PIL in Bombay High Court to allow children in custody, POCSO cases to choose lawyers

The Bombay High Court on Wednesday issued notice to the Maharashtra government on a public interest litigation (PIL) petition filed by a Mumbai lawyer seeking a framework under which children involved in custody disputes and family court cases can appoint their own lawyers..The petitioner, Shraddha Dalvi, urged the court to allow children to appoint independent lawyers under the Legal Services Authorities Act, 1987, to represent them in custody battles, especially since these disputes frequently involve contentious issues like custody, visitation rights and financial support."While the parents' rights and interests are fiercely argued and defended in court, the child's voice remains unheard, and their needs, fears, and well-being are sidelined," the petition said.The PIL filed through advocate Ashley Cusher sought guidelines for creation of a Child Legal Assistance Program to protect children’s rights in custody disputes, family court cases, and cases under the Protection of Children from Sexual Offences (POCSO) Act.The petitioner highlighted the urgent need to safeguard the emotional and psychological well-being of children, who often become the 'silent sufferers' in family conflicts with their needs and voices overlooked during legal proceedings.A Bench of Chief Justice Alok Aradhe and Justice Bharati Dangre issued notice to the Registrar of Family Courts and the Maharashtra State Legal Authority. The Bench also allowed the petitioner to include the Women and Child Welfare Development Department and the Law and Judiciary Department as parties to the case as the petition involves policy decisions. .The petitioner submitted that children are often used as tools to settle parents' personal scores in matrimonial disputes, and the delays in maintenance and access cases further exacerbate their suffering."The children are the future of society and the promise of humankind, deserving full recognition of their rights. Their impressionable nature and need for guidance demand that their best interests be fiercely protected, especially in legal proceedings that can irrevocably shape their lives," the petition said. It also emphasised that in child custody cases where serious allegations like sexual assault by male relatives arise, children become the ultimate victims enduring severe mental anguish, especially when subjected to sexual assault or manipulated into making false allegations..It was submitted that appointment of Child Support Lawyers or Child's Independent Lawyers (CILs), who would mentor children through family proceedings, guiding them to make independent decisions in matters that affect their lives. The petition stated that under the Legal Services Authorities Act, children are entitled to free legal aid. The appointment of independent lawyers, according to the petition, would enable the child to express their wishes and concerns, helping them make more balanced decisions. “If, the Child Legal Assistance Scheme /Guidelines are formulated for a child and granted permission to the child to appoint an Advocate, thereby benefits children to help the child express his/her wishes/concerns without any bias or prejudice and also guides to make balanced decisions in custody disputes and litigations,” the petition said..The petitioner also underscored the importance of independent legal representation for children to protect their welfare in contentious family cases. "The concept of independent legal representation for children in such matters is crucial to safeguard their paramount welfare and ensure that their best interests are truly prioritized," it was contended. .The petition also highlighted that in 2021, the Bombay High Court had approved the formation of a panel for CILs, but the initiative got stalled due to the absence of finalized guidelines. Despite efforts by the Family Court Bar Association Mumbai and workshops held in collaboration with the Maharashtra National Law University (MNLU), the guidelines for CILs have not yet been implemented, it was pointed out..The court will hear the matter next on March 5.