Open Access Research Article
THEORIZING CUSTODY JURISPRUDENCE AND THE BEST INTEREST PRINCIPLE IN SOUTH ASIAN COUNTRIES
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Article Details
THEORIZING
CUSTODY JURISPRUDENCE AND THE BEST INTEREST PRINCIPLE IN SOUTH ASIAN COUNTRIES
AUTHORED BY
- SYED MUJTABA ATHAR
Abstract:
This paper aims to provide a
theoretical framework for analyzing custody jurisprudence and the best interest
principle in South Asian countries. The paper first discusses the need to break
free from the critique-based explanation strategies that have long guided
custody jurisprudence and family law. The paper then explores the international
framework of jurisprudence for ensuring the rights of children, particularly
the UN Convention on the Rights of the Child (CRC), which has expanded the
horizon of reading the child rights into the interdisciplinary and
comprehensive framework of legal protection within the international norm as
well as private family law. The paper further examines the concept of the best
interest of the child, which serves as an anchoring consideration in both
public and private international law for the implementation of any
international framework that seeks to safeguard and protect the rights of the
children. Finally, the paper discusses the various constituent factors making
up the concept of welfare, including religious, intellectual, physical, social,
and emotional welfare, parental capacity, the wishes of the child, and keeping
siblings together. The
article also highlights the importance of ethical judgments and a pluralistic
approach to family law, as opposed to presenting a false unity of legal
regulation. Ultimately, the article concludes that further research is needed
to better understand the determinants of the best interest principle and their
implications for policymaking in child custody laws.
Keywords: family law, best interest principle,
child custody determinants, UN Convention on the Rights of the Child.
1.
Introduction
The legal regulation of family
relationships and the welfare of children within those relationships is a
complex and multifaceted area of law that has significant implications for
families, individuals, and society at large. The challenges posed by custody
disputes, child abduction cases, and other related issues have prompted a great
deal of scholarship and jurisprudence aimed at developing a theoretical
framework for understanding and addressing these problems. This article aims to
contribute to this body of work by examining the role of theoretical frameworks
and international law in shaping the jurisprudence and practice of family law,
with a specific focus on the best interests and welfare of the child.
The first section of this article
explores the various theoretical perspectives that have been proposed for
understanding family relationships and the legal regulation of those
relationships. It argues that while the public/private dichotomy has been a
common approach to operationalizing family relations, this dichotomy has
limitations and may not be the most effective way to approach the problem.
Instead, the article suggests that a more nuanced and context-specific approach
is needed that takes into account the particular circumstances and concerns of individual
families and children. In doing so, the article draws on the ideas and writing
style of legal philosopher Gillian Douglas, who has argued that a comprehensive
theory of power or a systematic politics of social change is not necessary for
effective social analysis and action.
The second section of this article
focuses on the best interests and welfare of the child, which is a key concept
in international law and a critical consideration in any custody dispute or
related legal matter involving children. The article explores the various legal
instruments and frameworks that have been developed at the international level
to safeguard the rights of children and ensure their well-being, including the
UN Convention on the Rights of the Child and the work of the Hague Conference
on Private International Law. It also examines the determinants of the best
interests of the child, including religious, intellectual, physical, social,
and emotional well-being, as well as parental capacity and the wishes of the child.
Drawing on the legal jurisprudence and scholarship from various jurisdictions,
the article argues that a holistic and contextual approach is necessary to
determine the best interests of the child, and that the various determinants
must be weighed and considered as a whole.
In sum, this article seeks to
contribute to the ongoing discourse and scholarship surrounding family law and
the best interests and welfare of the child. By drawing on the ideas examining
the complex legal frameworks and determinants that shape the practice of family
law, the article aims to provide a comprehensive and nuanced understanding of
this critical area of law and its implications for families and society.
2. Custody
Jurisprudence and Family Law: Theorizing Family Law
Where should we go when beginning to
theorize about the family, its legal regulation, authority, and
vulnerabilities? The public/private dichotomy, under which family relations,
such as child custody and care, are operationalized, is a common dichotomy that
has been embraced. Before embarking on such an examination, it is essential to
note that any social analysis that is to be relevant and faithful to its
purpose must break free of the critique-based explanation strategies that have
long guided its efforts.[1] For
academics and policymakers, criticism provides a variety of benefits: it
simultaneously seeks to explain, evaluate, and recommend an alternative.
