Philosophy of Education and Educational Philosophy
Abdul azeez maruf olayemi guadianship-comparative family law
1. AHMAD IBRAHIM KULLIYYAH OF LAWS
International Islamic University, Malaysia
THE IMPORTANCE OF GUARDIANSHIP IN FAMILY LAW:
{How Far is it Relevant in the Modern Society}
A Comparative Study of Family Law
By:
Abdul Azeez Maruf Olayemi
2. The concept of Guardianship
- Guardianship is the position of being legally responsible for some one.
(Macmillan Eng. Dic. P632)
- A legal guardian is a person who has the legal authority (and the
corresponding duty) to care for the personal and property
interests of another person, called a ward. Usually, a person has
the status of guardian because the ward is incapable of caring for
his or her own interests due to infancy, incapacity, or disability.
Most countries and states have laws that provide that the parents
of a minor child are the legal guardians of that child, and that the
parents can designate who shall become the child's legal
guardian in the event of their death..
•
3. • Bases of Guardianship in Family Law:
– Islamic Law:
– ‘Mothers shall give suck to their offspring for the two whole years if the father desires to complete
the term. But he shall bear the cost of their food and clothing on equitable terms. ‘ Qur’an 2: verse
233
‘‘Child here is your father and here is your mother, make a choice between the two as to whom you
prefer’ then the son took hold of his mother’s hand and they dispersed’’ Sunan Abu Daud, Kitabut-
Talaq, (Vol. 2) 617 (Interest of The Child).
– International Law:
CEDAW, Article 16(1)(f) states that: The same rights and responsibilities with regard to
guardianship, warship trusteeship and adoption of children, or similar institutions where these
concepts exist in national legislation in all cases the interest of the children shall be paramount;
– ‘Article 16 of the Universal Declaration of Human Rights’ declares that:
"Men and women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution.
4. Types of Guardianship:
1. In term of Personality of the guardian:
- Guardianship of the parents:
- Guardianship of person other than the parents:
2. In term of the duty of the guardian:
- Guardianship on Person / Child (Al-Wilayatu ‘ala nafs):
- Guardianship on Property (Al-Wilayatu ‘ala mal):
- Guardian Ad Litem (Legal Representative):
5. Guardianship of the parents:
Islamic Law (Shari’ah)
All the Islamic Schools of Law agree that, the father of a child is his / her natural guardian
and that the right of custody of such child belongs to the mother base on Qur’an 2: Verse 233
and the aforementioned Hadit /Sunan Abu Daud, Kitabu Talaq (vol. 2) 617) interalia, from
the day of birth of the child. They, however defer on the duration of the custodian and that
guardianship due to their disagreement of the meaning of Rushd (Majority) in Q4:V6as
follows:
. Hanafiyah:
that the custodianship of a mother ends when the child
attains the age of seven for males and nine for females.
. Malikiyah:
that the custodianship of a mother ends when the child
attains the puberty (ihtilam) for males and until the marriage of a female.
. Shafi’yahh & Hanabilah:
that the period for both male and female child shall end when they attain
the age of seven or eight.
6. Practice and developments in Hanafyah Jurisdiction:
Pakistan:
.Given the interest of the minor preference:
In the case of Atia Waris v. Sultan Ahmad Khan 1959 PLD (WP) Lah
205.Mahmud J stated:
In considering the welfare the court must presume initially that the minor’s
welfare lies in given custody according to the dictates of the rules of personal
law, but if circumstance clearly point that his or her welfare lies elsewhere or
that it would be against his or her interest the court must act in
accordance with the welfare of the minor, keeping in mind any positive prohibition of the
person law.’’
Thus, the court gave custody of the minor to the paternal grandparent instead
of the maternal grandparent considering the best interest of the child
based on ijtihad.
Egypt:
Statutes: Decree 25 of 1926 amendment Decree 100 of 1985 declares in the
article 20 that: the right of a mother to the custody of her child shall end when
the child attains ten years old for male and twelve years for female and that a
Court may decide otherwise due to the best interest of the child.
