INTRODUCTION

Early attempts of international law in identifying the rights of children can be traced to the 1924 Geneva Declaration of the Rights of the Child^[286] and the 1959 Declaration of the Rights of the Child.^[287] However, it was the adoption of the Convention on the Rights of the Child (CROC)^[288] by the United Nations General Assembly on 20 November 1989 that constituted a major development in the identification of and support for children’s rights by the international community.^[289] The adoption of CROC was followed one year later (29-30 September 1990) by the first World Summit for Children, during which the World Declaration on the Survival, Protection and Development of Children was signed and a Plan of Action adopted for its implementation in the 1990s.^[290] World leaders made a commitment to the protection of children’s rights to guarantee their survival and development.

One of the abstract concepts, which has been established in both international and national legal systems, is ‘the best interests of the child’.^[292] Today, this concept is embedded in international treaties such as the Convention on the Rights of the Child (CROC), where an example of the use of this principle can be found in article 3.^{[293] [294] This same principal is also emphasised within the Hague Convention on Protection of Children and Co-operation in Respect of International Adoption, article 1.9}

It is also part of the African Charter on the Rights and Welfare of the Child, which was ratified by Libya and which provides that ‘in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration’.^[295]

As a result, modern domestic legal systems adopted the ‘best interests’ concept into their jurisdictions.^[296] Consequently, Acts relating to child welfare were altered accordingly and obligations were imposed on courts to make judgements in accordance with ‘the best interests of the child’.

In terms of Libya’s participation in international conventions regarding the rights of the child, Libya signed the Convention on the Rights of the Child (CROC) without any reservations on 15 April 1993.

Libya’s willingness to participate in international and supranational laws on a number of broad-ranging issues related to the rights of children is indicated in its being a signatory to additional protocols and instru­ments. Libya ratified the African Charter on the Rights and Welfare of the Child on 23 September 2000. Libya also ratified two optional protocols to the Convention on the Rights of the Child, namely the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (on 18 June 2004), and the Optional Protocol on the Involvement of Children in Armed Conflict (on 29 October 2004).

The primary concern raised by the Committee on the Rights of the Child (CRC) in its 2003 response to Libya's Second Periodic Report forms the basis of this chapter. In its response, the CRC concluded that Libya does not ‘fully incorporate in legislation and practice, article 3 of the Convention, including in the area of custody of children'.^[297] The perceived discrepancy between the Libyan Government’s interpretation and consequent implementation of the ‘best interests of the child’ principle, and the CRC’s expectation of Libya’s fulfilment as a State party to the Convention on the Rights of the Child (CROC) is at the heart of the concerns of this chapter.

This chapter aims to analyse critically Libyan Legislation 10/1984 and cases adjudicated by the Libyan High Court - Guardianship Jurisdiction (LHC-GJ) in order to determine whether the CRC’s concerns are well founded. In order to achieve this goal, a systematic approach will be undertaken. At the outset, detailing the foundations of the Libyan political and legal system will be necessary. This will provide the reader with the necessary context for understanding Libyan law and its influences.

Prior to performing an analysis of cases adjudicated by the LHC-GJ, the relevant articles in the Law of Marriage and Divorce Rules and their Effects (10/1984) will be outlined. This will provide important context for understanding the basis on which decisions are made.

Three factors have determined the selection of cases for analysis in this chapter. Firstly, the cases have been adjudicated by the LHC-GJ, which is the ultimate authority in interpreting Libyan laws. Secondly, cases have been selected to ensure coverage of a broad range of issues within the guardianship jurisdiction. Finally, the analysis focuses on cases that resulted in authoritative interpretations of relevant articles within the Legislation 10/1984, in cases that were subsequently adjudicated on the basis of the same principles.

Applying these factors has resulted in the selection of over 60 cases decided in the 30-year period between 1971 and 2001. The starting date for this time frame is significant, given that the structure of Libyan Legislation 10/1984 has been influenced by Shari’ah, which was intro­duced to the Libyan system in the early 1970s. This will make it possible to comment on whether the Libyan legal system is truly influenced by its culture, being Islam, and in particular the interpretation of Islam by the Malikiyah school of jurisprudence.

II.