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Parental Care and the Best Interests of the Child in Muslim Countries

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Abstract

This chapter examines the incorporation of the concept of the ‘best interests of the child’ in contemporary Egyptian legislation and judicial practice, with a particular focus on child custody, visitation and guardianship. Parental care in Egypt is governed by a series of fragmented personal status laws (the only area where religious law has been carried on into modern times) in addition to the Child Law. While the Child Law has referred to the child’s interests since 1996, it defers to the personal status laws, which still approach some issues related to child custody, guardianship and visitation as rights of the parents. Moreover, under Egypt’s personal status laws, the ‘best interests of the child’ principle has been interpreted in light of rigid gender roles that posit the mother and female family members as more compassionate nurturers whose role in the child’s upbringing is essential in the early years. Achieving the ‘best interests of the child’ has therefore been synonymous with prolonging the custody period of the mother (and other female family members), while guardianship rests with the father and the agnatic line. Important legal reforms since the year 2000, however, have increasingly solidified the notion of the ‘best interests of the child’. These include a reference to the principle in Egypt’s 2014 Constitution. Moreover, since 2005, the principle has been interpreted as requiring the child’s participation in their own custody arrangements once they reach the age of fifteen. The jurisprudence of the Court of Cassation and the Supreme Constitutional Court further reaffirms the principle, merging the shariʿa rationale for custody arrangements with the best interests principle, and validating the principle in religious terms.

The author is Assistant Professor of Law at the American University in Cairo.

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Notes

  1. 1.

    An-Na’im 1994, p. 62.

  2. 2.

    Ibid.

  3. 3.

    Law No. 12 of 1996 Regarding the Promulgation of the Child Law, Official Gazette no. 13bis of 28 March 1996. The principle is also incorporated in legislation relevant to juvenile justice and criminal procedure. See Egypt, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Committee on the Rights of the Child (11 November 1999), CRC/C/65/Add.9, p. 21, para 53; p. 64, para 194.

  4. 4.

    Khattāb 2015; Maḥmūd 2014.

  5. 5.

    Esposito and DeLong-Bas 2001, p. 47 and 49.

  6. 6.

    Abu-Odeh 2004, pp. 1081–1083. The capitulations system was an offshoot of the widespread European influence in Egypt and the ensuing legal privileges and concessionary benefits granted to European immigrants. Foreign nationals demanded that they be exempt from Islamic law, which was considered primitive and incapable of regulating complex economic and financial transactions.

  7. 7.

    See Moussa 2011, p. 5 and 14; Hajjar 2004, pp. 235–236 and 250–252. See also Büchler et al 2010, p. 80.

  8. 8.

    Berger 2002, p. 558; Berger 2001, p. 88; Berger 2005, p. 402.

  9. 9.

    Fadel 2012, p. 184.

  10. 10.

    Guindy 2014.

  11. 11.

    IslamopediaOnline 2011; Bibāwī 2004, p. 18; Sezgin 2013, p. 144.

  12. 12.

    Decree-Law No. 25 of 1920 Concerning Maintenance and Some Provisions in Personal Status, Official Gazette no. 61 of 15 July 1920.

  13. 13.

    Decree-Law No. 25 of 1929 Concerning Provisions in Personal Status, Official Gazette no. 27 of 25 March 1929.

  14. 14.

    Decree-Law No. 78 of 1931, Shariʿa Court Regulations, Official Gazette (Extraordinary Issue) no. 53 of 30 May 1931.

  15. 15.

    Law No. 118 of 1952 on Rules of Guardianship Over Self, Official Gazette no. 118bis of 4 August 1952.

  16. 16.

    Law No. 119 of 1952 on Rules of Guardianship Over Property, Official Gazette no. 118bis of 4 August 1952.

  17. 17.

    Law No. 100 of 1985 Amending Certain Rulings of the Laws of Personal Status, Official Gazette no. 27 of 4 July 1985.

  18. 18.

    Law No. 1 of 2000 Regarding the Promulgation of a Law to Organize Certain Conditions and Procedures in Matters of Personal Status, Official Gazette no. 4bis of 29 January 2000.

  19. 19.

    Law No. 10 of 2004 Regarding the Promulgation of the Family Courts Law, Official Gazette no. 12(a) of 18 March 2004.

  20. 20.

    Law No. 11 of 2004 Establishing a Family Insurance Fund, Official Gazette no. 12(a) of 18 March 2004. This law was amended by Presidential Decree No. 113 of 2015, Official Gazette no. 46 of 12 November 2015.

  21. 21.

