PLD 2023 Islamabad 83
Custody of child --- Restriction on parents --- Pre - condition --- Poor economic condition of father --- Petitioner was father of minor girl who was deprived of custody and guardianship of his minor daughter on the plea that respondent who was his mother - in - law had better economic condition than him --- Validity --- Father could not be declared unfit to serve as guardian of his own child whom he had brought into the world , merely because he was poor or uneducated or that his relatives or relatives of his former spouses were better educated or financial better off or possessed better accommodation --- Only relevant consideration was bond of love and affection between the parent and the child and willingness of the parent to look after wellbeing of the child - No evidence , material or basis for Family Court were available to determine that petitioner was unfit to act as a guardian for the person or property of his own daughter --- To appoint another guardian in his stead while he was alive and well and eager and willing to act as a guardian of his own daughter , who was already deprived of her natural mother , was in breach of provisions of Ss . 19 ( b ) & 41 ( 1 ) ( e ) of Guardians and Wards Act , 1890 --- No third party , caregiver or guardian could be appointed a guardian in the stead of a biological parent of the child while biological parent was alive and not found unfit by Family Court to act as guardian of his or her own child --- High Court directed Chief Commissioner in his capacity as Provincial Government for purposes of Islamabad Capital Territory to put together panel of duly qualified professional psychologists and psychiatrists who could be consulted by Family Courts seized of guardianship matters --- High Court further directed that Chief Commissioner , Islamabad Capital Territory would ensure that such professionals were compensated for the services that they provide to Family Courts in assessing needs of children subject to guardianship decisions --- High Court set aside judgment and decrees passed by two Courts below and declared petitioner as sole guardian of his minor daughter ---
Guardian other than parents --- Court , duty of --- Principle --- Where Family Court appoints a guardian who is not biological parent of child in place of his or her biological parent , the Court is under continuing obligation to oversee welfare of the child and to ensure that emotional , physiological and psychological wellbeing of child is being catered for in the guardianship arrangement made by the Court --- Such arrangement has to be reviewed on an ongoing basis at least once in a year to ensure that guardianship decision rendered by the Court continues to serve as a source of welfare for the child --- In reaching a custody and guardianship decision , Court must rely on professional assessment regarding emotional , physiological and psychological needs of child --- For such assessment Courts concerned are not trained to make independently .
Disentitling parents from guardianship --- Principle --- Test for declaring that a third party , caregiver or guardian must be appointed for welfare of child while one or both of his or her biological parents are still alive is that provided under S. 16 of Islamabad Capital Territory Child Protection Act , 2018 i.e. that the child should be at the risk of significant harm , abuse or exploitation if he or she were to remain in the custody of the parent , or in a situation where the child has been abandoned by the living parent or parents and is deemed to be an unattended child as defined in S. 2 ( 1 ) ( v ) of the Islamabad Capital Territory Child Protection Act .
Custody of child --- Restriction on parents --- Pre - condition --- Poor economic condition of father --- Petitioner was father of minor girl who was deprived of custody and guardianship of his minor daughter on the plea that respondent who was his mother - in - law had better economic condition than him --- Validity --- Father could not be declared unfit to serve as guardian of his own child whom he had brought into the world , merely because he was poor or uneducated or that his relatives or relatives of his former spouses were better educated or financial better off or possessed better accommodation --- Only relevant consideration was bond of love and affection between the parent and the child and willingness of the parent to look after wellbeing of the child - No evidence , material or basis for Family Court were available to determine that petitioner was unfit to act as a guardian for the person or property of his own daughter --- To appoint another guardian in his stead while he was alive and well and eager and willing to act as a guardian of his own daughter , who was already deprived of her natural mother , was in breach of provisions of Ss . 19 ( b ) & 41 ( 1 ) ( e ) of Guardians and Wards Act , 1890 --- No third party , caregiver or guardian could be appointed a guardian in the stead of a biological parent of the child while biological parent was alive and not found unfit by Family Court to act as guardian of his or her own child --- High Court directed Chief Commissioner in his capacity as Provincial Government for purposes of Islamabad Capital Territory to put together panel of duly qualified professional psychologists and psychiatrists who could be consulted by Family Courts seized of guardianship matters --- High Court further directed that Chief Commissioner , Islamabad Capital Territory would ensure that such professionals were compensated for the services that they provide to Family Courts in assessing needs of children subject to guardianship decisions --- High Court set aside judgment and decrees passed by two Courts below and declared petitioner as sole guardian of his minor daughter ---
Guardian other than parents --- Court , duty of --- Principle --- Where Family Court appoints a guardian who is not biological parent of child in place of his or her biological parent , the Court is under continuing obligation to oversee welfare of the child and to ensure that emotional , physiological and psychological wellbeing of child is being catered for in the guardianship arrangement made by the Court --- Such arrangement has to be reviewed on an ongoing basis at least once in a year to ensure that guardianship decision rendered by the Court continues to serve as a source of welfare for the child --- In reaching a custody and guardianship decision , Court must rely on professional assessment regarding emotional , physiological and psychological needs of child --- For such assessment Courts concerned are not trained to make independently .
Disentitling parents from guardianship --- Principle --- Test for declaring that a third party , caregiver or guardian must be appointed for welfare of child while one or both of his or her biological parents are still alive is that provided under S. 16 of Islamabad Capital Territory Child Protection Act , 2018 i.e. that the child should be at the risk of significant harm , abuse or exploitation if he or she were to remain in the custody of the parent , or in a situation where the child has been abandoned by the living parent or parents and is deemed to be an unattended child as defined in S. 2 ( 1 ) ( v ) of the Islamabad Capital Territory Child Protection Act .
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