‘Old Enough’ to Be Heard: Child Agency and Shared Parenting in Pakistani Custody Law

The question of when a child is ‘old enough’ to be heard in custody proceedings is deceptively simple. In Pakistan, Section 17(3) of the Guardians and Wards Act, 1890 permits courts to consider the preference of a minor ‘old enough to form an intelligent preference,’ yet provides no objective criterion for determining when such capacity exists. This ambiguity has contributed to inconsistent and discretionary approaches to child participation, while risking the treatment of a child’s preference as an isolated evidentiary fact rather than a product of developmental maturity, lived relationships, and family circumstances. This paper argues that ‘old enough’ should not be determined by chronological age alone, but through the doctrine of evolving capacity, informed by Pakistani statutory law, constitutional values, Islamic legal tradition, the United Nations Convention on the Rights of the Child (UNCRC), and contemporary developmental psychology and neuroscience. Article 12 of the UNCRC recognizes the right of a child capable of forming views to express them freely in matters affecting the child and requires those views to receive due weight according to age and maturity. The Supreme Court of Pakistan’s emerging rights-based approach to custody and guardianship provides an important doctrinal foundation for interpreting Section 17(3) consistently with these principles. Drawing upon Piaget, Erikson, and Kohlberg, together with neuroscientific insights concerning cognition, executive functioning, risk assessment, and emotional development, the paper proposes that courts assess “intelligent preference” through functional maturity rather than an arbitrary age threshold. Relevant indicators include the child’s ability to communicate a choice, understand relevant information, reason independently, and appreciate its consequences. The paper advances a further proposition: a child’s right to be heard cannot be meaningfully separated from the opportunity to maintain meaningful relationships with both parents. A preference formed after prolonged custodial isolation, restricted visitation, parental alienation, or unequal relational exposure may reflect circumstance rather than an autonomous and adequately informed choice. Hearing the child without addressing these conditions risks recording the effects of an imbalanced custodial environment rather than authentically assessing the child’s wishes. Accordingly, the paper proposes a rights-based procedural framework in which shared parenting or substantially balanced parental contact operates as a safeguard for genuine child participation. It recommends a rebuttable presumption of meaningful parental contact during custody litigation, structured opportunities to maintain relationships with both parents, multidisciplinary maturity assessments, child-sensitive judicial procedures, neutral psychological or parenting evaluations, and specialized training for judges and guardians ad litem. The paper ultimately reframes ‘intelligent preference’ not as a threshold-based privilege that arises only with age, but as an exercise of child agency that requires appropriate developmental and relational conditions. The legal process should protect the child’s opportunity to experience and maintain meaningful relationships with both parents before placing decisive weight on the child’s preference. Shared parenting, therefore, is not merely a question of parental equality; it may constitute a procedural safeguard for authentic child agency and a more reliable determination of the child’s best interests.