    Law No. 4 of 2005 Amending Article 20 of Decree-Law No. 25 of 1929 (raising the age of maternal custody), Official Gazette no. 9bis of 8 March 2005.

  22. 22.

    For a detailed discussion, see Moussa 2011, pp. 134–143.

  23. 23.

    Anderson JND ‘Law Reform in the Middle East’, reproduced in Liebesny 1975, p. 103.

  24. 24.

    For a detailed discussion of these two concepts and the relationship between them, see Zahraa and Malek 1998.

  25. 25.

    Before then, Coptic Christians applied articles 127–128 of the 1938 Regulations on Personal Status for Coptic Christians, which granted priority in custody to the mother. However, in cases of divorce, the Regulations provided that custody was to be given to the parent that had been awarded a judicial divorce. This was deemed unconstitutional by the Supreme Constitutional Court in its Case no. 151 for the 20th Judicial Year (6 June 2000), in which it stipulated that: ‘Article 127 of the Regulations stipulates that the mother has a superior right to custody of her children during the marriage and after. After the mother, custody passes to the maternal grandmother and then to the paternal grandmother…. Article 128 of the same Regulations provides that “if there is no female relative of the child who has the capacity to act as custodian, custody passes to male relatives, while the father has priority …”. Article 72—which is currently being challenged—stipulates in its first paragraph that: “Custody of children is awarded to the spouse who is granted a divorce, unless the [Clerical] Council awards custody to the other spouse or to whosoever has the right to custody after him/her.” These provisions, together, provide that the right to custody belongs first to women who are close of kin or maḥārim (too closely related to marry), with priority to the child’s mother, whether during the marriage or after. This right does not pass to the child’s male relatives, including the father, except when there is no female relative eligible to exercise custody. However, the regulations excluded the “divorced mother” from this rule—according to the challenged text—in the case that the divorce judgment is issued in favor of the child’s father. This transfers custody to the father …. The plaintiff challenges this provision … for discriminating between the citizens of one nation, in a matter that does not relate to the essence of faith, and for breaching the principle of equality in the right to custody—between divorced Muslim women, their husbands and children, on the one hand, and divorced Christian women, their husbands and children on the other. It also squanders the interests of the Christian family, in violation of the provisions of Articles 10 and 40 of the Constitution. Child custody, in its legal essence—and according to this Court’s jurisprudence—is wilāya for upbringing whose objective is paying attention to the child’s needs and to look after his/her affairs in the early period of his/her life, in which he/she cannot dispense with the care of women who have the legal (sharʿī) right to raise the child. The origin of this right is the child’s interest, which is realized through bringing the child under her wing, as she is more capable of taking care of, directing and preserving him/her, and because ripping the child from her—while she is more compassionate and patient with him/her—is harmful to the child at this critical period of his/her life, in which the child is not yet independent.’

  26. 26.

    See below, notes 46–47 and accompanying text.

  27. 27.

    See Concluding observations of the Committee on the Rights of the Child: Egypt (21 February 2001), Committee on the Rights of the Child, 26th Session, UN Doc CRC/C/15/Add.145, p. 7, para 33–34.

  28. 28.

    See Badran 1996, p. 132; Ḥaḍānat al-aṭfāl 2012. Arguably, such reasoning perpetuates the stereotype of women as necessarily emotional and men as more rational and hence more mentally capable.

  29. 29.

    Moussa 2011, p. 187.

  30. 30.

    Büchler et al 2010, p. 81.

  31. 31.

    Ḥaḍānat al-aṭfāl 2012.

  32. 32.

    Second Shadow Report of the Egyptian NGOs Coalition on the CEDAW, p. 60; according to article 54 Child Law, ‘the educational responsibility of the child shall rest with the parent having custody, and in case of disagreement as to the best interests of the child, any of the concerned parties shall bring such matter to the attention of the President of the Family Court, in his capacity as a judge for temporary affairs, to decide upon the issue taking into consideration the financial situation of the child’s legal guardian, without prejudice to the right of the parent having educational responsibility.’

  33. 33.

    Büchler et al. 2010, p. 82.

  34. 34.

    Article 2 Law No. 118 of 1952. See below.

  35. 35.

    Articles 29–31 Law No. 118 of 1952.

  36. 36.

    But see Shadow Report of the Egyptian NGOs Coalition on the CEDAW, p. 36.

  37. 37.

    Articles 5–12, 15, 16 Law No. 119 of 1952; Moussa 2011, p. 184.

  38. 38.

    Hodkinson 1984, p. 310.

  39. 39.