Breaking with criticism reveals a multiplicity of behaviours and abilities that
are resistant to global scrutiny and evaluation. Consequently, they do not
recommend the development of a comprehensive theory of power or a systematic
politics of social change. Rather, they advocate a more modest task: beginning
with particular issues or concerns, revealing the circumstances and assumptions
that have permitted them, as well as the benefits and drawbacks they entail.
These questions generate ethical issues that cannot be answered by political
slogans and need difficult and compromise-inducing ethical judgements. The purpose
to this discussion is to emphasise the many dichotomies and divisions proposed
by theorists in order to comprehend and criticise family connections, which are
crucial to comprehending the custody problem and associated modalities. What
about family as the site of female subjugation? This is one extremely popular
theme amongst the scholars based on the public-private dichotomy of family
life, including decisions and control over child custody and welfare.[2]
The other theme is the care, obligation and commitment in family relation
suggested by Professor Douglas.[3]
This section will discuss these two approaches.
2.1 The Public-Private divide
The public-private divide parallels
comparable discussions on perennial topics such as morality, sexuality, marriage,
reproduction, and child custody. How much should the government intervene in
the lives of its citizens? How well do government agencies make decisions on
care, custody, and other issues? Which aspects of morality are important to the
general population, and which are not? Is there an area of private life and
personal morality where the law has no jurisdiction? Have state acting as parens
patriae has colonised families at the expense of personal freedoms and
formal legal protections? Add to this the complexity of oriental biases
inherent in the imperial western world against the people of color.[4]
The questions have been around for a long time, and the issues appear to be
both critical and eternal. This dichotomy of public/private constitutes the
liberal construction of the world around us.[5] It
is argued that it is one of the many opposites that shape our consciousness.[6] In
law, it serves less as an analytic instrument or means of judging cases than as
a sort of political rhetoric used to explain value judgments.[7] It
acts more as a legal fiction that can bind judicial reasoning to existing
values and belief. One such legal fiction is the state classifies certain areas
of life as "private”.[8]
The critical legal analysts argue that the ideology of individual choice and
personal freedom in the private domain of home and family justifies a refusal
by public authorities to intervene in certain places, activities,
relationships, legal regulation of marriage, divorce, child custody.[9]
Designating them as personal, private, and subjective makes them appear to be
natural and outside the reach of the state, yet non-intervention is a socially
constructed, historically variable, and inescapably political decision. Reform
strategies by these critical legal scholars of public-private dichotomy seek to
increase public law regulation of family relations; against the resolution of
family conflicts informal means like negotiation and settlement; non-judicial
dispute resolution forums such as conciliation and family courts, and advocate
that the powers, duties, and responsibilities of parties to domestic
arrangements should be defined, discussed and criticized.[10] Commonly,
conciliation and family courts are represented as ways and institutions that
would increase the private parties' abilities, capacities, autonomy, and
accountability while decreasing damaging conflict and safeguarding their
interests. According to critics of the public/private divide, reducing such
controls as flow from formal legal hearings - legal representation, due
process, etc. - will have different consequences: ignoring real conflicts in
capacities, situations, and wishes; denying power inequalities; and, in
general, increasing the authority of welfare professionals over family members
and men over women. In addition, the expansion of mediation and family courts
is viewed as a pleasant language concealing an increase in governmental authority.
