CONCLUSION

This chapter has clearly identified the LHC as the supreme authority when implementing Libyan legislation and, most importantly, upholding the ‘best interests of the child’ principle.

Also unequivocally established is that the ‘best interests of the child’ principle is embedded in Legislation 10/1984. Examples of articles proving this exact point include: article M62F.C, nominating a guardian after the first four potential guardians in the guardianship hierarchy; article M66F.C, reinstating guardianship if in ‘the best interests of the child’; and article M63F.A, that the mother will always be granted guardianship except in the case where it is not in ‘the best interests of the child’. These articles all aim to protect ‘the best interests of the child’; however, an explicit discrete article detailing the ‘best interests’ principle does not exist. This may have formed the basis of the concerns expressed by the CRC.

The success of the LHC has been proven in cases relating to guardianship matters where ‘the best interests of the child’ has been the primary consideration in the decision making process. It has been so successful that in one particular case detailed in this chapter, the LHC utilised its discretion in interpreting the relevant legislation to uphold the ‘best interests’ principle instead of the legislation’s literal application, which would have otherwise prevented the interests of the child from being protected.

Libyan Legislation 10/1984 has clearly defined conditions that need to be met by a prospective guardian. These conditions provide the basic foundations in ensuring ‘the best interests of the child’. If any condition is not upheld, then the prospective guardian will forfeit their right to be a guardian, even if that guardian is the mother of the child.

In further highlighting the role of the LHC when dealing with guardianship issues, it has been made clearly evident that flexibility has been utilised to guarantee the child’s best interests. Libyan Legislation 10/1984 explicitly provides the court with leverage when determining the next appropriate carer, provided that the conditions of guardianship have been upheld. The flexibility only exists after the first four prospective guardians defined by the guardianship hierarchy. A case that is repre­sentative of such an adjudication made by the High Court was presented in this chapter.

It has been demonstrated, after presenting the relevant articles in Legislation 10/1984 and relevant cases, that the official interpretation of the law is influenced by the local culture, specifically the Malikiyah ‘brand’ of Islam. In handing down its decisions, the LHC has made frequent references to the Malikiyah interpretations, supporting the chapter statement that the interpretation of international human rights in municipal legal systems will inevitably, understandably and legitimately be affected by local cultures.

4.