A Rights Centered Reset: Reframing Guardianship and Child Custody in Pakistan Through Canadlan and Australian Guidance

A RIGHTS-CENTERED RESET: REFRAMING GUARDIANSHIP AND CHILD CUSTODY IN PAKISTAN THROUGH A RIGHTS-CENTERED RESET: REFRAMING GUARDIANSHIP AND CHILD CUSTODY IN PAKISTAN THROUGH CANADIAN AND AUSTRALIAN GUIDANCE By Naeem Akhtar1 Abstract Pakistan's current guardianship and custody practices still rely on adversarial language that positions parents as opponents rather than partners in nurturing a child's wellbeing. A modern, rights-based lens treats the child as the rights holder and the parent as the duty bearer. This article explores how Pakistan can evolve toward a child-centered model without waiting for legislative reform, simply by adopting refined judicial methods already used in Canada and Australia. It highlights the value of updated terminology, structured best-interests assessments, child-inclusive hearings and clear parenting orders. A comparative analysis shows how both jurisdictions operationalize the welfare principle in transparent, practical ways that Pakistan can adopt today. The article concludes that aligning our language and reasoning with child-rights norms will lead to decisions that better protect and promote children's welfare. Keywords Child rights, parenting time, decision-making responsibility, best interests, Pakistan, Canada, Australia, guardianship, custody reform, family courts Introduction Pakistan's guardianship and custody jurisprudence is rooted in the Guardians and Wards Act of 1890, a law drafted long before the development of modern child-rights frameworks. While our courts consistently affirm that the child's welfare is paramount, the vocabulary and processes used in practice still reflect an adversarial structure. Parents are often portrayed as competing claimants, and outcomes can unintentionally revolve around their grievances rather than the child's independent rights. Across the world, however, family law has shifted. Canada and Australia have fully embraced the idea that a child is a rights holder whose best interests sit at the center of every decision. These countries have updated their legal terminology, adopted structured best-interests matrices, established clear child-participation models and prioritized safety without relying on presumptions like equal time. Their experiences demonstrate that language shapes outcomes. When courts reason in child-rights terms, they decide in child-rights terms. This article explains how Pakistan can incorporate these modern practices without waiting for amendments to domestic statutes. The welfare principle already allows for a rights-focused approach. What is needed now is refinement in how courts speak, assess and issue orders. Moving from Custody Language to Child-Rights Vocabulary One of the clearest lessons from Canada's 2021 family law reforms is the power of vocabulary. Canadian legislation replaced words like "custody" and "access" with "parenting time" and "decision-making responsibility." This change shifted the focus from ownership to responsibility. Parents no longer appear as adversaries fighting for control, but as duty-bearers accountable for meeting the child's needs. Australia reached the same destination through its Family Law Act 1975, which uses the term "parenting orders" instead of custody. These orders allocate responsibilities and outline how the child's time will be structured. Pakistan's courts can adopt the same approach judicially. Even without statutory reform, judges can frame their orders in terms of parenting time and parental responsibilities. Doing this helps reshape how parents understand their roles and reduces the emotional temperature of disputes. Publishing a Structured Best-Interests Matrix Canada and Australia require judges to demonstrate how they evaluated each factor relevant to the child's best interests. This includes safety, stability, caregiving history, the parents' capacity to cooperate, cultural identity, the child's views and logistics. Such transparency makes judgments clearer, fairer and more predictable. Pakistani courts already rely on the welfare principle, which aligns with these elements, but the analysis is often scattered or implied. Introducing a structured matrix into every judgment would make the reasoning transparent and help parents understand how decisions were reached. It also promotes consistency across cases, reducing the perception of unpredictability that often fuels further litigation. Listening to the Child in an Appropriate Way The right of a child to express their views is central to modern family law. Canada uses Voice of the Child Reports, judicial interviews and child-impact assessments. Australia employs child-inclusive practices supported by family consultants who prepare detailed reports. Pakistan's courts do hear children in some cases, but the process varies widely. The experience can be intimidating, and reasons showing how the court considered the child's views are often brief. A more consistent approach would involve welfare notes or child-impact memos prepared in a sensitive manner, followed by clear judicial reasoning that explains how the child's opinions were weighed. This respects the child's dignity while ensuring their perspective informs the outcome. Issuing Clear and Enforceable Parenting Orders A persistent challenge in Pakistan is the enforcement of custody and visitation orders. Many orders use broad language like "reasonable visitation," which leaves room for conflict. By contrast, Canadian and Australian courts issue highly specific orders