ISLAMABAD: The Supreme Court has underscored the need that courts, particularly family courts and judges of the district judiciary, must hear and respect the voice of the child in cases relating to their custody and guardianship.
“This is not an aspirational goal but a binding obligation under the UN Convention on the Rights of the Child (CRC),” Justice Syed Mansoor Ali Shah wrote in a judgement on a case related to the custody of two children.
Justice Shah emphasised that courts, especially family courts, had 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.
The proceedings were initially instituted by Dr Sana Sattar (mother) who filed an application for custody of her two children before the senior civil judge (family division), Layyah. While her application was dismissed on July 14, 2023, a visitation schedule was framed to facilitate meetings between her and her children.
Both parents, however, filed separate appeals before the court of additional district judge, Layyah, which granted children’s custody to their mother and ordered a visitation arrangement for their father, Dr Muhammad Asif.
The father then filed a constitutional petition before the Multan bench of Lahore High Court, which got dismissed on May 24, 2024. Later, an appeal before the apex court met the same fate on July 18.
Subsequently, the father moved a review petition before the Supreme Court. A two-member bench comprising Justice Shah and Justice Aqeel Ahmed Abbasi heard the matter and maintained that the custody stands vested with the mother.
While dismissing the review petition, the court also directed the parties to strictly adhere to the visitation schedule determined by the lower appellate court though the custody of the children would continue with the mother unless and until the father moves “a fresh application for custody to be adjudicated by a competent forum in light of any material change in circumstances”.
In the 12-page judgement, Justice Shah explained that the best interests of the children, particularly the child with special needs, were best served by keeping them in the custody of their mother. No alternative caregiver can fully replicate the intuitive care, emotional constancy, and protective environment a mother is uniquely positioned to offer, the judgement emphasised, adding that even a working professional mother does not detract from her suitability as a custodial parent. On the contrary, it reflects her resilience and her commitment to providing a secure, nurturing, and dignified upbringing for her children.
The judgment asked the courts to adopt a child-friendly, participatory approach while underscoring the need that courts should deal with cases involving children through the lens of a dedicated child-centered and child justice framework, a judicial philosophy grounded in both legal and moral obligations to safeguard, nurture and empower children within the justice system.
The concept of child justice is broad and inclusive. It encompasses not only children in conflict with the law, requires rehabilitative and restorative processes rather than punitive sanctions, but children involved in custody and guardianship disputes must be treated with dignity, heard, protected, and empowered throughout judicial proceedings, the judgment emphasised.
Courts bear a heightened responsibility to prioritise the best interests of child in all decisions affecting them. This principle demands that the judiciary transcend procedural formalism and engage substantively with each child’s unique vulnerabilities, developmental needs and future potential.
Published in Dawn, May 29th, 2025
