Discretion of the High Court Libyan Legislation 10/1984

Article M63F.C states: ‘[I]f the one, who is eligible for guardianship, refused or he/she no longer become eligible, the right of guardianship will be transferred to the next person on the guardianship hierarchy.

LHC decisions

In Case 2/11, 1974 the LHC referred to the Court of First Instance in Tripoli which has heard the case of a plaintiff to abort his sister-in-law’s right to custody of her children (these being the children of the plaintiff’s deceased brother). The plaintiff based his case on the mother’s re­marriage to a man who was considered ‘a stranger’^[366] to the children. On this basis, the court ruled in favour of the plaintiff, consequently handing the plaintiff guardianship of the children.

The mother of the children then appealed this case in the Tripoli Court of Appeal, claiming that she had remarried on the condition that the children live with her and that the new husband pay their expenses and maintenance; as a result, this agreement was a condition recorded in the marriage contract. This marriage condition was explicitly sought by the mother because she did not have any female kin who could have been a prospective guardian and would therefore be granted guardianship. The mother also claimed that the incumbent guardian could not be trusted with the children. To back up her claim, she reported that he took control of the compensation money paid by the driver who accidentally hit and killed her late husband. The mother added that it was better for the children to stay with her being married than to stay with their uncle’s wife who was not related to them at all.^[367]

However, in his own defence, the incumbent guardian rejected the claim that he received any payment related to his brother’s death and that such an argument was used to undermine his case.

The uncle took the case further to the LHC. At this point, it should be noted that one of the conditions of a female guardian stated by Malikiyah Madhhab and confirmed later by Legislation 10/1984 is that marrying kin that is marriageable to the child will result in cancelling the guardianship status in the case of a female guardian. Therefore, it was on this basis - the mother being married to a ‘stranger’ - that this case was presented to the LHC. The appellant also claimed that it was incorrect to claim that he, the uncle, was untrustworthy as he was still paying the mother 20 dinars (£30) per month as child maintenance, and had helped the mother and the children to receive help from charities. It was also claimed that if the mother was truly committed to her children’s care and well-being, she would not have followed her instincts to seek marriage to a stranger.^[369]

The important facts presented to the LHC in this case are as follows:

1. The mother’s husband, even though being a stranger to the children, declared that he was willing to care for the children and pay their expenses. The uncle argued that this was seen as wrong as it is in conflict with what is known in the Malikiyah school of jurispru­dence, which holds that the mother’s right to custody is aborted as soon as she consummates a marriage to a stranger to the children. The school’s philosophy holds that the mother will be preoccupied with her husband, and that her husband will probably not tolerate her children, and so it is not right to leave the children with someone who will not tolerate or be good to them.

2. The untrustworthiness of the appellant was determined based on the claims made by witnesses before the court in relation to the appellant actually receiving money from the killer of the father of the children in question.

Commentary

In relation to guardianship issues, this is a case of major significance. Most noteworthy in this case is the conflict generated by the court of first instance in attempting to achieve ‘the best interests of the child’ through the literal implementation of the law. What is meant by this is that the court of first instance sought to uphold a guardianship condition (that is, marriage to a stranger) in its belief that ‘the best interests of the child’ would be protected.

The judgement handed down by the court of appeal reflected the belief that the interests of the children had not been protected. The appeal court revoked the decision made by the court of first instance on the basis that applying the law would ultimately protect the interests of the child(ren). Even though marriage to a stranger would usually cause a woman to forfeit her right to guardianship, in this particular case, the court of appeal believed the interests of the children would surely be protected by granting their mother guardianship because their stepfather had accepted them and was willing to pay their living expenses.

Even though the LHC upheld the court of appeal’s decision in favour of the mother, it did so on different grounds. It stated that the children should be left with their mother not because the court believed their interests would be better protected, but rather because the next eligible guardian (in this case the uncle) forfeited his right as guardian due to his lack of trustworthiness. This case clearly shows that there is conflict between the ‘best interests’ principle, which under CROC was a primary consideration, and the Malikiyah understanding on this issue, which later contributed to the formation of Libyan Legislation 10/1984. According to both the Malikiyah interpretation of Islam and Libyan legislation, a mother’s right to guardianship would be forfeited if she remarries a stranger.

On a related issue, if a person who has the right to guardianship but backs down from this right, or is not able to fulfil the obligated duties, then the right of custody will be granted to whoever is nominated by the court.^[370] The judge will choose the most appropriate person depending on the merits of the case. This decision will still be in accordance with the Malikiyah jurisprudence.

86

In light of the case details mentioned above, the discretion of the LHC to adjudicate on guardianship issues is not to be used separately - that is, apart from Libyan legislation - but rather as a tool to reinforce the aims and objectives of the relevant law. It is clear that the LHC utilised discretion in order to protect ‘the best interests of the child’.

I.