    Article 18bis2 Decree-Law No. 25 of 1929 as amended by Law No. 100 of 1985.

  40. 40.

    Ibid.

  41. 41.

    Law No. 10 of 2004.

  42. 42.

    Thomason 2008, p. 129.

  43. 43.

    Behrouz 2003, p. 1151.

  44. 44.

    Badran 1996, p. 132.

  45. 45.

    Büchler et al. 2010, p. 82.

  46. 46.

    See Bernard-Maugiron and Dupret 2002, p. 7; Büchler et al. 2010, p. 80.

  47. 47.

    See below, Sect. ‎1.4.

  48. 48.

    See e.g. Court of Cassation, Case no. 5277 for the 78th Judicial Year (15 June 2009).

  49. 49.

    Stark 2005, p. 194.

  50. 50.

    A maḥram is a relative who is prohibited from marrying the child.

  51. 51.

    Khallāf 1938, p. 209 (author’s translation).

  52. 52.

    Stark 2005, p. 194.

  53. 53.

    Article 392, Qadri Pasha’s Compilation.

  54. 54.

    Stark 2005, p. 194.

  55. 55.

    ʿAbd al-Ākhir 1985.

  56. 56.

    Article 9 CRC.

  57. 57.

    General Recommendation no. 21, CEDAW 1994.

  58. 58.

    Court of Cassation, Case no. 28 of the 44th Judicial Year (12 May 1976).

  59. 59.

    See Thomason 2008, p. 123.

  60. 60.

    Court of Cassation, Case no. 10 of the 29th Judicial Year (17 January 1962).

  61. 61.

    Thomason 2008, p. 122.

  62. 62.

    Presidential Decree No. 15 of 2015 Amending Law No. 137 of 2010, Official Gazette no. 10bis (b).

  63. 63.

    Talal 2015.

  64. 64.

    Thomason 2008, p. 142.

  65. 65.

    Ibid., p. 126; Article 4 Law No. 126 of 2008 Amending Certain Rulings of the Child Law, the Penal Code and the Civil Status Law, Official Gazette no. 24bis of 15 June 2008.

  66. 66.

    Sayed 2013, pp. 513–514; Muslim Women’s Shura Council 2011, p. 6 and 16; Fontes and Wanchic.

  67. 67.

    Law No. 4 of 2005; Leila 2005.

  68. 68.

    Ḥaḍānat al-aṭfāl 2012.

  69. 69.

    Ḥaḍānat al-aṭfāl 2012.

  70. 70.

    Court of Cassation, Case no. 75 for the 53rd Judicial Year (19 March 1985).

  71. 71.

    Court of Cassation, Case no. 5277 for the 78th Judicial Year (15 June 2009).

  72. 72.

    IslamopediaOnline 2011.

  73. 73.

    Supreme Constitutional Court, Judgment of 4 May 1985, translation in Arabi 2001, p. 6.

  74. 74.

    Ibid.

  75. 75.

    Supreme Constitutional Court, Judgment of 15 May 1993, translation in Dupret 1997, p. 96.

  76. 76.

    Supreme Constitutional Court, Judgment in Case no. 7 of the 8th Judicial Year (15 May 1993), Al-Jarīda Al-Dustūriyya 5(2), p. 260 and 270-1 (author’s translation).

  77. 77.

    Ibid., p. 260 (author’s translation). In subsequent cases, the SCC went even further to confer legitimacy upon the government and legislature’s departure from the reasoning of the established juristic schools. It stated that the shariʿa ‘does not vest sacredness on the arguments of any Muslim scholar on any affair, i.e. sacredness that precludes revision and reconsideration, even substitution … it is correct to say that the independent reasoning by any one Muslim scholar is not necessarily worthy of being followed than that by any other.’ Supreme Constitutional Court, Judgment in Case no. 8 of the 17th Judicial Year (18 May 1996). It later elaborated on this principle in Case no. 82 (1997), in which it stipulated that: ‘independent reasoning in indecisive [or discretionary] legal rules … is a right given to Muslim scholars, but the ruler is more entitled thereto so that he can consider each issue individually … with the help of those Muslim scholars, but without being necessarily restricted by the opinions of others. He may give different legal rules after referring to [the Qurʾan] and [the sunna] to regulate people’s affairs in a certain environment with its special circumstances, considering that the interests to be regarded are those which agree with the objectives of the shariʿa, defined in light of their development, since they are unlimited. Thus the ruler, when choosing between two opinions, should consider the easier, unless it is a sin, and not give a legal rule that is hard upon the people, or else he will be contradicting the Qurʾanic verse “Allah would not place a burden on you”.’ Supreme Constitutional Court, Judgement in Case no. 82 of the 17th Judicial year (5 July 1997).

