Child Custody and Guardianship | Case Reference

The principles of international law which guide us in case of custody of children are found in the Convention on the Rights of the Child (CRC), which provides that the best interests of the child shall be a primary consideration when dealing with all matters concerning any child. The concept is not new since a similar provision exists in the Guardians and Wards Act, 1890, which provides for any order to be made under that law if the Court is satisfied that it is for the welfare of the minor that an order should be made. Hence, all courts of law are bound to keep in mind these salutary provisions of law when dealing with custody, access and other matters which impact the lives of children. [73 DLR (AD) (2021) 187]

It goes without saying that the best interests of any child requires that she/he be cared for by her/his parents. This is their innate right at birth. Article 7 of the CRC also provides that a child has the right to know and be cared for by his or her parents. Naturally, when the parents are at loggerheads, it would be the duty of the courts to ensure that the best interests if the child are protected. [73 DLR (AD) (2021) 187]

Article 12 of the CRC provides that the child should be permitted to express her/his views freely in matters affecting her/him. This concept is also not new since the Guardians and Wards Act, 1890 provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference. It is with such provisions in mind that we invariably speak to the children concerned in order to find out their views and preferences. [73 DLR (AD) (2021) 188]

With regard to enforceability of provi sions of international instruments, we may refer to the decisions in Hossain Muhammad Ershad vs Bangladesh, 2001 BLD (AD) 69 = 7 BLC (AD) 67, where it was held that Court should not ignore the international obligations, which a country undertakes by signing the instruments. His Lord ship, BB Roy Chowdhury, J said that beneficial provisions of the International instruments should be implemented as the obligation of a signatory State. [73 DLR (AD) (2021) 188]

In the case of State vs Metropolitan Police Commissioner, 60 DLR 660, it was stated that as signatory Bangladesh is obliged to implement the provisions of the CRC. Moreover, Bangladesh has since enacted the Children Act, 2013 with a view to implementing provisions of the CRC and this has been done in respect of h children in conflict or in contact with the law. [73 DLR (AD) (2021) 188]

Considering the age and gender of the children involved in the present case, we felt that, in spite of the children's reluctance to visit their mother at the place where she is staying, they should have access to their mother and vice versa. However, our endeavours were to a large extent d unsuccessful due to the fact that the mother of the I children was not living in a neutral place and the d children did not wish to go to the place where their mother was living. [73 DLR (AD) (2021) 188]

Editors’ Note

A Bangladeshi father, namely, Imran Sharif taking his two minor girl children aged about 9 and 11 years came from Japan without informing their mother with whom the father had a strained relationship. They had another girl child born in their wedlock aged about 7 years, but the father left her in her mother’s custody. A case regarding custody of the children was pending in the family Court of Japan but no prohibitive order about leaving Japan was issued by the Court. When the mother of the Children came to know that their father had taken them in Bangladesh, keeping the third child in the custody of her grandfather the mother left Japan for Bangladesh and filed a Writ Petition in the High Court Division of the Supreme Court of Bangladesh for the custody of the children. The father also filed a case before a competent Family Court of Bangladesh for custody of the Children which was pending at the time of adjudication of this petition. The High Court Division ordered that the children will remain in their father’s custody and the mother shall have right to visit their children. The High Court Division further ordered that the father will have to pay a certain amount of money to the mother for coming Bangladesh and visiting her children after interval of a certain period. Against the order the mother filed this petition. The Appellate Division considering the relevant international and domestic law and decision of the apex court of this sub-continent in similar matter held that in such case the object of the Court would be to see how the best interest of the children is protected. It also held that the appropriate forum for deciding the dispute of custody of the children is the Family Court before which a case is already pending ordered the Family Court to complete the trial of the case within three months. It also set aside the order of the High Court Division and placed the children in the custody of their mother with a visitation right of their father until the suit in family court is disposed of. It also clarified that judgment in this petition will have no bearing upon the decision to be reached at by the learned Assistant Judge/Senior Assistant Judge while disposing of the family suit.

Enforceability of provisions of international instruments in Bangladesh: With regard to enforceability of provisions of international instruments, we may refer to the decisions in Hossain Muhammad Ershad V. Bangladesh and others, reported in 21 BLD(AD) 69, where it was held that “the court should not ignore the international obligations which the country undertakes by signing the instruments.” ...(Para 23)

The court must look for the best interests of the minors: The court must look for the best interests of the minors and the petitioner in the present case being the mother of these two minor daughters left each and every effort for their best interest. It was decided in the case Abu Bakar Siddique vs SMA Bakar reported in 38 DLR(AD)106 that “welfare of the child would be best served if his custody is given to a person who is entitled to such custody.” ...(Para 27)

It is the Family Court who has the jurisdiction to settle the question of custody of a minor: Considering the aforesaid facts and circumstances we are of the view that removal of the detainees from the custody of their mother petitioner is without lawful authority and they are being held in the custody of respondent No.5 in an unlawful manner and the High Court Division passed the judgment beyond the scope of law which required to be interfered. In this case only Family Court has the jurisdiction to settle the question of custody of a minor. The Family Court will look into the cases referred by the parties and come to a finding in whose custody the welfare of the detainees will be better protected. ...(Para 28)   16 SCOB [2022] AD 107

Custody of Minor- Considering the facts and circumstances- especially the facts that minor S.A.M.M. Zohaibuddin has already attained the age of almost 7 years and he is now residing along with his ailing elder brother in his father's house and is being taken good care of by his father, grandfather and grandmother, we are inclined to allow the prayer of the leave petitioner to retain the custody of his minor son S.A.M.M. Zohaibuddin till disposal of Family Suit. S.A.M.M. Mahbubuddin =VS= Laila Fatema, [3 LM (AD) 468]