Is the Right of Guardianship a Right of the Child or a Right of the Guardian?

According to article M62, guardianship is a right of the child, distinct from and above the rights of the parents. If the parents are not considered to be appropriate guardians, then custody will be transferred to the child’s unmarriageable kin.

Even though Libyan law grants the mother conditional priority as guardian, provisions are in place for the judge to grant the father custody of the child over the mother if this was viewed to be in the child’s best interests. An example where this situation may occur is when a mother leaves her home due to some disagreement with her husband. This is stated in article M63F.A: ‘if the mother leaves her husband’s house over a disagreement with her husband, she has the right for her children’s custody... that is if the court does not see that as being against the children’s interests.’^[327]

The chapter takes the position that such provisions are against Islamic law because the priority of the mother as a guardian is evident through the Holy Qur’an and Sunnah. It may be seen as consistent with CROC because choosing the guardian in this case will be according to ‘the best interests of the child’ as it will be evaluated by the court. It is not clear why Libyan law in this particular case grants the court the authority to override a mother’s preference to guardian, while in the normal prefer­ences line it does not.

LHC decisions

In determining whether the right of guardianship is that of the guardian or the child, the LHC-GJ, has clearly adopted the position, in a 1974 decision, that the right of the child will be its first consideration:

According to the Malikiyah Madhhab, guardianship is incumbent upon three rights which are: the right of the child, the right of the mother/female guardian and the right of the father/male sponsor.

Since 1971 this approach has consistently been adopted by the LHC^[329] except in its decision 15/48, 2001. In this case, the LHC accepted an application from a wife for a divorce from her husband and refused to grant her guardianship, not on the grounds of inability, but rather due to her disagreement with her husband and her consequent attempts to

blackmail him emotionally. The subsequent judgement clearly illustrates that the right of the father was preferred over the rights of the children.^[330]

Commentary

In the case presented above to the LHC (decision 13/20, 1974), the appellant (the father) requested cancellation of his daughter’s guardian­ship by her maternal grandmother because his daughter was behind in her studies at the age of eight, her life with her grandmother was not favourable and he wanted his daughter to live with him in Tripoli. He was willing to provide a house for her and her grandmother, and to pay all expenses for them if they moved to Tripoli.

After the guardian refused the father’s offer, he applied to the court in Bany Walyyed (the city in which his daughter resided in with her guardian) to grant him guardianship of his daughter. The court complied with his request.

The grandmother refused to move; she went to the court of appeal and challenged this judgement on the grounds that the father had been inconsiderate towards his daughter for eight years while he knew his daughter lived with her grandmother.

The court of appeal revoked the first judgement because the father had been silent for a long time. The LHC agreed with the court of appeal decision on the grounds that the father’s silence meant he was not sincerely concerned with the interests of his daughter. Therefore keeping the girl with her maternal grandmother was seen to be in her best interests.^[331]

Shari’ah scholars consider this principle as a precedent in all actions taken regarding a child.

Therefore, it is clear that there are three interests to be considered when dealing with guardianship: those of the child, the father and the mother. These interests are considered in both Islamic and Libyan law. Libyan law seeks to find a solution that caters to the interests of all three parties. It is believed that the child’s best interests will be met even further if the parent’s interests are in harmony or protected. However, if the decision made does not cater to all three interests, then the child’s interests will be paramount.^[333] Therefore, seeing to the interests of the child is undoubtedly consistent with the ‘best interests’ principle outlined in CROC.

The ‘best interests’ principle can also be observed in the case of the guardianship of a new-born baby. According to Libyan Legislation 10/1984, the mother is obliged to take custody and care for her newborn. Protection and care for the newborn by their mother are in ‘the best interests of the child’. Libyan Legislation 10/1984 in article M63F.B states that ‘if the subject child was a baby then it needs its mother and cannot manage without her, and the mother is obliged to be guardian’. This circumstance cannot be exploited by a woman who wishes to disconcert her baby’s father by leaving him and the baby as well, since there is an obligation set out by law to care for the baby. This opinion is taken from the jurisprudence of the Malikiyah, who encourage the mother’s obligation of guardianship in the case of a newborn. However the Hanafiyah Madhhab does not obligate the mother to accept custody unless there is no one else to do the job or if neither the father nor the child has sufficient funds.^[334]

Another example that confirms that the right of guardianship belongs to the child under Libyan Legislation 10/1984 is the case where non-Muslim guardians exist.

In summary, according to the case details presented above, Libyan Legislation 10/1984 along with LHC interpretations recognise the right of guardianship based on ‘the best interests of the child’. As illustrated in the case brought forward by the father to the Bany Walyyed local court, the judgement was based on the father’s interests and the literal meaning of the conditions of guardianship. This judgement was overruled in the LHC since ‘the best interests of the child’ would require maintaining the subject in the same environment as she had been for the past eight years.

In a situation concerning a newborn, details in Libyan legislation were presented which unambiguously obligate the mother to be guardian of a child once she has separated from the husband.^[335] Again the common theme of having the best guardian, in this case the mother, is firmly upheld as being in ‘the best interests of the child’.

Finally, if a situation arises where the mother is a non-Muslim, Libyan legislation clearly advises that custody of the child(ren) will be granted to her. In conclusion, the Bany Walyyed case coupled with the details of Libyan legislation outlining guardianship issues in the case of a newborn and a non-Muslim mother illustrate that the right of guardianship is the right of the child. This understanding is totally consistent with the ‘best interests’ principle outlined in CROC.

C.