2.2 Obligation and Commitment framework in Family Law
The obligation and commitment
framework are a theoretical framework that seeks to explain the nature of
family relationships and the legal obligations that arise from them. It
proposes that family relationships are based on mutual obligations and
commitments between family members, which are not necessarily enforceable by
law. However, family law can be used to regulate these obligations and
commitments in certain circumstances. Thus, the notion that the family can be
private in the sense of being unregulated by the state is not true if we
observe.[11] The
state cannot resist interfering in the formation of family relationships to
sanction and codify everything related to marriage, divorce and custody issues.[12]
Conversely, the state has built sophisticated welfare procedures, particularly
those relating to the overall development of children, through public
legislation. No matter how powerful the legal ideology of family privacy is,
legal functionaries make decisions about children's best interests and welfare
in cases involving child custody and guardianship, as well as other aspects of
family disputes, based on ideological and patriarchal notions about morality,
responsibility, and family life, and what is best for children.[13]
Additionally, it fails to express the complexities of authority in family structure,
as well as the duties, obligations, sufferings, and joys that have been shaped
by the state, religion, economic production, culture, and traditions. This is
not to dismiss the extent to which many areas of family life disadvantage
women, or the failure of legislation and enforcement agencies to address this
inequality.[14]
Accepting all of this, feminist criticisms and suggestions will be of little
use unless they provide a fruitful understanding of the new kinds of power and
authority that have evolved in the modern world, as well as the tactics they
use. Also from a functional perspective, the public-private dividing taxonomy
is erroneous and misleading for exactly four reasons. First, it obscures the
degree to which the state permits the child welfare system to impose social
standards on the family life of specific groups of individuals, especially
women in their roles as spouses and mothers. Second, it covers the reality that
men's right to privacy is often abused to oppress women and children. Thirdly,
it is puzzling that the government determines both the limitations and the
boundaries of privacy. Lastly, it legitimises the state's legal unwillingness
to intervene in specified sectors or relationships.[15]
Therefore, it is reasonable to infer that the public-private dichotomy,
although aiding in the creation of a lens for understanding family
relationships, does not provide answers to some of the most important problems
raised at the outset of this chapter.
2.3 The need for ethical judgments
The need for ethical judgments in
family law is crucial. The role of law in regulating family relationships
involves complex ethical issues that require consideration and resolution. In
family law problems, there is no clear distinction between the public and
private sphere. Legal jurists and legislators, using a range of legal
pedagogies in their work, were responsible for the evolution of the family law.
Inheritance, marriage, divorce, custody, and child protection are just a few of
the sectors of law that utilise several legal statuses to define their separate
aims and authority. Throughout history, the law has evolved its approach to
regulating each of these diverse familial relationships at various times and in
response to altering concerns. They use distinct types of judgement and
strategies for executing the law, and have their own unique interpretations of
key terms. The variability of legal regulation should serve as a reference to
the law's social intelligibility and, perhaps, as the key to a policy plan that
is a response to it. Therefore, it is humbly submitted that rather than
presenting the variety of legal regulation a false unity, the pluralistic
approach makes more sense. A pluralistic approach acknowledges that different
people have different values, cultures, and beliefs, and therefore there is no
single solution that can work for everyone. Rather, it emphasises the
importance of considering the unique circumstances and context of each family
and encourages the use of a wide range of legal mechanisms to address family
law issues. By embracing this approach, we can begin to develop a more
comprehensive and effective framework for addressing the complex and varied
needs of families in today's society.
3. International
Framework of Jurisprudence for Children's Rights
International law has laid down a
comprehensive framework of jurisprudence for ensuring the rights of the
children. International law through treaties and customary law has played a
great role in establishing norms and standards for safeguarding the rights of
the children. The United Nations Organization with its principal organizations
as well as subsidiaries and network of NGOs in human rights organization has
been pivotal in the enforcement of children rights and ensuring that these rights
are respected and protected.
3.1 The United Nations Convention on the Rights of the Child
(UNCRC)
UNCRC is an international treaty that
sets out the civil, political, economic, social, and cultural rights of
children. It was adopted by the United Nations General Assembly in November
1989 and has been ratified by almost all countries in the world, except the
United States. The UNCRC recognizes that children have the right to participate
in decisions that affect their lives, including decisions about their custody
and care. The Convention requires that the best interests of the child be a
primary consideration in all actions concerning children, including custody
proceedings. Article 9 of the UNCRC states that children have the right to
maintain contact with both parents, unless it is contrary to their best
interests. This means that custody orders should be designed in a way that
allows children to maintain relationships with both parents, unless there are
compelling reasons to do otherwise. Article 12 of the Convention further states
that children have the right to express their views in all matters affecting
them and to have those views given due weight in accordance with their age and
maturity. The UNCRC has played an important role in shaping international child
custody jurisprudence by emphasizing the importance of the best interests of
the child and the child's right to participate in decisions that affect their
lives. It has also helped to establish a framework for international
cooperation in cases of cross-border child custody disputes, such as the Hague
Convention on the Civil Aspects of International Child Abduction.
