Other Related Cases

The following LHC decisions demonstrate the court’s approach in upholding guardianship conditions with room for flexibility to ensure ‘the best interests of the child’. In Case 24/20, 1974, the LHC declared:

The marriage of the divorced woman to a man...

Furthermore, the LHC decided in Case 7/20, 1974:

If a person has the right to custody and did not request it, that right will be cancelled if they were aware of their eligibility; but if they did not know and they did not ask for it, their right will not be eliminated regardless of the period of their silence.^[343]

In the above two cases, it is clear that the court, even though emphasising the importance in upholding guardianship conditions, has allowed these conditions to run secondary in situations where the guarded child is not negatively affected and ‘the best interests of the child’ are protected.

Unlike the above grouping of cases, the following group of LHC decisions have maintained other guardianship conditions as being non- negotiable when present in order to meet ‘the best interests of the child’. If such conditions fail, the guarded child(ren) are perceived by the court to be endangered physically, emotionally or in any other undisclosed manner. Therefore such conditions need to be abided by on a strict basis.

Case 14/23, 1977,^[344] presented before the LHC, highlights a case where an important prospective guardian condition, namely health, had formed the basis of argument by a father to gain custody over his children.

It should be noted that the grandmother, in her own defence, made mention of the fact that her two daughters were also living with her and the guarded children. In light of the law mentioned above relating to the guardian requiring assistance when they are not fully capable of fulfilling the child’s needs, the court would have still made a judgement upholding the status quo on the basis of the aunts’ presence.

In the Case 14/24, 1978, the LHC again expressed these conditions in one of its decisions when it stated:

The whole purpose of guardianship is to care for the child, and part of that is protecting the child from corruption. Some of the conditions that must be satisfied for the establishment of custody is that the guardian must be mentally mature, be able to meet the needs of the child, ensure the safety of the child (especially for girls), be religiously faithful, and be rational. If the guardian was to be a man, then he must make available a woman to care for the child, for example, his wife or a nanny.^[346]

Therefore, the above cases unambiguously illustrate the inflexible stance taken by the LHC in cases where failure of prospective guardians to meet the required conditions is deemed to place the guarded child(ren) in some form of danger.

The LHC in the following two case decisions had been consistent in its judgement on issues related to prospective guardians being silent for more than a year. The aim of enforcing this guardian condition is to guarantee the stability of the guarded child(ren) with respect to location, social environment and, most importantly, the guardian themselves. By achieving these goals, ‘the best interests of the child’ are best achieved.

Case 4/28, 1982 presented to the LHC details of a father’s appeal against a ruling which granted custody of his children to the maternal grandmother. The case was based on the claim that the grandmother was too busy to care for the children. The court of appeal was not satisfied that a carer was provided for the children while the grandmother was at work, so the judge upheld the appeal and granted custody of the children to the father.^[347]

As a consequence, the case was then appealed by the grandmother, who claimed that the ruling was against the law. She argued that the court of appeals made its ruling based on the petition of the father without considering the investigation that was performed by the court that heard the original case. In the original case, the judge had provided the father with two alternatives:

1. to increase the alimony payment that the father was making to allow the grandmother to leave her job, which required her to be away for half of every working day; or

2. to start paying the original amount that was being previously paid to the mother of the children.

Both choices were rejected by the father. The court of appeals had aborted the right of the grandmother to custody of the children despite having no legal reason for such action. The court of appeals had relied solely on the fact that the grandmother was working in a job that she needed desperately without considering the fact that there was someone else caring for the children while the grandmother was at work. That person was the grandmother’s maid.

The final decision handed down was in favour of the grandmother. Having two aunts living in the same house satisfied the LHC that there was enough care for the children while the grandmother was fulfilling her employment duties.

In light of the High Court’s decision, a number of points are note­worthy. Firstly, the grandmother was and continues to be the guardian. The presence of the aunts does not eliminate or degrade the grand­mother’s role or importance in any way. However, it was viewed by the court as assistance to the guardian’s role. Another significant factor is that being assigned guardian does not grant the ownership over the role of guardian itself. Therefore, the role is not transferable at the discretion of the guardian.

The decision made by the LHC is supported by this chapter. It should be emphasised that if the LHC had taken a strict approach to determine whether the guardian upheld guardianship conditions, the LHC could have judged in favour of the father’s case on the sole basis of the grandmother’s absence from the children due to work commitments. However, the LHC had adopted the flexible approach to decision making as outlined in Libyan law, which upholds the Malikiyah version of Islam. The judgement considered the children’s current family environment context and made a decision based on the broader picture. Even though CROC was adopted 12 years later, this case is a clear example that the ‘best interests’ principle as defined by CROC was already embedded in Libyan law because of its inherent Islamic culture.

