Can The State Remove Custody From Both Parents In Extreme Cases?

 In Pakistan, child custody matters are primarily governed by the Guardians and Wards Act, 1890, Islamic personal laws, and the overarching principle of the "welfare of the minor." While most custody disputes involve one parent seeking custody under Child Custody Laws In Pakistan against the other, there are extreme situations where both parents may be deemed unfit or incapable of caring for their child. In such rare but serious cases, the state does have mechanisms to intervene and remove custody from both parents to protect the child’s welfare.

The Principle of Welfare of the Minor

The cornerstone of Pakistani custody law is the welfare of the child. Every decision made by the court, whether in favor of the mother, father, or any other guardian, is guided by what is best for the minor’s physical, emotional, educational, and moral development. This principle applies even more stringently in cases where both parents are considered incapable of fulfilling their parental responsibilities.

Legal Basis for State Intervention

Although there is no explicit statutory provision that directly authorizes the state to automatically take custody from both parents, the Guardians and Wards Act, 1890 provides a broad framework that allows the courts to appoint any person or institution as guardian if it is deemed to be in the best interest of the child.

Under Section 7 of the Act, the court can appoint a guardian if:

• The minor has no natural guardian.

• The natural guardian is unfit or incapable.

• The appointment is necessary for the welfare of the minor.

In such circumstances, even though the biological parents are alive, the court can determine that neither parent is suitable to have custody due to factors such as:

• Severe neglect or abuse.

• Drug or alcohol addiction.

• Mental illness or psychological instability.

• Criminal behavior or incarceration.

• Abandonment or desertion.

• Exposure of the child to dangerous or immoral environments.

When such extreme situations arise, the court may appoint a relative, a responsible third party, or a state institution as the child’s guardian.

The Role of State Institutions

While Pakistan does not have a centralized child welfare agency like some Western countries, several state and non-governmental organizations (NGOs) may become involved in protecting the rights of children by Child Custody Laws In Pakistan in extreme cases:

• Child Protection and Welfare Bureaus (CPWB): Operating in several provinces, particularly in Punjab, these bureaus are empowered to rescue, shelter, and protect children who are abandoned, abused, or at risk.

• Social Welfare Departments: Provincial social welfare departments may provide temporary or long-term care solutions for vulnerable children.

• Non-Governmental Organizations (NGOs): Various child welfare NGOs collaborate with the state to provide shelter, education, and care for children in crisis.

In cases where both parents are found unfit, the court may transfer custody to one of these institutions or designate a foster arrangement.

Removal of Parental Rights

While Pakistani law does not commonly use the term “termination of parental rights” as is seen in some other legal systems, courts have the power to restrict or entirely remove parental custody if it endangers the child's welfare. However, termination of parental rights is not permanent in all cases; parents may petition the court in the future to regain custody if they can demonstrate rehabilitation or improved circumstances.

Procedural Safeguards

Given the seriousness of removing custody from both parents, Pakistani courts exercise great caution before taking such steps. The process usually involves:

• Thorough investigation of the child’s circumstances.

• Input from child welfare officers, psychologists, and social workers.

• Testimonies from relatives and witnesses.

• Medical or psychiatric evaluations if necessary.

The courts aim to ensure that the child is placed in a safe, stable, and nurturing environment, minimizing further trauma or disruption.

Recent Cases and Judicial Trends

There have been instances where courts in Pakistan have ordered state custody for children whose parents were involved in serious criminal activities, child trafficking, or severe neglect. In some high-profile cases, children have been placed in the care of relatives or state-run child protection centers.

The judiciary has increasingly recognized the importance of child welfare as a standalone right, not merely an extension of parental rights. This evolving judicial approach allows for state intervention in extreme cases where the child’s safety and development are seriously threatened.

Conclusion

In extreme cases where both parents are deemed unfit, Pakistani courts like Hamza & Hamza Law Associates do have the authority to remove custody from both parents to safeguard the welfare of the child. While such cases are rare and handled with utmost care, the legal framework under the Guardians and Wards Act, 1890, along with the involvement of state institutions and child protection bodies, enables the state to intervene when necessary. The paramount concern remains the best interest and welfare of the minor, ensuring their safety, development, and well-being in any custody determination.