasing Delays," Courting the Law, August 9, 2018. 9. National Helpline, Substance Abuse and Mental Health Services Administration, accessed August 11, 2024. 10. General Clauses Act of 1897. 11. Fahad Siddiqi, "Introduction: Need for Reform in Child Custody Law and Services in Pakistan," Linked In Pulse, published March 21st, 2023. 1 (C) 2023 Fahad Ahmad Siddiqi. He is a leading family law expert with 20 years of experience in the Lahore High Court. As a distinguished Advocate, his practice is centered around child custody and shared parenting, where he has earned a reputation as a foremost expert and passionate advocate. He's a prolific author and researcher, publishing numerous articles and books, including "Shared Parenting and Pleadings" and "Shared Parenting: The Pakistani Perspective". His work has gained international recognition, featured in the prestigious Rout ledge International Handbook of Shared Parenting (2021 edition). Access his papers online at https://courtingthelaw.com/author/fahad-ahmad-siddiqi/.Contract him through his website https://cclsip.com/or at qaslaws@mail.com. 2 Guardians and Wards Act, 1890 and Family Courts Act, 1964 3 Constitution of Islamic Republic of Pakistan , 1973 4 "Fahad Siddiqi, "Backlog of Child Custody Cases in Pakistan: Decreasing Delays." Courting the Law. August 9, 2018. 5 2017 CLC 1747 Lahore 6 "Fahad Siddiqi, "Law of Interim Injunction in Family Custody Cases". Lawyers Club India, published October 15th, 2019. 7 PLD 2018 Quetta 44 8 Fahad Siddiqi, "Backlog of Child Custody Cases in Pakistan: Decreasing Delays," Courting the Law, August 9, 2018 9 National Helpline, Substance Abuse and Mental Health Services Administration, accessed August 11, 2024. 10 General Clauses Act of 1897. 11 Fahad Siddiqi, "Introduction: Need for Reform in Child Custody Law and Services in Pakistan," Linked in Pulse, published March 21st, 2023.