Key Cases

In one of the key cases (2/17, 1971), the LHC declared the conditions of granting guardianship of a child for a man or woman and how these conditions must be in accord with the interests of the child:

According to Islamic legislation, guardianship is meeting the needs of the child in terms of providing food, clothes,...

Case 2/17, 1971 was decided upon by the LHC after decisions in a number of lower courts prior to it being presented to the LHC for final adjudication. The court of first instance in Benghazi had previously granted guardianship to the mother of two sons after she and her husband divorced. The husband moved from Benghazi to Darnah, a city 180 miles (300 km) east of Benghazi. Once he had moved, he appealed the custody decision on the condition that, as the father, he can request guardianship of the children if he moves away permanently to a location that is considered to be a long distance from the female guardian.

The mother appealed this decision to the court in the city of Al-Baydah on the following grounds. Firstly, the father did not inform her about the move or ask her if she wanted to relocate. Secondly, the father’s relocation was made under a false pretence and was just a ploy to take the children away from their mother. She also added that the condition that the female guardian must be not far from the wali (male guardian) - for their protection and easy access - was not a valid argument due to modern transportation and technology, and given that people are able to move thousands of miles in a few hours. In a further argument made to advance her cause, the mother mentioned that she had already moved to a city called Al-Baydah which was only 60 miles (100 km) west of Darnah, so the father’s access to the children was made easier. The court rejected the mother’s appeal because it decided that she must live in the same city as her ex-husband. However, the court did grant her visitation rights of only once a month for the whole day at her ex-husband’s expense.

Following her initial failure, the mother brought a new case before the Benghazi court of first instance claiming that her ex-husband had moved the children from Darnah to Alexandria in Egypt and left them there with his new wife before he moved back to Tripoli alone. The father claimed that this was in their best interests because they would receive better education. The court responded to this statement as not being true since both Libya and Egypt have the same education system. A report was submitted to the court, authored by the Libyan Counsel-General in Alexandria, Egypt. This report declared that the children were struggling,

and that their health and emotional status were not good. Unfortunately, the court still refused the mother’s request, declaring that she had already lost guardianship and could not regain it. The mother finally took her case to the LHC and based her argument on the following four grounds:

1.

2. The first decision of the court was made on the grounds that the father relocated his children to Egypt on the basis of enhancing their level of education, a claim which had already been rejected by the appeals court in the city of Al-Baydah. Furthermore, when the children were taken away from their mother, the father placed them in a school in Darnah where they were examined. Their examin­ation results were good, which indicated that their education thus far had been fine.

3. Guardianship is supposed to be granted on the basis of the best interests of the child, but unfortunately this principle had not been upheld in this case. The mother claimed that the father had demonstrated neglect, and as a consequence should not be deemed to be a suitable guardian.

4. The first decision was made on the grounds that when the father had moved to Darnah, the mother refused to move with him. This was not true as he had not informed her of his relocation. Therefore, because of this untruth, he had not met the condition of a suitable guardian.

On the grounds detailed above, the LHC decided in favour of the mother and granted her guardianship status over the children. The main points in the judgement detailed the importance of a child’s need for compassion from both parents along with the continued monitoring of guardianship conditions, in particular the issue of neglect. As a consequence, the children returned to Benghazi to live with their mother.^[337]

This case highlights a number of issues.

This case is significant on two levels. Firstly, the lower courts had applied the law on a literal basis. Such an approach resulted in the upholding of guardianship conditions, which was viewed as a narrow- sighted approach. The LHC, on the other hand, made its judgement on the complete context on which this case was presented. By this, the LHC had taken into consideration first and foremost ‘the best interests of the child’ from an Islamic perspective.

Another reason for the significance of this case is that even though the case judgement was handed down in 1971, the LHC had based its decision on the ‘best interests’ principle at the heart of CROC, which was institutionalised many years later. Therefore, the view taken by this chapter is in total agreement with the decision made by the LHC. In its judgement, the LHC was unambiguous as to the reason why such a decision was sought, and more importantly highlighted the need to uphold ‘the best interests of the child’. In particular, the LHC decision supports the main argument of this chapter that the culture affects the interpretation of the ‘best interests’ principle.

In Case 1/28, 1982, the LHC emphasised guardianship eligibility conditions:

According to the Imam Malik school of jurisprudence, the conditions of guardianship include: the person eligible for guardianship being conservative religiously and loyal, and if the person lacks those conditions that person can no longer be considered eligible.^[338]

In 1985, the LHC had been consistent in stressing the necessity of guardianship conditions in its decision to Case 3/31, 1985:

The main purpose of guardianship is the protection of the child...

In Case (3/31, 1985),^[340] the appellant (the girl’s father) requested that the court abort the mother’s custody of their 13-year-old daughter. The main argument for the appellant’s request was that the daughter in question was tending her maternal grandfather’s sheep on her own, at a consider­able distance from the mother’s residence. Her father also claimed that she had failed her exams at school and he argued that this was due to neglect. It was argued that a teenage girl being consistently away from home during the day might result in her involving herself in acts of indecency or in being abused. In handing down its decision, the court decided to approve the request and abort the mother’s guardianship of the girl.

When the mother appealed the decision, the court of appeal reinstated the mother’s custody of the girl. The reason for the decision was the court’s belief that the child should not be deprived of her mother’s love and care. However, the appeals court failed to see that the father was seeking protection for his daughter. The decision of the appeals court contradicted Islamic law because one of the purposes of guardianship in Islam is to protect the child from any type of harm.^[341] This case illustrates that a court’s implementation of guardianship conditions can have a negative effect on a child. This chapter rejects the appeals court opinion, since ‘the best interests of the child’ would be best served by her remaining in an environment under continuous monitoring and not alone at a location far from any sort of supervision.

E.