Parental Care and the Best Interests of the Child in Muslim Countries Nadjma Yassari · Lena-Maria Möller Imen Gallala-Arndt Editors Parental Care and the Best Interests of the Child in Muslim Countries 1 3 Editors Imen Gallala-Arndt Nadjma Yassari Max Planck Institute for Social Max Planck Research Group: Changes in Anthropology God’s Law—An Inner Islamic Halle Comparison of Family and Succession Germany Laws Max Planck Institute for Comparative and International Private Law Hamburg Germany Lena-Maria Möller Max Planck Research Group: Changes in God’s Law—An Inner Islamic Comparison of Family and Succession Laws Max Planck Institute for Comparative and International Private Law Hamburg Germany ISBN 978-94-6265-173-9 ISBN 978-94-6265-174-6 (eBook) DOI 10.1007/978-94-6265-174-6 Library of Congress Control Number: 2016960773 Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2017 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Printed on acid-free paper This T.M.C. ASSER PRESS imprint is published by Springer Nature The registered company is Springer-Verlag GmbH Germany The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany Preface This volume compiles selected contributions to the workshop ‘Parental Care and the Best Interests of the Child in Muslim Countries’, which, under the auspices of the Max Planck Research Group ‘Changes in God’s Law—An Inner Islamic Comparison of Family and Succession Laws’, was convened at the Centre Jacques Berque pour les Études en Sciences Humaines et Sociales au Maroc in Rabat, Morocco, 1–5 April 2015. The workshop brought together the members of the Max Planck Working Group on Child Law in Muslim Countries that was estab- lished in 2014 to conduct comparative studies on various fields of child law in Muslim countries. The first project of the Working Group focused on the principle of the best interests of the child and parental care. In recent years, legislatures of many Muslim countries have revised the conventional Islamic rules on child custody. Whereas in the past, rules were oriented on fixed age brackets and the gender of the parent and child, they have increasingly been formulated in favour of the prin- ciple of the best interests of the child and/or in favour of the mother through an extension of the custodial time period afforded to her as a matter of law. Against this background, the principal goals of the workshop were to: (i) trace the incorporation of the principle of the best interests of the child into domestic law; (ii) analyse the reasons for establishing the concept as a fundamental princi- ple in child law; and (iii) identify the ways in which each jurisdiction under review perceives and interprets the best interests of the child in the field of parental care. The overriding research aim was to determine the impact made by the inclusion of the principle of the best interests of the child in Muslim legal systems and, in a second step, to compare the respective results and draw more general conclusions about the dynamics of legal developments in Muslim countries. Each of the ten chapters collected herein contains a historical perspective on the evolution of domestic rules on parental care and on the introduction and development of the notion of the best interests of the child. Further, the chapters consider social and cultural factors and discuss the particular characteristics of each country before analysing the policies and agendas of national legislatures and other stakeholders which have led them to amend law in a specific direction. v vi Preface Finally, significant attention has been given to legal practice and the role of the judiciary in interpreting the principle of the best interests of the child. In addition to the country-specific analyses collected herein, a thematic chapter by Shaheen Sardar Ali and Sajila Sohail Khan explores the public law dimension of children’s rights by assessing Muslim state party practice in light of responses to the UN Convention on the Rights of the Child. Moreover, a comparative analy- sis of the themes explored is presented in the Synopsis at the end of this volume. The editors wish to thank Baudouin Dupret for hosting the workshop at the Centre Jacques Berque as well as Global Affairs Canada for their valuable sup- port in making those chapters originally written in French accessible to a wider English-speaking audience. We also would like to express our deep gratitude to Tess Chemnitzer, Michael Friedman, Jocasta Godlieb and Shyam Kapila for their continuous assistance in editing and formatting this volume. Hamburg, Germany Nadjma Yassari September 2016 Lena-Maria Möller Imen Gallala-Arndt Contents 1 Egypt. 1 Jasmine Moussa 1.1 Introduction .......................................... 2 1.2 General Legal Framework ............................... 3 1.3 Egyptian Legislation on Guardianship and Child Custody ...... 6 1.3.1 Guardianship .................................. 8 1.3.2 Child Custody. 11 1.3.3 Visitation Rights ................................ 14 1.3.4 Some Special Applications: Children Born Out of Wedlock and Kafāla ........................... 15 1.4 Notable Legislative Developments ......................... 17 1.5 The Role of the Judiciary in Interpreting and Enforcing the ‘Best Interests of the Child’ Principle ................... 18 1.5.1 The Jurisprudence of the Court of Cassation .......... 18 1.5.2 The Jurisprudence of the Supreme Constitutional Court ......................................... 20 1.6 Conclusion ........................................... 25 References ................................................. 26 2 India ..................................................... 29 Jean-Philippe Dequen 2.1 Introduction .......................................... 30 2.1.1 Historical Setting: Muslim Personal Law Within the Indian Legal Order ........................... 31 2.1.2 Internal Conflict of Laws Between Muslim Personal Law and Indian Legislative and Constitutional Provisions in Relation to BIC .............................. 35 2.2 Guardianship and Custody Under Muslim Personal Law and the Guardians and Wards Act 1890 ..................... 40 2.2.1 Powers of the Guardian in Relation to the Marriage of a Minor ..................................... 41 vii viii Contents 2.2.2 Powers of the Guardian in Relation to the Property and Person of the Minor .......................... 42 2.3 The Integration of the Notion of the ‘Best Interests of the Child’ Within Litigation Amongst Indian Muslims ....... 51 2.3.1 Adverse Effects of MPL Under the GAWA Relating to the ‘Best Interests of the Child’ .................. 52 2.3.2 The Changing Nature of the Notion of the ‘Best Interests of the Child’ Within Muslim Disputes ............... 54 2.4 Concluding Remarks: The ‘Best Interests of the Child’, a Foreign Notion to Muslim Personal Law in India? ........... 59 References ................................................. 61 3 Indonesia ................................................. 63 Euis Nurlaelawati 3.1 Introduction .......................................... 64 3.2 Parental Care and the Introduction of the Notion of the Best Interests of the Child ................................... 65 3.2.1 Overview of the Rules on Parental Care in the Marriage Law and the Kompilasi Hukum Islam ............... 65 3.2.2 The Introduction of the Notion of the Best Interests of the Child .................................... 68 3.3 The Best Interests of the Child in Custody Rulings: Judicial Discretion and Procedural Reforms ........................ 69 3.3.1 Custody Regulations: Which Parent ‘Deserves’ Custody? ...................................... 69 3.3.2 Loss of the Right to Custody ...................... 70 3.3.3 Parental Agreements on Custody and the Best Interests of the Child .................................... 73 3.4 Enforcement of Custody Decisions ........................ 74 3.4.1 General Aspects ................................ 74 3.4.2 Financial Support for Children Under Mothers’ Custody ...................................... 75 3.5 Guardianship: Can Women Be Guardians? .................. 76 3.6 Procedural Aspects in Parental Care Cases .................. 77 3.6.1 The Engagement of Children in Court Hearings ....... 77 3.6.2 Settlement of Custody Through Mediation ........... 78 3.6.3 Lawyers and Appeals in Guardianship and Custody Cases ........................................ 78 3.7 Conclusion ........................................... 78 References ................................................. 79 4 Iraq ...................................................... 81 Harith Al-Dabbagh 4.1 Introduction .......................................... 82 4.2 Historical Perspectives .................................. 83 4.2.1 Family Law