7. Practices and developments in Malikiyah Jurisdiction:
- Morocco:
Enhancing the Protection of Children’s Rights:
Child custody : Taking into account the child’s interests, the draft further innovates
by giving the woman the possibility to retain custody of her child, under certain
conditions, even upon remarrying or moving out of the area where her husband
lives. She may also regain custody if the reason (voluntary or otherwise) which
caused her to lose this right disappears. (Under current legislation, the woman
irrevocably loses child custody in the above conditions)
- Sudan:
Child Custody and Guardianship: divorced mother has custody over boys until 7
years and girls until 9 years; custody may be extended if proved to be in best
interests of ward; until the male reaches puberty and the female consummates her
marriage.. Court has some discretion to allow a woman who re-marries a man not
within the prohibited degrees of relationship to the child (i.e., a mahram) to retain
custody if the interests of the ward so demand. The custody of a woman of a
different religion to the father ends when the child is five years old, or earlier in it is
feared that the child will take another religion. Child support considered father's duty
until girl is married and until boy is of age able to earn his own living. .
8. Practices and developments in Shafi’iyyah Jurisdiction:
- Malaysia:
LR stipulates the applicability of Shariah (Shafi’iyah) to
Malaysian Muslims, thus father his the natural guardian of his child.
The Guardianship of Infants (Amendment) Act 1999 amended
the 1961 Act to grant mothers equal guardianship rights as
fathers.
Can the converted father convert his children to Islam without the
permission of the mother?
Answer:
Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis
Ugama Islam Sabah [2003] 5 MLJ 106
9. Continue…….
- Indonesia:
. Development:
Under Article 1 (5) of Perpu 2/2007 a guardian is defined as a
person or institution having the authority to act as the guardian of a
child. Issues on guardianship within this Perpu focus on the
management of property.
Institution here means Baitul-Mal (Central Bank or Public Trustee)
10. Practice and Development in Hanabilah
Countries
- United Arab Emirate:
UAE Personal Law No . 28 /2005, Article
217. stipulates that: A father may appoint
a guardian of male or female for his
minor child…….
11. Guardianship in Mula’anah Case:
- Definition of Mula’anah:
Mula’anah is the situation whereby a husband will deny being
responsible for the pregnancy of his wife and the court will
separate them and order the naming of the child after his
mother. Qur’an 291: Verse 6 - 9
- Guardianship in Mula’anah:
Although the majority of scholars agree that the right of
guardianship belongs to the father while the custodianship
belongs to the mother. But in case of mula.a the
guardianship and custodianship right also belongs to the
mother.
12. Guardianship of Parents under Common Law:
Evolution:
In the past, parents are considered the legitimi tutores of
their children. Children were, from birth, subject to the
guardianship of their father. Their father was regarded as
their “natural guardian. By virtue of that guardianship the
father exercised paternal power in relation to his child
and his child’s property. The mother was excluded from
the role of guardian while the father lived, although she
was eligible for appointment as guardian by her husband
after his death. Children born out of wedlock had no
legal guardians.
13. Development……….
- Prior and due to the stipulation of CEDAW: Article
16(1)(f) which states that: The same rights and
responsibilities with regard to guardianship, warship
trusteeship and adoption of children, or similar
institutions where these concepts exist in national
legislation in all cases the interest of the children shall be
paramount;
- Thus CEDAW gives equal right to both parent in regard
to the guardianship of their child.
14. Practice and Development in Common Law Countries
- South Africa:
NO. 192 OF 1993: GUARDIANSHIP ACT, 1993. (2) Whenever both a father and
mother have guardianship of a minor child of their marriage, each one
of them is competent, subject to any order of a competent court to the
contrary. to exercise independently and without the consent of the
other any right or power or to carry out any duty arising from such
guardianship: Provided that, unless a competent court orders
otherwise, the consent of both parents shall be necessary in respect
of-
- Scotland:
The Children (Scotland) Act 1995, excludes the guardianship of parents from
the definition of parental rights. A parent, therefore will no longer be the ‘’the
natural guardian’’ of his or her child. The parental role is now defined in the
terms of parental responsibilities and parental rights.
