Visitation Rights Libyan Legislation 10/1984

Article M68 of Legislation 10/1984 states that ‘if the child’s Wali and the guardian disagreed about child visitation rights, the judge has to decide the time and place for such visits, and the matter should be given priority for immediate judgement'.

LHC decisions

In Case 5/41, 1994 the LHC declared that if a dispute occurs between male and female guardians about child visitation, the judge has full authority to decide the time and place of visitation in a manner that removes obstacles on the part of the father and to protect the interests of the child and his/her mother. The LHC stated:

According to the law, if the guardian and the Wali cannot agree on how to organise visits to see the child, then the judge will determine the time, location and duration of such visits. That ruling should be enforced by the power of the law, which ensures that the father of the child will not have any further problems in visiting the child, and further still, the interests of the child and the mother would have been protected.^[365]

Commentary

Visitation rights have always been a point of contention between oppos­ing parties with relation to guardianship. The cause of the contention may be an attempt by one party to seek revenge against another. To settle such disputes, article M68, as stated above, declares that ‘the judge has to decide the time and place for such visits, and the matter should be given priority for immediate judgement’. Therefore, the court is the only body that can decide the time and place of regular visits. A speedy decision is encouraged in order to prevent further damage and aggravation between the respective parties. The importance of a rapid decision cannot be underestimated because the duties that hinge upon kinship, and which Islam obligates the faithful to observe, strongly encourage unmarriage- able kin visitation rights to children and return visits from them. This is especially important when the parents of the child are deceased, lost, kidnapped, in jail, held captive and so on. It is the right of the child’s kinships, who are replacing the parents, to visit the child and make sure their needs are being catered for. In light of the above, this chapter encourages a proactive approach by both parties, in being willing to grant visitation rights. Embedded in Libyan culture, visitation rights are extremely important from an Islamic perspective. Therefore, the concept of visitation rights is in total agreement with the ‘best interests’ principle outlined in CROC.

H.