Therefore, as has been illustrated in the above cases, guardianship under Libyan law has been developed with the guarded child(ren) as its primary concern, such that the child is to be served and cared for, and requires that the guardian be capable of taking care of and protecting the child.

Guardian conditions are based not on emotions but rather on rational grounds. For example if a mother harms her child(ren), she will lose custody of the child even if they are emotionally attached to her. Removing a child in this situation may be difficult emotionally; however, it is perceived as being in ‘the best interests of the child’. A similar judgement was handed down by the LHC in Case 3/31, 1985 where a teenage girl had been seen tending to her maternal grandfather’s sheep away from her guardian mother. The LHC disagreed with the appeals court decision to return the child to the mother on the grounds of emotionally being attached to her. In its judgement, the LHC emphasised that the well-being of the child, specifically her safety, determined what was in the child’s best interests rather than the emotional attachment to her mother.^[349]

Another example where the LHC was stringent in upholding the conditions of guardianship was in Case 14/23, 1977. If the guardian or anyone else in the household is proven to be diagnosed with a transmit­table disease that could harm the guarded child, the right of the guardian will be cancelled even if the child’s needs were being met. If the guardian has a medical condition that is deemed to be non-infectious and not harmful to the child in any way, then guardianship will remain with the allocated female family member.^[350]

According to CROC, the purpose of guardianship is to nurture, care for and to meet the child’s needs for a specified period of time. In Case 7/28, 1982 a grandmother had been granted custody of both her daughter’s children. The uncle of the girls’ father appealed, arguing that the grandmother’s commitment to working by night and sleeping during the day exposed the guarded children to abnormal conditions. The judge rejected the appeal.

According to Libyan Legislation 10/1984, the court has a responsibil­ity to ensure that the guardianship conditions are being fulfilled. One of these conditions is that a prospective guardian needs to be capable of fulfilling the guardianship duties. In light of this fact, this chapter maintains that in Case 7/28, 1982 the court failed to confirm the claim made by the plaintiff that the assisting aunts did not fulfil an important guardian condition - that is, capability. The LHC played a passive role by making a judgement on the evidence presented. It should have been proactive in seeking whether the claims made by the plaintiff were true. It can be concluded that in this case, ‘the best interests of the child’ as understood by Libyan Legislation 10/1984 were not adequately addressed.

Case 14/24, 1978 presented to the LHC established that the plaintiff (mother) had been working in a government department in order to help her disabled mother meet living expenses. The plaintiff would leave the guarded child along with another daughter, who was 19 years old, during work hours. It was proven, through the testimony of an expert physician, that the mental capacity of the mentioned daughter was that of a 7-year-old child. It was also proven that she was ineligible to be a carer for the child even for a short period of time. In addition, the plaintiff did not deny her mother’s disability. This disabled grandmother could not cope with the burden of supervising the child in question as well as the mentally immature 19-year-old girl.^[352] It was necessary, in the interests of the child, that the mother care for them. As her work commitments harmed the child’s interests, consequentially, the mother’s guardianship was made void because it was argued that ‘the best interests of the child’ were not being catered for under this arrangement. The ruling to abort her guardianship is seen as proper under the law.^[353]

However, through its powers, the LHC should have activated the Social Security Legislation;^[354] this would have solved the financial needs of the mother and provided her with some sort of income to enable her to stay at home to take care of her dependents. The decision made here can be seen as being harmful to both parties involved. Both the mother and children would suffer emotionally. Furthermore, although it was based on logic, the court failed to look at the personal interests of those involved.

In Case 1/18, 1971 the LHC confirmed that, ‘legally, if the guardian of the child was a man, he must provide a woman to nurse the child, such as a wife, a woman who is of kin, or a nanny’.^[355] The decision handed down in Case 14/24, 1978 confirms this point. An appellant declared in a submission to the court that the defendant, her ex-husband, did not have a female carer to take care of the children and therefore was ineligible for custody. However, it became clear that the father had remarried and was therefore eligible to regain custody because the assisting female carer was now available.^[356] Therefore, the court ensured that ‘the best interests of the child’ were catered for because it made certain that there was a female carer with the father. In this case the second wife would care for the children under the supervision of the father. This case shows one of the Islamic cultural influences in guardianship aspects: in the case of a male guardian, ‘the best interests of the child’ are met when there is a female assisting the male guardian.

