Child custody and the best interests of children

The question of who will get the custody of a child after a divorce or separation is not merely a family concern in Bangladesh, but also a question of justice, welfare, and rights. One of the primary goals of a legal system is to ensure that every decision that concerns custody is taken in the best interest of the child.

In Bangladesh, personal laws govern child custody-related matters, and they vary depending on the religious affiliations of the parties. For the Muslims, the relevant laws are the Guardians and Wards Act of 1890, the Muslim Family Laws Ordinance of 1961, and the traditional Islamic law jurisprudence. In the cases of Hindus and Christians, the relevant considerations can be found in the framework of their personal laws, and the Guardians and Wards Act. Despite such differences, in my view, the primary concern of every system is the same, the well-being, nurture, and welfare-based upbringing of the child.

Traditional Muslim law of hizanat (custody) allows mothers to care for small children up to a certain age, ie, for sons, up to the age of seven, and for daughters, up to the age of puberty. Fathers, on their part, retain the authority of wilayah, the legal authority to make decisions on behalf of the child. However, these traditional rules have changed in practice, with courts leaning towards a more child-centric approach.

This principle was restated by the Bangladesh Supreme Court in various landmark cases. In their decision, the courts have stated that the right to custody is not vested absolutely in either of the parents but rather needs to be decided taking into account the best interest of the child. For instance, the Appellate Division in the case of Md Abu Baker Siddique v S M A Bakar found that the welfare of the child is of the utmost priority. This liberal approach focuses on the fact that the happiness, comfort, and security of the child outweigh what the traditional interpretation says.

However, there are still a few challenges in ensuring the best interest of the child in child custody cases. These problems usually arise due to protracted court cases and lack of specialised child psychological assessments. Another major problem, that most mothers face while seeking custody, is due largely to their social and economic disadvantages, particularly those who do not have an independent income.

The observation that the best interests of children must be given utmost importance in any undertakings that involve children, is confirmed by the United Nations Convention on the Rights of the Child (UNCRC) to which Bangladesh is also a party. However, there is still inadequate enforcement of this standard in the country. Bangladesh has failed to implement a child custody and welfare legislation that integrates international principles. Such a law could help reconcile the contradictory provisions of personal laws and provide a uniform standard to guide the decision in custody, guardianship and visitation related cases.

The other significant factor is to have gender-neutral custody policies. The decision concerning custody should be made based on the individual skills and devotion of the parents, and not on the stereotypical gender roles. In this respect, many jurisdictions have recognised the importance of joint custody and shared parenting, eg, the UK, and India.

Lastly, the focus of custody laws needs to extend beyond the interest of the parent and focus more directly on the general well-being of the child. Legal reforms in line with this spirit will help Bangladesh accomplish its constitutional and international legal duty to protect the rights of children.

The writer is law student, University of London.