3.2 Legal instruments through HCCH for the protection and
well-being of the various concerns related to child rights
This broad and significant framework
of UN CRC was strengthened by the promulgation of various legal instruments
through HCCH For the protection and well-being of the various concerns related
to child rights. In particular, non-recognition and enforcement of the custody
order, particularly in interstate child abduction cases, violates right of the
child to have contact with both parents against the child’s will.[16]
The two most important contribution of CRC has been the concept of the interest
of the child as well as Childs participation in proceedings which serves as an
anchoring consideration in both public and private international law for the
implementation of any international framework that seeks to safeguard and
protects the rights of the children. However, strangely none of the legal
instruments have elaborately described and identified the key elements that may
constitute the best interest of the child. Due to any definite clarification on
the subject, an absence of objective parameters to determine what constitutes
the best for the children's welfare, it has led to interpretations and
subjective judgments.
4. The Best
Interest Principle in South Asian Countries
In addition to the international
legal frameworks that guide the determination of the best interests of the
child in custody cases, many jurisdictions have their own specific
determinants. In particular, countries like Ireland, the United States,
Germany, and the Netherlands have elaborated on the various factors to be
considered when determining the best interests of the child. In South Asian
countries, however, there is no statutory definition of what constitutes the
best interest or welfare of the child. Nonetheless, many judicial decisions
have listed and discussed various determinants of the best interest principle.
For the purposes of this article, we will examine the constituent factors that
make up the concept of welfare in South Asian jurisdictions. By virtue of
constitutional and statutory mandates, the meaning of the term “welfare” for
the purpose of custody jurisprudence in South Asia is quite widely
defined. It includes the religious, moral, intellectual, physical and social
welfare of the child in question. The Guardian & Wards Act (GWA) enacted
during the British rule of India, still constitute the governing law for
Bangladesh, India and Pakistan. It makes it abundantly clear that in
considering an application relating to the guardianship, custody, or upbringing
of a child, or to the administration of property belonging to, or held in trust
for, that child, or to the application of the income of the child, the court
must have regard to the welfare of the child. It is court’s first and paramount
consideration but not the only consideration. But it does means that if there
if there is a conflict between the welfare of the child and other
considerations, the welfare of the child should be weighted above other
possible considerations in line with the nation’s obligation under the UN
Convention on the Rights of Child, 1989.
Although no statutory definition
exists in any of the South Asian countries with respect to what constitutes the
welfare of the child, many other jurisdictions like Ireland, USA, Germany and
Netherlands have elaborate determinants to establish the best interest
of the child and have been elaborated here.[17]
Apart from this, many judicial decisions in South Asian jurisdictions also
enlists and discuss determinants to the best interest principle. For the
purpose of this thesis, all the constituent factors making up the concept of welfare
shall be dealt with in turn. This is not to suggest that each of these factors
must be considered in vacuum. It is suggested that the court may consider all
these factors as a whole rather than as a series of distinct matters. A process
whereby when all the factors, relationship, claims and wishes of parents,
risks, choices and other circumstances are taken into account and weighted the
course.
4.1 Religious Welfare
Generally,
the courts have proved anxious not to disturb the religious and moral formation
of the child in question. Thus, the courts have often refused to give custody
of the child to parent who was in relationship with a person other than that of
the child. On the other hand, it seems in violation of the constitutional
mandate that a person may be denied a custody on the basis of his or her
religious persuasion. Hence, we fine tension between the constitutional
preference for free practice and promotion of the religion, and the
constitutional rule against discrimination on the basis of religious
profession, status or belief. A different religious inclination is however, not
an absolute bar to custody. One possible solution is to grant custody subject
to a condition as to religious upbringing of the child.
It is
suggested then, and with respect to the religious sensibilities of the parties
involved, that this factor must be considered in the light of the overall
welfare of the child. It is obvious, for instance, that a parent who is
otherwise unsuited to have custody of the child, should not be allowed to use
religious difference as a “trump card”, displacing all other considerations.
According to the Halsbury’s Laws of England, the mother of an illegitimate
child has the right to determine the religion of her child, so long as her duty
to support the child remains, which is up to sixteen years of age. However, it
is important to highlight that apart from the irish case, the author has found
no case determined by any courts in England or any standard textbook
determining this law. In India, the Madras High Court in the case of Pamela
Williams v. Patrick Cyril Martin[18], rejected
to be governed by Halsbury’s provision and denied the child custody to the
mother of the illegitimate thirteen-year-old child.