The first paragraph of article 66 from the Legislation 10/1984 consid­ers the failure of all or some of the conditions in section 65 as causing the termination of the custody. Case 19/42, 1996 highlights the import­ance that the LHC places on investigating the conditions of the eligible guardian. The original ruling gave the defendant the right to guardianship of her children, without establishing whether the right conditions for custody existed.^[357] This is seen as not being fair to the plaintiff because the court should have investigated both sides of the case and made sure that all necessary steps had been taken. The LHC’s ruling that this decision was wrong represents an attempt on the part of the LHC to ensure that ‘the best interests of the child’ are taken into consideration, by insisting that the court should check the conditions of the guardian properly. Furthermore, the right of guardianship belongs to the child and not the guardian; for this reason, the court should investigate whether a potential guardian is suitable.

As mentioned earlier, the law states in article M66F.C that ‘guardian­ship returns to its first owner when... cause [for its initial loss] disappears, unless the court decided the opposite in order to establish the interests of the child’. This means that if a reason arises that makes the guardian no longer eligible or renders them unable to fulfil the require­ments of guardianship, then the role of guardian will become void. However, once the cause disappears, the right to guardianship will return and the claim for guardianship can be made once again. This is to ensure that ‘the best interests of the child’ are maintained and that the child is under the care of the best guardian.

For example, if a mother falls sick during guardianship and can no longer care and maintain the child, the child will be taken from her care and placed with another suitable guardian (such as the father). Once she has regained full health, she becomes eligible for guardianship once again and will gain the right to guardianship again once/if she makes her claim.

The Malikiyah Madhhab distinguishes between voidable and unvoid- able conditions.^[358] However, Libyan Legislation 10/1984 does not follow this interpretation and is therefore perceived to rule in contrast to the Malikiyah version of Islam because it believes this opinion is contrary to ‘the best interests of the child’. Under article M66F.C, if a woman marries a ‘stranger’, she will lose her right to guardianship. However, if she were to divorce this person, her right to guardianship would return. The Malikiyah Madhhab does not take this approach and believes that because the choice was made to marry while being aware that as a consequence her guardianship would become void, hence the right to guardianship does not return if divorce is sought. From the perspective of the Malikiyah, only on the basis of unavoidable conditions, such as sickness or necessary travel, can the right to guardianship be regained.

Commentary

In cases of parental separation/divorce, the father is obliged to maintain his children during their stay with their mother. No one can remove a child from the custody of their parents unless circumstances demand otherwise. In such a case, the parents or guardians should agree upon a person(s) who they believe can cater for ‘the best interests of the child’ until a court can adjudicate on the matter. A person who is an eligible guardian must be proactive in requesting custody of the child. Placing the onus on prospective guardians ensures that the child is not neglected for any length of time and that there is someone caring for them at all times.

During the course of litigation for guardianship of the child(ren), the primary concern should always be ‘the best interests of the child’. Such litigation should not be perceived as just a formality determining who the next in line on the guardianship hierarchy is, but rather an in-depth examination of the next appropriate person deemed to be responsible and capable of taking care of the child and meeting their needs. Furthermore, an investigation of how the child’s best interests can be met should be the overriding concern of any guardianship litigation. This approach was exemplified by the court cases presented to LHC which have been detailed above.

These cases highlight the LHC decisions based on factors that include desirable characteristics of the guardian, a safe place for the child(ren) to reside and the time in which the claim was made for guardianship. These factors illustrate how ‘the best interests of the child’ were the main concerns for the LHC in its rulings.

In Case 7/30, 1985, the grandmother, who was the most eligible guardian for the child according to the guardianship hierarchy, had her right to guardianship dismissed because she waited over one year to make her claim. As has been mentioned above, silence over a period of one year according to Islamic law and Libyan Legislation 10/1984 is grounds for making void the right to guardianship. It was the view of the LHC that it would be in the child’s best interests to keep the child with the grandfather as he had taken care of the child for the whole period of time and taken care of the child’s needs, enrolling her in school and caring for her well-being. It would have been unfavourable for the child to be removed from under the care of the grandfather, given that her environment had showed signs of stability.^[359]

It is clear that the LHC decisions detailed under the sub-heading ‘Guardianship conditions’ have consistently been handed down with ‘the best interests of the child’ as the primary concern. Such a statement can be substantiated because the ‘best interests of the child’ has been a recurring theme in decisions handed down over a period of 30 years by the LHC.

In conclusion, in accordance with guardianship conditions already discussed, Libyan Legislation 10/1984 and its official interpretation through LHC decisions, the cases presented above are clearly consistent with CROC in terms of making ‘the best interests of the child’ a primary consideration.

F.