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"Old Enough" to be Heard: Doctrinal and Legal Foundations of Child Participation in Pakistani Custody Law towards a Rights-based, Interdisciplinary Framework for Child Participation in Pakistani Custody Law
Fahad Siddiqi ·
Summary
Written by AI, not yet AICS's view · claude-sonnet-5-5This article looks at how children's views are taken into account in child custody cases in Pakistan. It notes that Section 17(3) of the Guardians and Wards Act, 1890 lets a child express a preference once old enough, but gives no clear test for when that is. It describes a Supreme Court judgment that moved custody decisions from the older 'best interest of the minor child' idea toward the child's rights and welfare under Articles 3 and 12 of the UNCRC. The article argues that a multidisciplinary framework is needed, combining Islamic law, Pakistani statutory law, international human rights standards and developmental psychology.
Key points
- Section 17(3) of the Guardians and Wards Act, 1890 allows a child old enough to form an intelligent preference to have it considered in custody proceedings.
- The statute gives no clear benchmark for when a child is mature enough, leading to inconsistent judicial interpretations that are disconnected from developmental science.
- In Dr. Muhammad Asif v. Dr. Sana Sattar and others, the Supreme Court shifted from the colonial-era 'best interest of minor child' notion toward the child's rights and welfare under UNCRC Articles 3 and 12.
- The judgment is described as recognising minor wards as active bearers of rights whose preferences must be respected.
- The article proposes a framework that integrates Islamic law, Pakistani statutory law, international human rights standards and developmental psychology to put evolving capacity into practice.
Limitations
Only the abstract is available, so the detailed legal analysis, the proposed framework and any supporting evidence cannot be assessed. The document does not evaluate an intervention or measure outcomes for children.
Abstract
Section 17(3) of the Guardians and Wards Act, 1890, suggests that in custody proceedings, a minor can be considered capable of expressing a reasoned choice once they attain a certain level of maturity. The Supreme Court reaffirmed this principle in its judgment in Dr. Muhammad Asif v. Dr. Sana Sattar and others 2 has redefined the framework for deciding child custody cases, shifting from the colonial-era notion of the "best interest of minor child" to the internationally recognized standard of the Child's rights and welfare as protected in Articles 3 and 12 of the UNCRC). This judgment represents not merely a legal reform but an archetype shift, recognizing minor wards as active bearers of rights whose preferences must be respected in decisions impacting their lives. Hitherto, the statutory language in the said provision that refers to children being "old enough, to form an intelligent preference" remains ambiguous and provides no clear benchmark for determining when a child is sufficiently mature to exercise this right, resulting in inconsistent judicial interpretations disconnected from developmental science. From the perspective of this article, entitled 'Old enough" to Be Heard: Doctrinal and Legal Foundations of Child Participation in Pakistani Custody Law, this statutory vagueness calls for a multidisciplinary approach. Such a framework integrates Islamic law, Pakistani statutory law, international human rights standards, and developmental psychology to operationalize the concept of evolving capacity, ensuring that custody decisions are guided by both legal obligations and a scientifically and ethically informed understanding of child development.