4.2 Moral Welfare
In addition
to the spiritual well-being, the court should also have regard to the
appropriate moral formation of the child. Formerly, it was considered that
where a parent was residing with a parent not his or her spouse, the lifestyle
of such parent was not conducive to the moral welfare of the child. In an
English case of JJW v. BMW,[19]
for instance, the Supreme Court of United Kingdom refused to award custody of
three children to a woman who had committed adultery. By virtue of her conduct,
the court believed that the father was the party more likely to safeguard the
children’s welfare than the mother. Fitzgerald J. observed that:
“The fact
is, however, that the home which [the mother] has to offer to the children is
one in which she continues an adulterous association with a man who has
deserted his own wife and his own two children. An unhealthier abode for the
three…children would be difficult to imagine”[20]
It is
criticized on the basis that the judges in the English Supreme Court relied on
a very narrower view of morality, one unduly focused on sexual matters, to the
virtual exclusion of more general consideration of morality. This is a
circumspect attitude that needs careful consideration. It is again suggested
that, although the moral welfare of children remains a factor of importance,
the consideration if moral propriety cannot displace the overall function of
the court in determining what solution is in the best interest of the child.
4.3 Intellectual welfare
The factor
concerns the educational and intellectual prospects of the child. That is not
to say, however, that the court must award a custody to the more learned or
better-educated parent, The court endevour to ensure that its decision, as best
as it can be, ensures that the child will have adequate opportunities for
education and formation as best promote the child’s development towards
adulthood. It is suggested, in this connection, that the term “education”
comprised not merely the formal education as a responsible and competent adult.
Where intellectual or psychological welfare is at issue, the practitioner
should always adduce professional evidence from a child psychologist in
establishing where the psychological welfare lies.[21]
4.4 Physical welfare
The court
have tended, in this case, to consider at least in relation to a child of
“tender years” (approximately 7 years old or younger), that physical welfare is
best served by the mother. More recent cases, however, have tended to dilute
this inclination, although the court continue generally to regard the mother,
all else being equal, as the more appropriate and competent caregiver. Physical
needs have been held to include medical needs, for example in Re B (A minor)
(Wardship: Medical Treatment)[22]
the English Court of Appeal ordered that an operation to save the clife of a
Down’s syndrome baby should be carried out even though the parents’ refuse to
agree on the operation.
4.5 The Tender Years Doctrine
The Tender Years
Doctrine was a legal principle in child custody jurisprudence that presumed
that young children, especially those of tender years, should be placed in the
care of their mother in cases of divorce or separation. It was based on the
belief that mothers are naturally better caregivers than fathers, particularly
for infants and young children. This doctrine was prevalent in many countries
during the 19th and early 20th centuries but has since been widely criticized
and replaced with a more gender-neutral approach to child custody. The Tender
Years Doctrine has been the subject of controversy due to its potential for
gender bias and the lack of consideration for the father's role in a child's
life. Some states have held that the burden of proof is on the father to prove
the mother to be an unfit parent to be awarded primary custody, while the
mother need not prove the father unfit in order to win custody herself, and
that this is contrary to the Constitution’s equal protection clause.[23]
The Tender Years doctrine was gradually annulled in most of the countries of
the European Union.[24]
In these countries precedence is now given to the joint custody after divorce
or the separation of the parents.[25]
Thus, we can say that at least in principle, the tender year doctrine has
become obsolete in the Northern states.[26]
Although the doctrine
has taken a backseat to pave the way for best interest of the child principle,
many empirical research has found that the doctrine of tender years continues
to influence custody decisions in practice in their judiciary.[27]
These experiences have been drastically opposed to the experience of the
custody orders in many South Asian countries, where family institutions coupled
with largely subordinated condition of women, results in mother’s right to
custody seldomly realized in practice. For example, the Haque Convention would contest
that both the personal law and statutory law in Bangladesh confer legal
guardianship to the father. The condition has not improved in practice and
mothers have to fight uphill battle to establish child custody in Bangladesh,
although the mother’s right to get custody has been established on egalitarian
principle of best interest of child.[28] Similarly, Sabreen argues that
