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.