15. Cont….
- UK:
• The Children's Act 1989, Schedule 15. States that:
• A parent with parental responsibility may appoint a
guardian. Broadly speaking, a mother has parental
responsibility irrespective of her marital status. A father
has automatic parental responsibility if he has been
married to the mother at any time later than the date of
conception. An unmarried father may acquire parental
responsibility by court order or agreement with the Childs
mother. An appointment may be made by Last Will or in
writing (section 5 (5)).
16. Guardianship of Persons other than the parent
Guardianship of persons other than the parents are of
two types namely:
1. Testamentary Guardianship – Al-Wasiyyu:
This is the guardian the father or bother of the parent or the
mother may appoint as part of the will for his / her child prior to
his or her death.
2. Legal Guardianship:
Base on the best interest of the child, the court may
appoint a guardian in lieu of his / her parents or if there
is default in the guardian appointed by the parents
prior to their death.
17. Testamentary Guardianship
According to the effect of the new rule that parents are
no longer the “natural guardians” of their children, in the
countries where it is applied, those appointed to be
guardians after their death will take on the role of
substitute parents. Accordingly, a testamentary guardian
will have the power to appoint a person to take his place
in the event of his death and he will have the same
parental responsibilities and parental rights in relation to
the child as the parent had.
(CEDAW Article 16(1)(f).
18. Testamentary Guardianship in Islamic Law
Shariah permitted parents to appoint a testamentary
guardian of their choice for their wards or children this is
contained Qur’an 2: Verse: 180 (CEDAW Article
16(1)(f).
َإ ُ نِ يَ يَيَ ارْ إ ُ ارْ نِ يَ يَ يَ يَ يَ يَ يَ إ ُ إ ُ ارْ يَ ارْ إ ُ نِ يَ يَ يَ يَ ارْ ً ارْ يَ نِ ةَّ إ ُ نِ ارْ يَ نِ يَ ارْ نِ يَ يَ نِ يَ نِ ارْ يَ ارْ إ ُ نِ يَ ًاّ يَيَ ارْ إ ُ ةَّ نِ ي
كتب عليكم إذا حضار أحدكم الموت إ ن تارك خيارا الوصية للوالدين فوالقارْاربين بًالمعارفوف حقًا عل ى المتقين
[180: ]البقارة
It has been decreed that whenever you are at the verge of death you
should appoint the best testamentary guardian from the parents and the
relatives…………
However, the testamentary guardian must not be a heir to the ward.
19. Legal Guardianship in the Common
Law
• In the common law countries, the court has the power to
appoint a guardian a child, base on the best interest of the
child. Example of this is the stipulation of the Law Reform
(Parent and Child) (Scotland) Act 1986.
• The court can only do so if it could be shown to be in the
interests of the child that the applicant should have the custody
of the child .
• In some countries, it is required that before being appointed a
legal guardian, the applicant should be in a position to exercise
all parental responsibilities and rights, including having the
child living with him or otherwise regulating the child’s
residence.
20. Duties and Responsiblities of a
Guardian
• It is the duty of the guardian to safeguard the child’s:
1. Health including given consent to surgical , medical or
dental treatment.
2. Educational upbringing.
3. Welfare and development
4. Protection and management of his property
5. Act as the minors legal representative
21. Guardianship of the Child outside wedlock
• In the case the right of custody and guardianship belongs to
the mother solely although the putative father may also have
the guardianship through court, if he can prove to make a
superior arrangement for the children or by the agreement of
the mother but this right is revocable
• There has been development on this issue in the common
law countries. For example, the Law Reform (Parent and
Child) (Scotland) Act 1986, s 1, provides for legal equalities
to children whether or not there parents are or have been
married to each other. S.2, confers parental right (including
the right of custody) on the mother whether or not she is or
has been married to the child’s father and on the father if he
is married to the child’s mother or was married to her at the
time of the child’s conception or subsequently.