although efforts have been made to reform the laws related to custody in
Pakistan lack of consolidated statute gives wide discretion to judiciary which
relies sometimes on the personal laws and in other cases decide in the child’s
best interests, leading to ambiguity and confusion.[29]Also, sometimes, the
application of personal laws has been more considerate to parent than the
application of secular law of the state. Consider the case of
Gohar Begum who had several illegitimate children including daughter whom she
had allowed to maternal aunt to take with her to Pakistan. When the aunt
returned to India, she refused to restore the daughter. Gohar Begum filed a
writ of habeas corpus in the Supreme Court to be granted the custody of her
less than six years old daughter. Supreme Court accepted the writ and decided
that daughter should be returned to her as under Muslim law the custody of an
illegitimate child should be with the mother, no matter who the father is.[30]
4.6 Social Welfare
When
determining what is in a child's best interests, social welfare is an essential
component to consider. The child's social welfare is an important consideration
because it takes into account the child's overall well-being, which takes into
account the child's access to resources and services that can assist them in
flourishing.[31]
This can include the child having access to essential services such as
healthcare, education, and other essential services that can support the
child's growth and development.[32]
In addition to this, social welfare program is able to take into account the
larger social environment in which the child resides. This can include
circumstances such as poverty, discrimination, and structural inequalities, all
of which have the potential to impede a child's access to resources and
opportunities.[33]
The decision-makers can better understand the challenges that a child may face
and make decisions that priorities the child's well-being and long-term success
if they take into account these broader social factors and consider how the
child may be affected by those factors. In general, social welfare is an
essential component to consider when determining what is in the best interests
of children. This is because it acknowledges the significance of fostering
children's physical, emotional, and social development and ensuring that they
have access to the resources and opportunities that are necessary for them to
be successful.
4.7 Emotional Well-being
When
determining what is in a child's best interest, it is vitally important to take
into account how they are feeling emotionally. The term "emotional
well-being" refers to a state of equilibrium and contentment in which
individuals are able to deal with the challenges of everyday life, cultivate
healthy relationships, and have positive emotional experiences.[34]
When considering what is in a child's best interest, their emotional well-being
is of utmost significance.[35]
This is due to the fact that children who struggle emotionally are more likely
to have difficulties in other areas of their lives, such as school,
relationships, and other facets of their lives. In addition to being important
in and of itself, children's emotional well-being is important because it
influences their mental health, which in turn influences their physical health
and their overall well-being. Therefore, when making decisions that are in the
best interest of a child, it is essential to take into consideration the
child's emotional needs and how any decision will impact the child's overall
emotional well-being.[36]
This may include taking into consideration aspects such as the child's
relationship with his or her parents, siblings, and other care-takers, as well
as the child's capacity to adapt to new situations and the consistency of the
child's home environment. In addition to this, it may involve soliciting the
opinion of mental health professionals, educators, and other people who have
close relationships with the child in question.
4.8 Parental Capacity
The
question of parental capacity relies on the surer footing of individual
characteristics rather than on crude gender stereotyping. The court is required
to ensure that the parent restoring to granting guardianship, custody or access
has sufficient mental and physical capacity to perform the duties envisaged.
This is not to say that the more capable person will always have access and
custody.[37]
Nor should it be suggested that parents with needs of their own, owing for
instant disabilities, should be denied custody. Where the parent, however, is
manifestly incapable of carrying out his role, the court will lean heavily
against such an order.[38]
Alternatively, the court may ask for a social report of children who are the
subject of the custody proceedings. These reports are normally carried out by
social workers and may be requested on an application by a party to the
proceedings, although the court may request such a report on its own motion. In
none of the South Asian country’s jurisdiction, there is an explicit provision
allowing for the addition of a child in custody proceedings. However, the
courts possess a residual jurisdiction to do so and furthermore, to appoint a
solicitor to act on the child’s behalf. The prospects of such occurrence are,
however, slim.