  78. 78.

    Supreme Constitutional Court, Judgment in Case no. 7 of the 8th Judicial Year (15 May 1993), p. 269 (author’s translation).

  79. 79.

    Supreme Constitutional Court Judgment in Case no. 74 of the 17th Judicial Year (1 March 1997), Al-Jarīda Al-Dustūriyya 8, p. 437.

  80. 80.

    See Büchler et al. 2010, p. 92.

  81. 81.

    Supreme Constitutional Court, Judgment in Case no. 125 of the 27th Judicial Year (2008), translation in Büchler et al 2010, pp. 87–88. Article 9 of the 1971 Constitution stipulated that: ‘the family is the basis of the society founded on religion, morality and patriotism. The State is keen to preserve the genuine character of the Egyptian family—with all values and traditions represented by it—while affirming and promoting this character in the interplay of relations within Egyptian society.’

  82. 82.

    Ibid.

  83. 83.

    Supreme Constitutional Court, Judgment in the Case no. 125 of the 27th Judicial Year (2008), (author’s translation).

  84. 84.

    Supreme Constitutional Court Judgment in Case no. 125 of the 27th Judicial year (2008), translation in Büchler et al. 2010, p. 88.

  85. 85.

    Ibid.

References

  • ʿAbd al-Ākhir Ḥ (1985) Taqrīr al-lajna al-mushtaraka min: lajnat al-shuʾūn al-dustūriyya wa-l-tashrīʿiyya wa-maktab lajnat al-shuʾūn al-dīniyya wa-l-ijtimāʿiyya wa-l-awqāf (annexed to Law No. 100 of 1985), Official Gazette no. 27 of 4 July 1985

    Google Scholar 

  • Abu-Odeh L (2004) Modernising Muslim Family Law: The Case of Egypt. Vand. J. Transnat’l L. 37:1043–1146

    Google Scholar 

  • An-Na’im A (1994) Cultural Transformation and Normative Consensus on the Best Interest of the Child. Int J Law Fam 8(1):62–81

    Google Scholar 

  • Arabi O (2001) The Dawning of the Third Millennium on Shariʿa: Egypt’s Law no. 1 of 2000, or Women May Divorce at Will. Arab Law Q 16(1):2–21

    Google Scholar 

  • Badran M (1996) Feminists, Islam, and Nation: Gender and the Making of Modern Egypt. Princeton UP, Princeton

    Google Scholar 

  • Bibāwī NL (2004) ʿAdam dustūriyyat qānūn al-aḥwāl al-shakhṣiyya al-muṭabbaq ʿalā al-masīḥiyyīn, Cairo

    Google Scholar 

  • Behrouz AN (2003) Transforming Islamic Family Law: State Responsibility and the Role of Internal Initiative. Columbia Law Rev 103:1136–1162

    Google Scholar 

  • Berger M (2001) Public Policy and Islamic Law: The Modern Dhimmī in Contemporary Egyptian Family Law. Islamic Law Soc 8(1):88–136

    Google Scholar 

  • Berger M (2002) Conflicts Law and Public Policy in Egyptian Family Law: Islamic Law Through the Backdoor. Am J Comp L 50(3):555–594

    Google Scholar 

  • Berger M (2005) Secularizing Interreligious Law in Egypt. Islamic Law Soc 12(3):394–418

    Google Scholar 

  • Bernard-Maugiron N, Dupret B (2002) From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt. Recht van de Islam 19:1–19

    Google Scholar 

  • Büchler A et al (2010) Supreme Constitutional Court of Egypt: A Commented Translation of Egypt's Supreme Constitutional Decision in Case No. 125 of Judicial Year 27 on Child Custody. GAIR-Mitteilungen 79–93. www.rwi.uzh.ch/oe/cimels/publications/GAIR-2010-Mitteilungen-02.pdf. Accessed 1 May 2014

  • Dupret B (1997) A propos de la constitutionnalité de la sharīʿa: Présentation et traduction de l’arrêt du 26 Mars 1994 (14 Shawwāl 1414) de la Haute Cour Constitutionnelle (al-maḥkama al-dustūriyya al-ʿulyā) égyptienne. Islamic Law Soc 4:91–113

    Google Scholar 

  • Esposito J, DeLong-Bas N (2001) Women in Muslim Family Law, 2nd edn. Syracuse UP, New York

