Upholding Guardianship Libyan Legislation 10/1984

Article M67F.B states that ‘moving with the child inside the country will be allowed by a guardian if it does not harm the child’s interests’. Article M67F.C states that:

The female guardian cannot relocate with the child outside Libya except in the case where permission has been sought from the male sponsor (Wali).

LHC decisions

In cases presented to the LHC concerning the issue relating to the place of guardianship, decisions handed down by the court have differed prior to and after the introduction of Legislation 10/1984. This legislation, unlike a strict Malikiyah approach, allowed for flexibility in judging cases relating to this matter. Prior to Legislation 10/1984, a strict 72-mile (116 km) radius was enforced on the female guardian’s residence to that of the wali. This 72-mile maximum was believed to be in the child’s best interests because it was feasible for both male and female guardians to share supervision of the child. With the introduction of Legislation 10/1984, movement by the female guardian to any location within Libya would not result in losing her right to guardianship. However, relocation outside Libya would require the relevant court to decide on whether the female guardian would lose her right to guardianship to maintain ‘the best interests of the child’. Such an approach is consistent with the argument advocated by this chapter because it is this flexibility granted to the relevant court which guarantees that ‘the best interests of the child’ are upheld. This movement from a strict framework to a more relaxed set of guidelines allows Libyan law in relation to guardianship to be more consistent with the ‘best interests’ principle set out in CROC.

In one of its decisions prior to the introduction of Legislation 10/1984, the LHC in Case 3/10, 1974 decided:

If the Wali moved to a location that is further than seventy two miles from the location of the child on a permanent basis, then this move obliges the relocation of the female guardian and the child that is under her custody to the location of the Wali in order to obtain the right care and supervision for the child, so if she did move, the child would stay with her and if she did not, her right in custody would be cancelled.^[360]

Similarly, in Case 12/24, 1978, which was also decided upon prior to the advent of Legislation 10/1984, the LHC declared:

It is widely known in the Imam Malik School of jurisprudence...

Unlike the above two decisions, Case 6/37, 1990 was presented to the LHC after Legislation 10/1984 was introduced. In its decision, the LHC refused to cancel the mother’s guardianship because she travelled outside Libya temporarily to seek treatment for her son while leaving her other children with a friend.^[361]

Commentary

Prior to the introduction of Legislation 10/1984, the interpretation provided by the Malikiyah Madhhab on the issue of relocation was a dominant factor. Since its introduction, the legislation has provided the judge with flexibility to rule whether a parent can relocate with the child if it is perceived not to be harmful and therefore in ‘the best interests of the child’. In the opinion of this chapter’s author, the judge has applied the following criteria or guidelines to establish ‘the best interests of the child’ in handing down the respective judgements.

One of the conditions of custody is trustworthiness. If the guardian wishes to relocate, the guardian may not be allowed to relocate with the child unless they have shown that the relocation is permanent and that the guardian is trustworthy enough to care for the child.

The law has a different perception to relocation within and outside Libya. If the female guardian decides to relocate permanently with a child outside the country, she will lose custody if such relocation is performed without permission from the wali.

The mother has the right to see and visit her child even if she has lost her right to guardianship.

In cases concerning relocation, Libyan law has been modified to be more flexible in its approach. The opinion adopted by this chapter is that Libyan law goes a step further in maintaining the ‘best interests’ principle as stipulated in CROC, even though conflict may arise with the opinions advocated by the Malikiyah Madhhab. This does not mean that such flexibility is in conflict with Islam itself, since this issue of flexibility and differences in opinion is widely accepted within Islamic jurisprudence.

Regarding relocation of a female guardian, Libyan Legislation 10/1984 does not discriminate on the basis of who the female guardian is. It provides that relocation within the country of Libya, whether temporary or permanent, does not affect guardianship. This comes from the Zahiriyah Madhhab and is highlighted in the following statement by Ibn Hazm: ‘the mother has the first right to her son’s and daughter’s custody until they both reach maturity, whether the father has left the country the mother is living in or not, and similarly with the mother.’^[362]

This view is against the Malikiyah and Shafi’iyah Madhhab because they do not allow the female guardian to move with the child to any place without the permission of the wali on the basis that ‘the best interests of the child’ are best served by having a male guardian close by, because of his obligated duty of care and maintenance of the child. It is considered to be difficult for the wali to meet his obligations towards the child if they are distant from each other.^[363] Although the Malikiyah Madhhab is the founding source of Legislation 10/1984, an alternate opinion from another Madhhab was used as a reference because it was viewed as being the better option in meeting ‘the best interests of the child’.

According to Libyan law, the following three interests need to be considered during guardian relocation: those of the child, the father and the mother. If the interests conflict with each other, then the priority is the child’s interests, followed by those of the parents.^[364] It is important to recognise the role of the wali as decision maker and maintainer of the child, so when guardian relocation occurs, it is important that the wali is still able to fulfil his duties.

Legislation 10/1984 clearly forbids the female guardian from travelling with the child outside the country except with the wall's permission. The preference is that permission should be sought early in order to prevent any type of conflict between the guardians.

However, what can be done if the wali refuses to grant permission? The answer is that the justice system is the exclusive authority for adjudication. The main focus in such a case should be the evidence presented by the female guardian when justifying the child's relocation. A secondary concern of the justice system is to determine why the wali refused to grant permission when it was requested. If relocation outside the country goes ahead without permission, this will result in the forfeit of the female guardian's right to guardianship, even if permanent settlement was not the intention.

This chapter has made it clear that with regards to relocation issues, Libyan law has adopted a flexible approach in decision making. Flexibil­ity is in no way a cause of conflict with Islamic law, but rather reflects the differences in opinion which Islamic jurisprudence allows for. Such an approach provides the respective adjudicator with full authority to assess the circumstances surrounding relocation to ensure that ‘the best interests of the child’ are being protected. Even though ‘the best interests of the child' were being met prior to the introduction of Legislation 10/1984, the flexibility that is now inherent in the legislation ensures more than ever the implementation of Libya’s obligations under CROC and in particular the ‘best interests' principle.

G.