Definition and the Ordering of Guardians Definition of the child

In accordance with article 1 of CROC, article 3 of Legislation 17/1992, which is an amendment to the Libyan Civil Code, defines a child as follows:

A child is a person who has not attained the age of majority.

(a) A child incapable of discernment is a child under seven years of age;

(b) A child capable of discernment is a child who has attained the age of seven years.^[306]

Article 9 of the same legislation stipulates that ‘The age of majority is 18 years’. Article 17 also stipulates that ‘A minor is a person who has not attained the age of majority or who is insane or simpleminded’.

This definition is the Libyan legislature’s response to CROC. Prior to this amendment, the Libyan Civil Code had set the age of majority at 21 years. Under this article, it is clear that the Libyan legislature acted in opposition to its own culture because the age of majority under Islamic law is the age of puberty, which is around the age of 15. This attitude can be viewed positively in the context of the ‘best interests’ principle, since the age extension from 15 to 18 years will inevitably provide further protection to the individual.

Definition of guardianship

Libya’s Law of Marriage and Divorce Rules and their Effects (Legisla­tion 10/1984) addresses all aspects of guardianship. Article M62F.A states:

(c) ustody is a shelter for the child to be nurtured, and cared for, and looked after from their birth until the boy is a man and the girl gets married and sexually interacts with her husband, and all of this is without opposing the right of the sponsor.

Article M62F.B notes that ‘during marriage the right of the child’s custody is for both parents’. However if separation occurs, then a woman’s right to guardianship remains as a wife, in the three-month waiting period after a divorce is declared, and any time after a divorce.^[307]

Article M62F.C states that ‘the court does not have to be restricted by the order that was mentioned in the last paragraph (except for the child’s mother and her mother and the child’s father and his mother) and that is in order to fulfil the needs of the child’.

In 1971, in accordance with the definition of guardianship, the LHC observed that ‘Legally (according to Islamic law) guardianship is rearing the child and taking care of him/her and meeting all of the child’s needs until a certain age’.^[308]

The central legal issue in this case was to clarify the relationship between the rights of the child and the rights of their parents. It created a very significant legal precedent in how these rights can be evaluated. In Case 1/18, 1971, the court elaborated:

according to Islamic law experts, there are three rights: the right of the child being guarded, the right of the mother or female guardian, and the right of the father or the sponsor; and if all these rights coincide and were capable of being in agreement then the child’s rights should be accommodated, and if these rights contradict each other then the right of the child comes first because the aim of guardianship is to benefit, teach, educate and care for the child.^[309]

Three years later the court, in decision 2/21, 1974, confirmed its understanding of the legal principles governing custody and guardian­ship. The LHC reiterated this as follows:

The aim of custody is to provide a caring environment for the child and to be able to meet the child’s needs. The provision of such an environment is mainly assigned to a woman, because a woman typically has more sympathy for the child and is more capable of meeting the child’s needs. That is why the mother is given first priority when assigning the custody of the child, as long as there are no impediments to that assignment.^[310]

In decision 3/37, 1990, the LHC explained the application of these principles when clearly differentiating between guardianship and kafalah (sponsorship). In this particular case, the father of a girl, who left his daughter in the care of his brother before travelling overseas, did not give his brother any right as a guardian but rather as a sponsor for a limited time:

the child staying with the appellant for a period of time with consent from her father...

Prior to Legislation 10/1984 coming into force, the LHC reaffirmed that, according to the Malikiyah Madhhab,^[312] precedence to the role of guardian is as follows: the mother, maternal grandmother, maternal full aunt, maternal half aunt, maternal aunt of the child’s mother, paternal aunt of the child’s mother, child’s paternal grandmother then the paternal great grandmother. The kinships of the child also have priority over foreigners, while relatives from the mother’s side have priority over those on the father’s side.^[313]

The LHC has confirmed this on many occasions. For example, in one of its decisions, the LHC stated:

Guardianship is the period of nurturing the child through which the availabil­ity of a woman who has a right to raise the child in according to the Malikiyah Madhhab, the right of the mother has priority to that of the father and then to his blood relative women as well. So, the measures that were used to consider are that the mother has priority over the father and the mother’s kinship has priority over the father’s such that the mother of the mother, even if she chose not to accept, has the priority in custody after the child’s mother and before the mother of the father. The foundation of guardianship should be compassion, and bloodline kinships are consistent with compassion, so the mother and her parents are the most compassionate towards the child.^[314]

Commentary

Libyan Legislation 10/1984 considers guardianship as a right for the child above that of the parents. If the parents are married and living together, it is the responsibility of both the parents to take on the role of guardianship and as long as they are settled together as a social unit (family) they can cooperate and share the caring duty that is given to them.^[315]

Libyan Legislation 10/1984 relies upon Ibn Rushd’s opinion relating to the issue of guardianship, which states that the majority of scholars agree that if the father divorces the mother while the child is still at a young age, then the role of guardian is assigned to the mother. Such opinion is based on the teachings of the Prophet Muhammad (PBUH) when he said that ‘whosoever separates a mother from her child Allah shall separate him from his beloved on judgment day’.^[316] Furthermore, Ibn Rushd added, ‘the ability to transfer guardianship from the mother to someone other than the father is unproven in any way’.^[317]

If the circumstance should arise that the mother, father or any of the female blood relatives cannot take on the role and responsibility of guardian, the male relatives are then considered in the following order.

In all Islamic schools of thought, the mother of a child has the responsibility of care and control of the child for the first few years of the child’s life. This is based on the widespread belief that it is beneficial for a small child to remain with its mother. Care in the early years is termed ‘Hadanah’. The age at which Hadanah ceases varies between the schools of thought and the gender of the child. For example, in the Malikiyah Madhhab, ‘the right of Hadanah in relation to a daughter lasts until she is married’.^[319]

As quoted above, article M62F.C provides that the court does not have to be restricted by the order that was mentioned in article M62F.A when making decisions on guardianship to fulfil the needs of the child.^[320] It is appropriate to emphasise that Libyan law does not take a completely rigid approach in terms of priority and does consider the specific circumstances of the children in question except in the first four prospective guardians. This is not inconsistent with Islamic law because there is no strong evidence to apply the priority of these four over the others except in the case of the mother.

This highlights the importance that the LHC places on the character and lifestyle of the guardian of the child. The court aims to place children in the care of adults whom it deems will care, maintain and cater for ‘the best interests of the child’.

Under the interpretations advocated by the Malikiyah Madhhab, preferences to the role of guardian continue well beyond the first four outlined above. As mentioned earlier, the priority to guardian will be initially assigned to the child’s mother and then to her mother. The father is considered after the maternal grandmother according to Legislation 10/1984. This opinion comes from Hanabilah Madhhab and Ibn Rushd from the Malikiyah Madhhab. If the grandmother and the father are not able to take on this duty or the maternal grandmother did not request it, guardianship will then be assigned to the paternal grandmother.

After this order of preference, the law provides the adjudicator with full authority to nominate from the available relatives, with preference given to the closest female relative over relatives that are male. Accord­ing to the Malikiyah Madhhab, the first female in line after the mother and maternal grandmother is the mother’s sister but only if she is her full sister (that is, they have the same mother and father). This condition is based on the teaching of the Prophet Muhammad (PBUH) when he said: ‘the mother’s sister is like a mother.’^[321] If the aunt is not capable of taking on this role, then the great-aunt of the child will be considered for this role and responsibility.^[322]

In summary, this ordering which presents the jurisprudence advocated by the Malikiyah Madhhab is only a guide.

B.