ISLAMABAD:
The apex court has ruled that all courts, particularly family courts and judges of the district judiciary must hear and respect the voice of the child in every custody and guardianship matter.
“This is not an aspirational goal but a binding obligation under the CRC [UN Convention on the Rights of the Child],” said a 12-page written order on a review petition filed by a father in a children custody case.
The UN Convention on the Rights of the Child: Article 3 mandates that the best interests of the child shall be a primary consideration in all actions concerning them.
Article 12 of the CRC guarantees every child the right to express their views freely in all matters affecting them, with due weight given in accordance with their age and maturity.
The court noted that earlier proceedings regrettably failed to provide the children an opportunity to be heard, an omission which, it said, undermines both domestic constitutional protections and our international commitments.
“Given the central importance of a child’s voice in custody determinations, we found it imperative to re-examine the case to ensure that these rights are not only acknowledged but meaningfully upheld.
“To rectify this oversight and to ensure that the children’s welfare and perspectives were given due consideration, this court deemed it necessary to interact directly with both children involved.
“The interaction enabled the bench to make an independent assessment of their emotional well-being, level of comfort, and expressed preference,” the judgment added.
The verdict issued by a division bench comprising Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi noted that courts, especially family courts, have a moral and legal responsibility to see, hear, and protect every child not as a passive subject of proceedings, but as a rights-bearing individual whose dignity must be safeguarded at every stage of the judicial process.
It also noted that in matters involving children, such as custody, guardianship, and family disputes, the courts must recognize that a strictly adversarial approach often exacerbates conflict, delays resolution, and undermines the child’s sense of stability and security.
In contrast, Alternative Dispute Resolution (ADR), particularly mediation, offers a more collaborative, efficient, and child-sensitive mechanism for resolving such disputes. While the CRC does not explicitly reference the term ADR, its spirit and structure clearly support its use.
“In General Comment No. 12 (2009), the UN Committee on the CRC explicitly encourages States to develop mechanisms that ensure meaningful child participation in family law proceedings, including through non-judicial and informal processes such as mediation.
“Such processes must be voluntary, child-friendly, and facilitated by professionals trained to respect the evolving capacities of the child and prioritize their best interests.
“Properly designed ADR mechanisms reduce the psychological burden on children, promote parental cooperation, and lead to faster, more sustainable outcomes that support the child’s long-term welfare.”
It said family courts and guardianship tribunals must prioritize mediation as a first recourse, particularly where parties demonstrate a willingness to engage in good faith.
“Adjudication should be pursued only when mediation fails or is deemed unsuitable due to concerns of safety, coercion, or imbalance of power.
“This approach not only aligns with our international obligations under the CRC but also reinforces the constitutional commitment to protect the dignity, welfare, and future of every child,” it said.