that include calendars, handover protocols, communication rules and even tie-breaker provisions for urgent decisions. These details reduce misunderstandings and limit opportunities for non-compliance. Pakistani courts can adopt similar clarity. Plain-language orders that set out exact timings and responsibilities help both parents stay accountable and make enforcement simpler if disputes arise. Prioritizing Safety Without Presumptions Australia once relied on a presumption of equal shared parental responsibility, but reforms in 2023 significantly limited this approach. Today, both Australian and Canadian courts start with safety. They assess risks related to family violence, neglect, instability and emotional harm before considering time-sharing. Pakistan also places a premium on safety, but this principle does not always appear at the beginning of the judgment. A structured approach that starts with risk and need ensures that vulnerable children receive the protection they deserve. It also avoids assumptions that equal time or shared decision-making is always appropriate. Encouraging Parenting Plans Early Parenting plans are widely used in Canada and Australia as a tool for reducing conflict. They allow parents to jointly outline roles, communication expectations and schedules. When both sides commit to a plan early, hearings become smoother and more focused on the child's needs rather than parental disputes. Pakistani courts can encourage this practice by requiring parenting plans before final hearings. This helps parents understand their responsibilities, clarifies expectations and provides a roadmap that supports cooperation rather than confrontation. Comparative Reflections: Lessons for Pakistan Canada and Australia provide practical examples of how a rights-centred approach can be implemented: Language evolves the courtroom mindset. Shifting terms from custody to parenting responsibilities promotes healthier parental behaviour. Structure ensures fairness. Best-interests matrices make judgments transparent and consistent. Child participation strengthens legitimacy. When children are heard responsibly, outcomes feel grounded in their lived reality. Clarity reduces conflict. Detailed parenting orders and early parenting plans minimize confusion and improve compliance. Safety-first reasoning protects the vulnerable. Prioritizing risks safeguards children from harm. These lessons align naturally with Pakistan's welfare standard. They simply give it a modern shape rooted in child rights. Conclusion Pakistan stands at an important moment in the evolution of its family law jurisprudence. The welfare principle in the Guardians and Wards Act already gives courts wide discretion to protect children's best interests. What is needed now is a shift in mindset. By adopting contemporary child-rights vocabulary, publishing structured best-interests matrices, ensuring child-inclusive hearings, issuing clear and enforceable parenting orders and prioritizing safety, courts can reshape outcomes long before legislation is updated. This approach reflects the ratio decidendi of emerging global family law norms: that children are rights holders and parents are duty bearers. The discussion about long-term legislative reform remains helpful as obiter, but immediate judicial action can bring lasting positive change. When we write and reason in child-rights terms, we inevitably decide in child-rights terms. References 1. Guardians and Wards Act, 1890 (Pakistan) https://www.fia.gov.pk/wp-content/uploads/2024/01/Guardians-and-Wards-Act-1890.pdf 2. United Nations Convention on the Rights of the Child, Articles 3 and 12 https://www.ohchr.org/en/instruments-mechanisms / instruments / convention-rights-child 3. Divorce Act, RSC 1985, c. 3 (Canada), 2021 Parenting Reforms https://laws-lois.justice.gc.ca/eng/acts/d-3.4/ 4. Department of Justice Canada - Guide to 2021 Family Law Changes https://www.justice.gc.ca/eng/fl-df/fact.html 5. Family Law Act 1975 (Australia) https://www.legislation.gov.au/Series/C2004A00292 6. Australian Attorney-General's Department-2023 Family Law Amendment Overview https://www.ag.gov.au/families-and-marriage/family-law-reform 7. Bala, N.Canadian Family Law Reform and Child-Centred Decision Making (Queen's University) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3621277 8. Parkinson, Patrick (Sydney Law Review) - Best Interests Principle in Australia https://www8.austlii.edu.au/cgi-bin / viewdoc / au / journals / SydLawRw/2019/7.html 9. Cashmore, J. & Parkinson, P. - Children's Participation in Family Law (Child Abuse and Neglect Journal) https://www.sciencedirect.com/science/article/abs/pii/S0145213414000694 10. Birnbaum, R. & Saini, M. - Voice of the Child Reports in Canada (University of Toronto Press) https://utorontopress.com/9781442615434/ 11. Howe, D. and Gumbleton, J.- Evaluating Child-Inclusive Mediation (Family Law Council Australia) https://www.ag.gov.au/families-and-marriage / publications / family-law-council-reports 12. Canadian Judicial Council - Parenting Orders and Best Practices https://cjc-ccm.ca/en/resources/family-law 13. Australian Family Court - Parenting Orders Handbook http://www.familycourt.gov.au / wps / wcm / connect / fcoaweb / family-law-matters/parenting/parenting+orders 14. UNICEF Pakistan - Child Rights and Access to Justice Guidance https://www.unicef.org/pakistan/reports 15. Zaman, A. - Reconsidering the Welfare Principle in Pakistan (Pakistan Law Review) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4292128 1 Civil Judge and Judicial Magistrate, Karachi-South. Email: naeemakhtar2@gmail.com.