Reinstating the Right of Guardianship Libyan Legislation 10/1984

The law states in article M66F.C that ‘custody returns to its first owner when its cause disappears, unless the court decides otherwise, in order to establish the interests of the child’.

LHC decisions

The LHC in the Case 2/17, 1971 makes it unambiguous the difference between a mother’s failure in her role as guardian and the cancellation of this right:

To declare that the right of guardian that was taken from the mother would not return at all is against the law (the Malikiyah school of jurisprudence) because the most accepted interpretation in that school is that failure is different to cancellation, so it would not be returned in the latter, but would in the former. Some of the reasons that may cause failure in guardianship and permit its return are: illness, leaving because of an obligatory trip to Hajj, the relocation of the father or the Wali... So if the cause of guardianship failure disappears, guardianship returns to the mother and is upheld as long as the conditions for guardianship continue to be satisfied.^[371]

The LHC confirmed this opinion on another occasion when it stated that ‘If the mother of the child had surrendered guardianship of the child to the father for a reason that is later removed, she can then... [have] that child [returned] to her custody’.^[372]

Commentary

With respect to the LHC decision detailed above, if a mother rejected guardianship of her own child, the role of guardian will not return to her. However, if this right was annulled for a reason that was beyond her control, then that right will return as soon as the reason for its annulment is removed. This opinion is derived from the Malikiyah Madhhab, which is different from the other schools of Islamic jurisprudence, where no difference exists between failure and cancellation. This chapter supports the opinion advocated by the Malikiyah Madhhab, and specifically the relevant Libyan legislation which, as detailed above, has provisions for adjudicators to make ad-hoc decisions which are consistent with the ‘best interests’ principle as a primary consideration as outlined in CROC. ‘The best interests of the child’ are undoubtedly upheld with a return of the mother’s guardianship when reasons beyond her control previously eliminated this right. In the case where a mother neglected a child or chose to remarry, and the interests of the child(ren) had run second to the mother’s decision, the mother would permanently lose her right to guardianship.

J.