22. Guardianship of Child of Same-Sex Marriage
There is fluctuation in the custody of the minor child in same
sex-marriage:
1. After the breakup of a same-sex civil union In 2004, a Virginia
trial judge granted sole custody of Isabella Miller-Jenkins, to
Lisa Miller, her biological mother, citing the Virginia law.
2. In 2006, a Virginia appeals court reversed the trial court’s
decision. Given the right of custody to both parents.
3. In 2007, an appeal of the Virginia appellate decision was
dismissed last year by the Virginia Supreme Court.
23. Types of Guardianship in Accordance to Duties:
• Guardianship on person:
• Guardianship over person simply means guardianship over a minor or
infant (any body below the age of 18). The guardianship includes the
moral, spiritual and educational upbringing of such infant.
• Guardianship on Property:
• Guardianship over property connotes the protection and management of
the property of an infant as well as an incapacitated adult ,
• Guardian Ad Litem:
Guardians ad litem are often appointed in divorce cases or in parenting
time disputes to represent the interests of the minor children. Guardians
ad litem are also used in other family matters involving grandparents
obtaining custody or grand parenting time as well as protection orders
where one parent is attempting to get an order against another party with
a legal connection to the child. The kinds of people appointed as a
guardian ad litem vary by state, ranging from volunteers to social workers
to regular attorneys to others with the appropriate qualifications. The two
divorcing parents are usually responsible for paying the fees of the
guardian ad litem, even though the guardian ad litem is not responsible to
them at all.
24. Condition of a guardian or custodianship
1. Must be a Islam.
2. Mother must marry person other than
Maharam.
3. Must be a major.
4. Must be sane.
25. Recent Developments in Guardianship System:
• In the modern day a lot of innovations and development has
been brought to the guardianship system across the globe,
some of the example of the new systems include the
followings:
- Conservatorship:
• A conservator is responsible for making decisions about the
financial affairs of the ward. The court appoints the
conservator. The ward’s financial affairs include assets—such
as stocks, bonds, bank accounts, cash and real estate—for
which the conservator has assumed responsibility. Generally,
the conservator controls all of the ward’s income and property,
takes care of paying bills, and handles other financial matters.
26. Continue……
- COMMUNITY GUARDIANSHIP (AUSTRALIA):
Many adults in Western Australia have limited capacity to
make decisions. These may include decisions about where
they live, who cares for them or what medical treatment is
appropriate. Volunteers with the Public Advocate’s
Community Guardianship Program will help some of these
people.
27. Continue…….
- Standby Guardianship:
One of the more recent approaches to transferring custody is facilitated
through standby guardian laws. Many States developed these laws to
address specifically the needs of families living with HIV or other
disabling conditions and terminal illnesses who desire to plan a legally
secure future for their children.
Approximately 21 States and the District of Columbia have made statutory
provisions for standby guardianships. Most standby guardian laws share
these provisions:
28. Cont…
• Permanent Guardianships (UK)
• These are guardianships designed for children who
have been in state custody and which are difficult to
terminate. For example, Oregon has a permanent
guardianship status that may only be granted by the
juvenile court after it is proven that it is in the best
interest of the child that the birth parent should never
have physical custody of the child. A birth parent is
prohibited from petitioning the court to terminate this
permanent guardianship once it is granted. When
assessing their options, caregivers should be aware of
whether permanent guardianship exists, and how it is
defined, in their state.
29. Termination of Guardianship
• Guardianship terminates at any of this
stages:
1. The minor attaining 18 year of age
(majority).
2. The death of the child or guardian.
3. The termination of the appointment by
court order.
30. Conclusion…
It would be observed that the scenario
nowadays is that the best interest of the
minor is given preference over any other
consideration regardless of the parents or
child’s status.