    Google Scholar 

  • Fadel MH (2012) Political Liberalism, Islamic Family Law, and Family Law Pluralism. In: Nichols J (ed) Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion. Cambridge University Press, New York, pp 164–199

    Google Scholar 

  • Fontes A, Wanchic F (n.d.) Beloved Outcasts. Mafhoum 8(4). www.mafhoum.com/press7/187S28_fichiers/adoption0804.htm. Accessed 1 March 2016

  • Guindy A (2014) Family Status Issues Among Egypt's Copts: A Brief Overview. On Coptic Nationalism. https://copticliterature.wordpress.com/2014/08/23/quest-article-family-status-issues-among-egypts-copts-a-brief-overview/. Accessed 15 March 2014

  • Ḥaḍānat al-aṭfāl (2012) National Council for Women. www.ncwegypt.com/index.php/ar/docswomen/pslara/282-custogyara. Accessed 13 January 2015

  • Hajjar L (2004) Domestic Violence and Shari’a: A Comparative Study of Muslim Societies in the Middle East, Africa and Asia. In: Welchman L (ed) Women’s Rights and Islamic Family Law: Perspectives on Reform. Zed Books, New York, pp 231–274

    Google Scholar 

  • Hodkinson K (1984) Muslim Family Law: A Sourcebook. Helm Publishers, London

    Google Scholar 

  • IslamopediaOnline (2011) Non-Muslims Personal Status Laws. www.islamopediaonline.org/country-profile/egypt/islam-and-legal-system/non-muslims-personal-status-laws. Accessed 15 March 2015

  • Khallāf ʿA (1938) Aḥkām al-aḥwāl al-shakhṣiyya fī al-sharīʿa al-islāmiyya, 2nd edn. http://sh.rewayat2.com/b7oth/Web/8631/001.htm. Accessed 23 September 2015

  • Khattāb M (2015) Interview (24 March 2015)

    Google Scholar 

  • Leila R (2005) More Maternal Rights. Al-Ahram Weekly no. 733. http://weekly.ahram.org.eg/2005/733/eg9.htm. Accessed 1 March 2016

  • Liebesny HJ (ed) (1975) The Law of the Near and Middle East: Readings, Cases and Materials. State University of New York Press, Albany, pp 103–104

    Google Scholar 

  • Maḥmūd R (2014) Waḍʿ muṣṭalaḥ al-maṣlaḥa al-fuḍlā li-l-ṭifl fī dustūr 2013 li-awwal marra, Ṣawt al-Umma. www.masress.com/soutelomma/50234

  • Moussa J (2011) Competing Fundamentalisms and Egyptian Women’s Family Rights. Brill Martinus Nijhoff Academic Publishers, Leiden

    Google Scholar 

  • Muslim Women’s Shura Council (2011) Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child. American Society for Muslim Advancement. www.wisemuslimwomen.org/images/activism/Adoption_(August_2011)_Final.pdf. Accessed 1 March 2016

  • Sayed M (2013) The Kafala of Islamic Law - How to Approach it in the West. In: Essays in Honour of Michael Bogdan. Juristförlaget, Lund

    Google Scholar 

  • Sezgin Y (2013) Human Rights under State-Enforced Religious Family Laws in Israel, Egypt and India. Cambridge University Press, New York

    Google Scholar 

  • Stark B (2005) International Family Law: An Introduction. Ashgate, Burlington

    Google Scholar 

  • Talal O (2015) ‘20 Years to Prove He Was My Child's Father’: Paternity Disputes in Egypt Destroy Lives. Aswat Misriya. http://egyptianstreets.com/2015/12/03/20-years-to-prove-he-was-my-childs-father-paternity-disputes-in-egypt-destroy-lives. Accessed 4 March 2016

  • Thomason LM (2008) On the Steps of the Mosque: The Legal Rights of Non-Marital Children in Egypt. Hastings Women’s Law J 19:121–148

    Google Scholar 

  • Zahraa M, Malek NA (1998) The Concept of Custody in Islamic Law. Arab Law Q 13(2):155–177

    Google Scholar 

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  1. American University in Cairo, AUC New Cairo Campus, AUC Avenue, P.O. Box 74, New Cairo, 11835, Egypt

    Jasmine Moussa

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  1. 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

    Nadjma Yassari

  2. 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

    Lena-Maria Möller

  3. Max Planck Institute for Social Anthropology, Halle, Germany

    Imen Gallala-Arndt

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Moussa, J. (2017). Egypt. In: Yassari, N., Möller, LM., Gallala-Arndt, I. (eds) Parental Care and the Best Interests of the Child in Muslim Countries. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-174-6_1

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