Islamabad:
The Apex Court judged that all the courts, in particular the family courts and the judges of the judiciary of district were to hear and respect the voice of the child in each case of guard and guardianship.
“It is not an ambitious objective but a binding obligation under the CRC [UN Convention on the Rights of the Child]”Said a written order of 12 pages on an examination petition filed by a father in a case of child care.
The United Nations Convention on the Rights of the Child: Article 3 requires that the best interests of the child be a main consideration in all actions concerning them.
Article 12 of the CRC guarantees each child the right to freely express their opinions in all subjects affecting, with the weight due in accordance with their age and their maturity.
The court noted that the previous procedure failed to offer children the possibility of being heard, an omission which, she said, undermines both national constitutional protections and our international commitments.
“Given the central importance of the voice of a child in the determinations of the guard, we have found imperative to re -examine the case to ensure that these rights are not only recognized but confirmed significantly.
“To rectify this surveillance and ensure that the well-being and prospects of children were duly considered, this court deemed it necessary to interact directly with the two children involved.
“The interaction has enabled the bench to make an evaluation independent of their emotional well-being, their level of comfort and their preference expressed,” added the judgment.
The verdict issued by a division bench including judge Syed Mansoor Ali Shah and judge Aqeel Ahmed Abbasi noted that the courts, in particular the courts, have a moral and legal responsibility to see, hear and protect each child not as a passive subject of procedures, but as a person depositing the rights whose dignity must be safeguarded at each stage of the legal process.
He also noted that in questions involving children, such as custody, guardianship and family disputes, courts must recognize that a strictly opponent’s approach often exacerbates conflicts, delays the resolution and the feeling of child stability and security.
On the other hand, the alternative settlement of disputes (ADR), in particular mediation, offers a more collaborative, effective and sensitive mechanism to resolve these disputes. Although the CRC does not explicitly reference the term ADR, its spirit and its structure clearly support its use.
“In the general commentary n ° 12 (2009), the United Nations Committee on CRC explicitly encourages states to develop mechanisms which guarantee significant participation of children in family law procedures, including through non -judicly and informal processes such as mediation.
“Such processes must be voluntary, adapted to children and facilities by trained professionals to respect the evolutionary capacities of the child and prioritize their best interest.
“The properly designed ADR mechanisms reduce the psychological burden of children, promote parental cooperation and lead to faster and more sustainable results that support the child’s long-term well-being.”
He declared that the family courts and the supervisory courts must prioritize mediation as the first appeal, in particular when the parties demonstrate a desire to engage in good faith.
“Arbitration should only be continued when mediation fails or is deemed unsuitable due to security concerns, coercion or imbalance of power.
“This approach is aligned not only with our international obligations under the CRC, but also strengthens the constitutional commitment to protect the dignity, well-being and the future of each child,” he said.
