VISITATION RIGHTS FOR WELFARE OF MINORS

This article highlights the scope of visitation rights for non-custodial parents in Pakistan, taking into consideration The Guardian and Ward Act 1890, hereafter referred to as the 1890 Act, which bestows the responsibility of protecting the rights of minors on the State. The 1890 Act is built on the foundation of safeguarding the interest and welfare of minors, however, in practice there is an ambiguity within the law which in my view requires reform and will be discussed in this article.

In 2002 visitation rights were given statutory effect by an amendment in the Schedule of the Family Courts Act 1964 and visitation rights were explicitly mentioned for non-custodial parents. The definition of term visitation rights is not given in the 1890 Act, but according to Black’s law Dictionary, visitation refers to the non-custodial parents’ right of access to his child. The parent who does not have custody has visitation rights. According to section 7 of the Family Courts Act 1964, the non-custodial parent has a right to file a suit for visitation rights. This section does not specify details of the visits. Furthermore, there are issues regarding the interim visitation schedule of the minor during custodial litigation. Section 12 of the 1890 Act is silent on the frequency of visitation or its venue. The application under Section 25 of the 1890 Act is decided after taking down evidence of the parties and recording finding on a single or main issue whether it is in the interest and welfare of the minor that the petitioner is entitled to the permanent custody of minor or in whose custody welfare of the minor lies. After fixation of the visitation schedule pragmatically in order to streamline it and have a close watch on the visitation rights by the guardian judge a meeting sheet is also drawn up which contains particulars. The venue/place of meeting should be cautiously decided and in deciding the same primarily factors like the welfare of the minor(s), convenience and mutual antipathy/bitterness between the parties should always be considered. Similarly, the number of meetings, time and duration of periodic meetings must be rational and reasonable not affecting the minors. The visitation rights for overnights are granted in exceptional cases because shuttling of minors from one parent to the other may environmentally mal-adjust them which materially impacts the mental health and education of the minors. At the time of final disposal or during the pendency of petition under Section 25of the 1890 Act, the Court also lays down visitation schedule for special occasions like Eid ul Fitr, Eid ul Azha, summer vacations or birthdays of minors. Despite the basic consideration being the “welfare of the minor”, this visitation schedule is often as little as once a month or twice a month for two hours within court premises, over the years it has become precedent resulting in difficulties. Custody cases in courts can take up till five years before they are decided. The impact of divorce proceedings and custodial litigation without proper visitation schedules are detrimental to the child and may result in issues such as personality problems, substance abuse, criminal traits and depressive disorders. These factors are overlooked by the courts and the lack of mutual affection and respect from both parents turns the child against one parent. Visitation should not be viewed as a privilege to be exercised at the whim of either parent, but as a responsibility that should be fulfilled by the court where necessary. In Umer Farooq vs Khushbakht Mirza (2008 PLD 527 Lahore) it was held by the High Court that non-custodial parents have an inherent right to seek visitation to the minor. To sustain this right, a balanced annual visitation plan would benefit the child and allow them to interact with their parents in a home environment. Generally the judges make orders and change or curtail these rights without reason. Even with the protection of visitation rights for non-custodial parents under the Family Courts Act 1964, the situation is as described above. The proceeding should be seen as more than litigation between the parties as the rights for visitation are also for the benefit of the minor.

In Neil B.E. Baillie’s Digest of Muhammad Law (2nd Edition page 439), the rule regarding access is stated — “When a child is with one of its parents, the other is not to be prevented from seeing and visiting it.” In Muhammad Yaqub Ali v Mushtaq Ahmad (PLD 2008 L.527), it was held that a minor cannot be allowed to be taken away by the visitor to a place outside the territorial jurisdiction of the guardian judge unless it is supervised by a bailiff of the court. These restrictions have been justified as necessary due to risks of child kidnapping, however these measures have strained child and parent relationships. The emotional bond of parents with children may be destroyed, partly because of not being able to meet them and partly because, in many instances, one of the parents pitted the child against the other. Instead of playing the role of a bridge, the courts are acting as a barrier between parents and children. The notion of non-custodial parents being allowed to meet their children outside the guardian courts has not been implemented to date.