4.9 The wishes of the child
Considering
that the court must act in the best interest of the child who is subject, it
seems self-evident that where the child is of sufficient age and maturity, the
court should have regard to his or her wishes. Although, basing a decision
solely on child’s view could result in violation of the substantively
established principles of evidence law.[39]
This should especially be so where the child harbours a particular animosity
towards a particular parent. However, sufficient care is needed to ensure that
the children are not unduly influenced by a parent. In this regard, an
interview or talk by a judge in chambers can be undertaken by a trial judge.[40]
However, note that the only evidence that should be received by a trial judge
is that on oath in the presence of the parties. It is nevertheless helpful in
determining the wishes of the child. In the light of the negative effect on the
psychological well-being of a child, the courts have largely preferred to
exclude children from the legal proceedings. Other methods are used to enable a
child’s voice to be heard in custody proceedings, without requiring the child
to be physically present in the court. Such methods should include, a specially
appointed expert.[41]
4.10 Keeping sibling together
As a
general rule, the courts tend to prefer not to split up siblings, if possible,
allowing them to remain in the family home. When determining what is in a
child's best interest, it is sometimes in everyone's best interest to keep
siblings together.[42]
When siblings are split up, it can be emotionally trying for both of them
because they typically share a close bond with one another and it was built to
last. Courts and child welfare agencies may take into consideration the
importance of maintaining the relationships between siblings as one of the
factors to be weighed in order to determine what is in the best interest of the
children who are involved when making decisions regarding child custody or
placement. However, it is essential to keep in mind that keeping siblings
together may not always be either possible or in the best interest of each
individual child. This is something that should be taken into consideration.[43]
It may be necessary in certain circumstances, such as when one sibling poses a
threat to the health or safety of another, to keep the children apart from one
another.[44]
When deciding who will have custody of a child or where that child will live,
it is imperative that consideration be given to the specific requirements and
inclinations of that child.
No
individual factor can, itself be considered conclusive. The welfare of the
child must be judged by reference to all the relevant factors. It must be
remembered, however, that although the ‘welfare of the child’ is ‘the first and
paramount consideration’, it is not the only consideration to be considered by
the court.
5. Conclusion
In
conclusion, the best interest principle is a fundamental concept in child
custody law that considers the well-being of the child as the foremost
priority. The principle has evolved over time through the contributions of
various international treaties and customary law, including the UN Convention
on the Rights of the Child. Additionally, jurisdictions around the world have
developed their own elaborative determinants to establish the best interest of
the child, and the same has been the case in South Asian countries. This paper
argued that a pluralistic approach that recognizes the diversity of family
structures and dynamics is more effective in understanding and implementing
family law. By breaking free from critique-based explanation strategies,
policymakers and academics can reveal the assumptions and circumstances that
permit particular issues or concerns and their associated benefits and
drawbacks. Such an approach creates room for ethical judgments that cannot be
answered by political slogans, but rather through careful consideration of
specific issues and their effects on family dynamics.
Future
research in this field should focus on addressing the challenges that arise
from different cultural and social backgrounds that impact the application of
the best interest principle. This would require a comprehensive review of the
factors that affect the well-being of the child, as well as the varying
cultural practices and norms in different jurisdictions. Additionally, future
research can explore the impact of technological advancements on child custody
cases, especially with the increasing use of digital communication platforms in
family dynamics. Finally, policymakers need to ensure that the best interest
principle is adequately reflected in family law statutes and that there is a
robust enforcement mechanism to protect children's rights. This requires a
collaborative approach involving all stakeholders, including family members,
the legal system, and relevant government agencies. By upholding the best
interest principle, policymakers and society can ensure that children's rights
are respected and protected, thus promoting the well-being of families and
communities at large.
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[4] (Brunotte et al., 2014; Edwards,
2014) For a general reading on the subject, see,(Said,
2003; W. Said, 1993) (Gramsci, n.d.). Gramsci would call this
phenomenon a cultural hegemony of the cultural elites.
[6] According to Kennedy, the other
dichotomies of the liberal world arguably are: These distinctions are
state/society, public/private, individual/group, right/power, property/
sovereignty, contract/tort, law/policy, legislature/judiciary, objective/subjective,
reason/ fiat, freedom/coercion.
[7] For a comprehensive analysis of
the concept of legal fiction and how it operates to formulate jurisprudential
thinking and interpretation in law, see also, (Dworkin,
1986); Also, (Vining, 1987)
[16] UN Child Right Convention, 1989 Article
9:
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
2. In any proceedings pursuant to paragraph 1 of the
present article, all interested parties shall be given an opportunity to
participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child
who is separated from one or both parents to maintain personal relations and
direct contact with both parents on a regular basis, except if it is contrary
to the child's best interests.
