- Judges must remember they are dealing with children
By Fahad Ahmad Siddiqi Advocate
In guardianship matters, a court has to exercise quasi-parental jurisdiction as the supreme consideration is the welfare of the minor before the Court. To achieve this, courts had unfettered powers. Interim Visitation Schedule is required to be chalked out on such principles. Contesting parents have inherent right to seek visitation to the minor, which is a statutory right of the father, being a Non-Custodial Parent.
Section 5 of the Schedule to the Family Courts Act, 1964 say: 5. Custody of children [and the visitation rights of parents to meet them].
‘Visitation’ has not been defined in either the Guardian & Wards Act 1890 or in the Family Courts Act 1964, hence we are constrained to resort to its Law Dictionary meaning: “Visitation means a non-custodial parent’s period of access to a child. Visitation right means a non-custodial Parent’s, Court-ordered privilege of spending time with a child who is living with another person, usually the custodial parent. A visitation order means an order establishing the visiting rights for a non-custodial parent with his children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit. Hence the word “Parents” is categorically mentioned in Section 5 of the Schedule attached with the Family Courts Act 1964, allows grant of visitation rights to not only the father but also the grandparents of the minor.”
The learned presiding judges of the Appellate Courts have developed a tendency to allow ad interim injunction in Appeals merely on the basis of an affidavit of the Stay Application attached with the Appeal filed against the grant of visitation rights by the Guardian Courts under the mistaken notion that their appellate jurisdiction under Section 14 of the Family Courts Act is a substitute for their CPC civil jurisdiction. This failure to appreciate the difference between general jurisdiction and the quasi-parental jurisdiction by virtue of their office is practically playing havoc with litigants in general and minors in particular.
This relief of “minimum at home visitation schedule” should be available to all non-custodial parents without discrimination from the very beginning of the trial, at least during the interim stage
Before grant of an ad interim injunction a Learned Appellate Court should appreciate that it is a common practice among couples to use kids as pawns in the game of emotional chess. It amounts to absolutely irresponsible parenting to scar children emotionally post-separation. In due course the parents move on in their lives and onto another partner, but children carry the trauma of being manipulated and torn apart emotionally, all their lives. In my legal experience I have seen a large number of these kids suffering from personality problems, conduct, disorder, and substance abuse, criminal and antisocial traits, and all just because of appropriate contact denial with Non-Custodial Parents involved in custody litigation in the garb of procedural technicalities.
Scores of appeals against Visitation Orders by the Guardian Courts are pending adjudication in almost each Appellate Court and hundreds of such Appeals are pending adjudication throughout Punjab in Guardian Appellate Courts. The core reason in the majority of such Appeals is that the Learned Appellate Courts has granted Stay Orders/Interim Injunctions, merely on the presentation of an affidavit by the appellant. In almost all such appeals, multiple dates have also been issued to the appellants and a number of applications for vacations of such injunctions have been filed but to no avail.
The Law of Interim Injunction in Family Jurisprudence is an issue not yet addressed by any court of appropriate jurisdiction except that mere notices and summons are issued one after the other. The appellate courts’ failure to ensure compliance has resulted in gross miscarriages of justice to not only the non-custodial parents but the minors are left alone to bear the brunt.
Our hierarchy of Courts in Family Jurisdiction are expected to exercise a quasi-parental jurisdiction and to act in Loco Parentis, deal with the delicate matters touching the rights of the people, particularly deprived minor children and their non-custodial Parents, instead of dealing with such rights of access and visitation mechanically. There is a need for a new line of action to create a welfare state. Grant of interim injunctions against visitation rights merely on appellants’ affidavits without appreciation of child psychology serves no useful purpose to either parents or minors. Rather their miseries are enhanced.
That the relief of injunction is discretionary and equitable, which a party cannot claim as a matter of right and he who seeks equity must come to the court with clean hands. Before grant of such relief the court has to be satisfied that the party seeking such relief has not acted inequitably. And the party seeking interim injunction must also satisfy the Court that an interference is necessary to protect it from the species of injury which the Court calls “irreparable loss” before the legal right could be established. For adjudication of the question of granting or withholding preventive equitable relief, an injury is said to be irreparable because no legal remedy furnishes full compensation for it or there was no adequate redress for such injury or there existed inherent ineffectiveness of legal remedy for such injury.
Some serious steps should be initiated by our superior judiciary in this regard and to curb the abuse of process of law being carried out in the name of welfare of minors. Special education and workshops are required to cause awareness for Guardian Judges that they are obliged to pass speaking orders while acting as judges and while curtailing civil rights of non-custodial parents (fathers mostly) they must assign valid reasons as to why a minor should be produced in a court premises for the purpose of meeting his non-custodial parent, especially when every case is required to be decided on its own facts.
The judges appointed as guardian judges should be given special training to the effect that the principles of natural justice are fully applicable in guardianship proceedings as well. If an accused is the most favourite child of a criminal law then a non-custodial father shares almost the similar status in child custody litigation, hence he should be considered a human being at least if not a most favourite child of law and must be given basic amenities, as he is entitled under the Constitution.
The Chief Justice of the Lahore High Court must take notice of the affairs in the Guardian/Family Appellate Courts and a direction issued to all the Learned Judges functioning within its supervision, to ensure protection of fundamental rights of fair trial, privacy and dignity of man, and other rights of children from broken families and of the non-custodian parents, by announcing a reasonable at-home “minimum standard” visitation schedule right from the start of the child custody litigation, like the fixation of interim maintenance allowance under the provision of Family Courts Act 1964. This relief of “minimum at home visitation schedule” should be available to all non-custodial parents without discrimination from the very beginning of the trial, at least during the interim stage till the final disposal of litigation pending adjudication before the Learned Guardian/Family Judges.