AHMAD IBRAHIM KULLIYYAH OF LAWS        International Islamic University, MalaysiaTHE IMPORTANCE OF GUARDIANSHIP IN FAMILY ...
The concept of Guardianship-    Guardianship is the position of being legally responsible for some one.     (Macmillan Eng...
• Bases of Guardianship in Family Law:– Islamic Law:–   ‘Mothers shall give suck to their offspring for the two whole year...
Types of Guardianship:1.   In term of Personality of the guardian:     - Guardianship of the parents:     - Guardianship o...
Guardianship of the parents:Islamic Law (Shari’ah)    All the Islamic Schools of Law agree that, the father of a child is ...
Practice and developments in Hanafyah Jurisdiction:Pakistan:            .Given the interest of the minor preference:      ...
Practices and developments in Malikiyah Jurisdiction:-      Morocco:       Enhancing the Protection of Children’s Rights: ...
Practices and developments in Shafi’iyyah Jurisdiction: - Malaysia:         LR stipulates the applicability of Shariah (Sh...
Continue…….- Indonesia:  . Development:     Under Article 1 (5) of Perpu 2/2007 a     guardian is defined as a     person ...
Practice and Development in Hanabilah                Countries- United Arab Emirate:  UAE Personal Law No . 28 /2005, Arti...
Guardianship in Mula’anah Case:-   Definition of Mula’anah:    Mula’anah is the situation whereby a husband will deny bein...
Guardianship of Parents under Common Law:Evolution:  In the past, parents are considered the legitimi tutores of  their ch...
Development……….- Prior and due to the stipulation of CEDAW: Article  16(1)(f) which states that: The same rights and  resp...
Practice and Development in Common Law Countries-   South Africa:     NO. 192 OF 1993: GUARDIANSHIP ACT, 1993. (2) Wheneve...
Cont….- UK:• The Childrens Act 1989, Schedule 15. States that:• A parent with parental responsibility may appoint a  guard...
Guardianship of Persons other than the parent     Guardianship of persons other than the parents are of     two types name...
Testamentary Guardianship According to the effect of the new rule that parents are no longer the “natural guardians” of th...
Testamentary Guardianship in Islamic Law Shariah permitted parents to appoint a testamentary guardian of their choice for ...
Legal Guardianship in the Common                Law• In the common law countries, the court has the power to  appoint a gu...
Duties and Responsiblities of a                 Guardian•    It is the duty of the guardian to safeguard the child’s:1.   ...
Guardianship of the Child outside wedlock•    In the case the right of custody and guardianship belongs to     the mother ...
Guardianship of Child of Same-Sex Marriage       There is fluctuation in the custody of the minor child in same       sex-...
Types of Guardianship in Accordance to Duties:•   Guardianship on person:•   Guardianship over person simply means guardia...
Condition of a guardian or custodianship1. Must be a Islam.2. Mother must marry person other than   Maharam.3. Must be a m...
Recent Developments in Guardianship System:• In the modern day a lot of innovations and development has  been brought to t...
Continue……-   COMMUNITY GUARDIANSHIP (AUSTRALIA):    Many adults in Western Australia have limited capacity to    make dec...
Continue…….- Standby Guardianship: One of the more recent approaches to transferring custody is facilitated through standb...
Cont…• Permanent Guardianships (UK)• These are guardianships designed for children who  have been in state custody and whi...
Termination of Guardianship•  Guardianship terminates at any of this   stages:1. The minor attaining 18 year of age   (maj...
Conclusion…It would be observed that the scenarionowadays is that the best interest of theminor is given preference over a...
Wallahu a’alamThank you for the audience
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Abdul azeez maruf olayemi guadianship-comparative family law

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Comparative Family Law

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Abdul azeez maruf olayemi guadianship-comparative family law

  1. 1. AHMAD IBRAHIM KULLIYYAH OF LAWS International Islamic University, MalaysiaTHE 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. 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 childs legal guardian in the event of their death..•
  3. 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. 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. 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. 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 inaccordance with the welfare of the minor, keeping in mind any positive prohibition of theperson 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. 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 fathers duty until girl is married and until boy is of age able to earn his own living. .
  8. 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. 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. 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. 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. 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. 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. 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. 15. Cont….- UK:• The Childrens 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. 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. 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. 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 ي‬‫كتب 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. 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. 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 development4. Protection and management of his property5. Act as the minors legal representative
  21. 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. 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. 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. 24. Condition of a guardian or custodianship1. Must be a Islam.2. Mother must marry person other than Maharam.3. Must be a major.4. Must be sane.
  25. 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. 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. 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. 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. 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. 30. Conclusion…It would be observed that the scenarionowadays is that the best interest of theminor is given preference over any otherconsideration regardless of the parents orchild’s status.
  31. 31. Wallahu a’alamThank you for the audience

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