4. Where such separation results from any action
initiated by a State Party, such as the detention, imprisonment, exile,
deportation or death (including death arising from any cause while the person
is in the custody of the State) of one or both parents or of the child, that
State Party shall, upon request, provide the parents, the child or, if
appropriate, another member of the family with the essential information
concerning the whereabouts of the absent member(s) of the family unless the
provision of the information would be detrimental to the well-being of the
child. States Parties shall further ensure that the submission of such a
request shall of itself entail no adverse consequences for the person(s)
concerned.
UN Child Right Convention, 1989 Article 10:
1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
UN Child Right Convention, 1989 Article 10:
1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
2. A child whose parents reside in different States
shall have the right to maintain on a regular basis, save in exceptional
circumstances personal relations and direct contacts with both parents. Towards
that end and in accordance with the obligation of States Parties under article
9, paragraph 1, States Parties shall respect the right of the child and his or
her parents to leave any country, including their own, and to enter their own
country. The right to leave any country shall be subject only to such
restrictions as are prescribed by law and which are necessary to protect the national
security, public order (ordre public), public health or morals or the
rights and freedoms of others and are consistent with the other rights
recognized in the present Convention.
[17] For example, in Ireland, Chapter
IV, S-31(1) of Child and Family Relationship (Amendment) Act, 2015 enlists 11
factors and circumstances that a court must consider to determine the best
interest of the child. See, electronic Irish Statute Book
(eISB), “Determining the best interest of the child, Insertion of Part V in Act
of 1964, Child and Family Relationship Act, 2015” (Office of the Attorney
General) available at: https://www.irishstatutebook.ie/eli/2015/act/9/section/63/enacted/en/html
(last visited January 6, 2023).
Similarly, although there are difference in various state laws related
to what constitute the factors for determining the best interest of the
children, the federal children’s bureau enlists five factors that covers the
different factors enlisted under various states statutes in the USA. These
factors can be found here, (Child
Welfare Information Gateway, 2020)
[18] (1969) 2 MLJ 171
[21] For example, In another UK Supreme
Court case, F.N v. C.O, I.R. 1970, IV at 311, involving an application
for custody by the father of two daughters, the impact of such an order on the
children’s intellectual welfare was considered. If granted, the order sought
would have resulted in the removal of the two children from Ireland. The judge
noted that this would have potential impact on the education and social
development of the girls.
[22] I.L.R., 1981, III at 117.
[23] for example, see King v. Vancil,
34 Illinois Appeal 3d 831 (1975).
[24]The EU can only create legislation
in areas where the treaties specifically provide it such authority. It lacks
the authority to enact legislation relating to divorce, child custody, or
parental care. This means Parliament can't pass rules governing the conditions
under which a divorce can be granted, the obligation of parents to pay child
support, or how decisions about custody and visiting rights are determined. The
EU, on the other hand, has the authority to foster judicial cooperation in
civil disputes with cross-border ramifications. It has enacted a variety of
regulations governing judicial cooperation in civil cases. These regulations
are founded on the principle of mutual recognition in general.
[25] EU nations have jurisdiction over
family law, and EU legislation on marriage, parental responsibility, and
maintenance are only applicable in cross-border disputes. Also, Brexit affects
a variety of cross-border family law concerns. When one parent lives in the EU
and the other parent lives in the UK, several parts of custody and maintenance
applications may be handled differently. The traditional foundation for
recognising UK divorces has also altered, albeit the new criteria will still
allow them to be recognised in Ireland.
[26] See, for e.g., Section 3:10 of
Principles of European Family Law Regarding Parental Responsibilities, The
Commission on European Family Law. http://ceflonline.net/wp-content/uploads/Principles-PR-English.pdf
(last visited on 13 March 2022).
[27]
for e.g., Artis, in her empirical research, found that in last few decades
custody law has shifted from maternal preference to a more egalitarian standard
of ’Best Interest of the Child’. However, her empirical survey with trial court
judges of Indiana state in US found that judges who supported tender age
doctrine awarded custody to mother for children who were infants or small. Even
judges who oppose the tender years doctrine, however, awarded an overwhelming
majority of young children to mothers, although their decisions changed in
response to the child’s age. (Artis, 2004)
[30] Gohar Begum v. Suggi alias Nazma
Begum, AIR 1960 SC 93.
Article Information
THEORIZING CUSTODY JURISPRUDENCE AND THE BEST INTEREST PRINCIPLE IN SOUTH ASIAN COUNTRIES
Authors: SYED MUJTABA ATHAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/01
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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