Disputes involving kids: Mediation offers a mutually beneficial solution: SC
'In contrast, Alternative Dispute Resolution (ADR), particularly mediation, offers a more collaborative, efficient, and child-sensitive mechanism for resolving such dispute. While the CRC does not explicitly reference the term ADR, its spirit and structure clearly support its use,' said a two-judge bench comprising Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi's verdict in children custody case.
The bench gave children custody to their mother. The bench directed that all courts, particularly Family Courts and judges of the District Judiciary that 'the voice of the child must be heard and respected in every custody and guardianship matter'.
The 12-page judgment, authored by Justice Mansoor, said that properly designed ADR mechanisms reduce the psychological burden on children, promote parental cooperation, and lead to faster, more sustainable outcomes that support the child's long-term welfare. Accordingly, Family Courts and Guardianship Tribunals must prioritise mediation as a first recourse, particularly where parties demonstrate a willingness to engage in good faith. Adjudication should be pursued only when mediation fails or is deemed unsuitable due to concerns of safety, coercion, or imbalance of power.
It said that the principles enshrined in Articles 3 and 12 of the CRC, the primacy of the child's best interests and the right to be heard find clear constitutional resonance in Articles 9, 14, 25 and 34 of the Constitution. Article 9 guarantees the right to life, which includes the right to a healthy, secure, and meaningful life. Article 14 protects the inherent dignity of every person, including children. Article 25 enshrines equality before the law and nondiscrimination, and Article 34 obligates the State to ensure the protection of motherhood and childhood.
It noted that collectively, these provisions establish a strong constitutional foundation for child justice and child-centered adjudication, aligning Pakistan's constitutional values with its international obligations under the CRC and other international instruments it has ratified16. The Constitution further reinforces these obligations. Article 25(3) empowers the State to enact special provisions for the protection of children, including measures that may favorably differentiate them from adults.
The judgment underscored that courts are bound to approach all matters 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, who require rehabilitative and restorative processes rather than punitive sanctions, but also children in contact with the law, including those involved in custody and guardianship disputes and other civil proceedings who must be treated with dignity, heard, protected, and empowered throughout judicial proceedings.
As custodians of justice, courts bear a heightened responsibility to prioritise the best interests of the child in all decisions affecting them. This principle, central to international child rights jurisprudence, demands that the judiciary transcend procedural formalism and engage substantively with each child's unique vulnerabilities, developmental needs, and future potential. Such an approach requires judicial sensitivity, active participation of children in proceedings (where appropriate), and the creation of child-sensitive courtroom environments that respect their dignity and ensure their voices are not only heard but meaningfully considered.
Copyright Business Recorder, 2025
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