2nd December 2021
Speakers for the session titled Role of Children in Family Proceedings, held on day one of the Asma Jahangir Conference 2021 – Challenges to Human Dignity (November 20), noted that children’s place in the laws and justice system meant to facilitate them has been often ignored.
Moderated by UK family law firm Dawson Cornwell Partner and AGHS Legal Aid Cell board member Sulema Jahangir, the panel included Justice Jawad Hassan of the Lahore High Court; sitting judge of the UK family court, Justice Khatun Sapnara; Member of the National Assembly from the Pakistan Muslim League – Nawaz, Mehnaz Akbar Aziz; child rights activist, Mamtaz Gohar; with a pre-recorded keynote speech from Vice-President of the European Commission for Democracy and Demography, Dubravka Suica.
Paying her tributes to the late human rights defender Asma Jahangir, Suica reiterated that every child across the world should enjoy the same rights and live free from discrimination and intimidation of any kind. She stated that with the EU strategy on the Rights of the Child, the Union is renewing its commitment to protect, promote and fulfil rights of all children globally.
Lauding Pakistan’s efforts raising awareness on human rights, especially children’s rights, she stated that the high rate of child labour in the agriculture and mining sector, as well as the growing number of child domestic workers are matters of grave concern. Suica further stressed that the EU is playing its part in eliminating these harmful practices with a zero-tolerance policy for child labour in trade agreements.
She reiterated that it is crucial for the EU that Pakistan implements international human rights conventions, which the EU encourages through political and human rights dialogues like the Generalized Scheme of Preferences Plus (GSP+), and support to the Government of Pakistan in implementing these conventions by tackling shortcoming in its institutions at federal and provincial levels.
Dual qualified lawyer of the high courts of England and Wales and of Pakistan, Sulema Jahangir observed that family laws are the most ignored, notable by the sheer dearth of guiding principles in the superior judiciary regarding child custody matters and debate on important legislation passed on family laws.
Justice Hassan noted that the laws, under Article 35 (protection of family, etc.) of the Constitution of Pakistan 1973 which provides that the State shall protect the mother, favour the mother and child. He held that when deciding custodial cases, it is important for the judiciary to look at a happy and fulfilling “ecosystem” for the child. Elaborating, he said one cannot hurriedly decide such cases unless one does not look at a number of factors, ranging from the economic stability of the parents to the child’s academic future, welfare, and sometimes religion where the case calls for it.
Judge Sapnara stated that the child is an individual and the subject of proceedings, for which the UK courts try to apply the principle of keeping the best interests and welfare of the individual child in the decisions as the child is entitled to that dignity. She felt it is important that children should be made aware of their rights early on as the decisions that are made by the courts can have immediate profound impacts upon a child as well as lead to longterm consequences.
She stated that if a child is a party to proceedings, judges in the UK try to ensure that the child not just have a voice but also actual representation. The child is entitled to the best lawyers in the country, and the funding is met by the State through legal aid. However, Judge Sapnara acknowledged that there are difficulties and financial constraints in Pakistani jurisprudence that can afford that dignity and care to a child in court proceedings.
She further stated that in the family unit and dynamics of society, the power imbalances for the girl child are often really profound and far more extensive than those that impact boys due to patriarchal values embedded in enacted laws.
MNA Aziz lamented that parliament is controlling and introducing certain ideologies to children, rather than letting them have a voice of their own.
Gohar was of the view that children are in much too vulnerable a position in court proceedings for them being afforded the dignity of having a role or voice, and it was an issue that needs to be kept alive and in the mainstream. He further pointed out that existing laws for the protection of children are rarely or insufficiently evoked, giving the example of the Juvenile Justice Act which was passed in 2018 but has yet to be implemented.