The Convention on the Rights of the Child 1989 is the most significant global instrument on children’s rights to which Pakistan is a signatory. A reasonable and appropriate interim visitation schedule, or shared parenting, is an extension of the Article 5 of the CRC states that “state parties shall respect the responsibilities, rights and duties of parents”, exemplifying how important equal parenting is for children. For the purpose of the said Article, the objectives to be achieved involve how the children feel that they have two properly involved parents who have broadly equal ‘moral authority’ in their eyes, the children absorb values and traditions from both families in substantial measures in order to carve their own sense of belonging and identity. Time is allocated for both parents in such a way that no one parent is excluded from any aspect of the child’s life. The children must get equal or substantial and significant time with both parents, to be showered with love and affection, irrespective of the conflict between the parents. However, the rules regarding custody in Islamic law and Pakistani law are discriminatory and a violation of Article 2 of the CRC; there is discrimination between the mother and the father regarding rules of custody and guardianship. Another objection against these rules is that the rules of custody are based on the age of the child and not on its best interests as enunciated in Article 3 of the CRC. According to Sections 352 and 357 of D.F Mulla’s Principles of Muhammadan Law the mother is entitled to the custody of her son until the age of seven years and daughter until she has attained puberty. In Mst. Imtiaz Begum v Tariq Mehmood (1995 CLC 800), the Lahore High Court allowed the mother to keep the child till attaining the age to receive formal education. According to the court, this age would be determined according to the custom of the area of parent’s residence. It was further said that the ages of seven or nine was not a requirement of Islamic law.  The case is an example where the judge deviated from Islamic law and such decisions affect rights of custodian as well. However, had laws relating to the period of custody been laid down, judges would not have been able to exercise their discretion. The courts have presumably awarded custody according to the rules of personal law, however, whether this is in the best interest of the child is unclear. If it is evident from the circumstances of a case that following personal law is not in the interest of the child, the decision will be in accordance with his/her interest. In Mohammad Bashir v Ghulam Fatima (PLD 1953 Lahore 73), the court emphasized that in Islam the consideration of the best interests of the child is cardinal and if there is any conflict the welfare of the child triumphs. Despite the fact that the Holy Quran ordains, that, “No mother should be harmed through her child and no father through his child”, non-custodial parents feel chastened when they cannot meet their own child sufficiently as a result of due process, while they are made to earn every minute’s meeting with the child by spending money, energy and time, in shape of heavy legal expenses, various applications and surety bonds. Furthermore, Surah Al Baqra’s verse 233 says that, “No person is charged with more than his capacity”. No parent can reasonably be expected to perform all duties of both parents for a child.

In 2008 an effort was made by the Pakistan Peoples Party’s government to amend the Act 1890. The Guardians and Wards Act Amendment Bill 2008 was tabled in the National Assembly but it was never passed. Through this bill, amendment was proposed in section 12(1) to include the proviso that in a custody dispute the court shall on the first date of hearing pass an interim order to handover custody of a minor boy if he has not attained the age of seven years and a minor girl if she has not attained the age of sixteen years to the mother. Visitation rights would be granted to the father.

To conclude, it can be stated that the lack of jurisprudence on this area of family law has lead to stagnation instead of the law developing incrementally. In Pakistan sole custody is the norm, however, in a majority of countries measures have been taken towards joint custody and third party custody to cater to the welfare of children. Despite attempts of reform such as the Child Protection System Bill (2014) and the KPK Child Protection and Welfare Act (2010) conspicuous positive changes have not been seen. To impose a time limit for deciding custody disputes is a much-needed provision as litigants suffer due to prolonged litigation. Currently in Pakistan, due to deficiencies in the implementation of law, the courts in some cases follow the personal law of the minor whereas in other cases they decide them based on the welfare of the child resulting in ambiguity. These issues can only be resolved through specific legislation which will deter problems of wide interpretation and allow consistent decision making which is the basic objective of any legal system. It can therefore be said that prompt action is required to ameliorate the state of visitation rights for parents in Pakistan.

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