The Principle of Protecting the Best Interests of the Child in Shia Jurisprudence and Iran’s Legal System with Emphasis on Custody (New Understanding of a Traditional Legal Concept)

Outlining the Subject

The principle of best interests of the child which is raised in Article 3 of the Convention on the Rights of the Child (CRC) has been recognized by almost all schools of Islamic jurisprudence (Madh’hab) and in all Muslim majority countries’ positive law. However, this article focuses on classical Ja’fari (Ithna Ashari/Twelver) Shia jurisprudence and Iranian law.

In different Islamic jurisprudence books and topics on the subject of children’s rights such as guardianship over the child, custody and tutorship, the wording and the expressions used are all focused on the significance of the best interests of the child under custody of the parents or whoever religiously has the right to make decisions about the child. In Sheikh Tusi’s ¹ first comprehensive collection of Shia Ijtihad  ² , he has divided the religiously righteous decision makers in relation to the child into five groups, namely the father, the paternal grandfather, executor of each of them and finally the imam [nowadays, we could replace imam by the state or any person or legal person appointed by the government to replace the imam]. Then he explains,

Acts of these five groups are conventional only if they regard the best interests of the child, because the reason they are chosen is to regard the best interests of the child; therefore, if otherwise their actions are illegal since their actions are contrary to the main reason why they are appointed. ³

Based on the evidence that will be discussed briefly further in this article, Shia jurists insist on regarding a child’s best interests in all decisions regarding the child and his/her property as a crucial principle. For example, Maraghi has noted in his book Al-Anavyn:

Based on the evidence and the consensus of religious jurists, control of the guardianship is limited by the best interests of the child, because this interests is what we are sure to understand from the reason of custody of the child and that this system is designed only to secure child’s best interests since he/she might be incapable to secure his/her interests alone. ⁴

Quran

Shia interpreters of Quran and scholars have used many verses like Verses 220 and 233 of Chapter 2, Verses 2 and 3 of Chapter 4, Verse 152 of Chapter 6, which is repeated in Verse 34 of Chapter 17 to prove what is pursued. Here your attention will be drawn to one example.

Verse 152 of Chapter 6 which is repeated in Verse 34 of Chapter 17 has been interpreted as ‘and do not approach the wealth of an orphan except in the best manner, until he reaches his adulthood’. Therefore it must be proven that interfering is a better act than leaving alone their property thus just proving that the act is appropriate is not enough. Sheikh Tusi has mentioned in his interpretation in his book At-Tibyan Fi Tafsir al-Quran that one could only interfere in the part of orphan’s property which is obvious, that is, in orphan’s best interests, otherwise, interfering is illicit. ⁵ Another leading Shia jurist and Quran commentator, Ahmad Ardebili in his interpretation in his book Zobdatolbayan has also mentioned the same phrase plus mentioning that this reason and proof has to be understood by ‘common logic’. ⁶ Seyed Mohammad Hossein Tabataba’i ⁷ has also said ‘in the best way that could be possibly imagined to secure the orphans property’. ⁸

It is worth mentioning that using the word ‘orphan’ does not mean that this verse is only directed towards orphans and instead it covers all children’s rights. As Shaykh Tabarsi ⁹ stated, ‘the reason that this verse talks about orphans is because they are more likely to be exposed to violation by others because they have no parents’. ¹⁰ Therefore, a father who interferes with his child’s property against the child’s best interests is also forbidden to take any action.

Moreover, mentioning the property of the child in the Ayeh ¹¹ does not mean that the child’s interests is only limited to their property, but it also encompasses all of the child’s interests. Owing to religious governors, saving life, honour and their upbringing are more important than their property.

Hadith

The principle can be seen in many a hadith narrated from Shia imams. One of them is ‘Sahihe Ali’Ibn Re’ab’ quoted from seventh imam, Musa bin Ja’far about selling orphans’ property for which he has ruled ‘if the orphans have a guardian and the guardian is dealing their property, the deal is acceptable only if it is in the best interests of the child’. Therefore, the acceptance of the deal depends on the best interests of the orphans. ¹²

Consensus

There is a consensus on permitting the guardian’s acts concerning the child as long as it is in the best interests of the child. However, there are differences between them in the limit and the way of authentication of the act. Seyed Javad Ameli, a Lebanese Shia scholar, has mentioned this consensus in his book Meftah-ol-Karameh ¹³ and in the other part of this book, he claims that the consensus is made among all Muslims. ¹⁴

Reasoning

As has been explained in usul al-fiqh (principles of jurisprudence), Shia scholars consider reasoning (aql) as one of religious orders evidence. ¹⁵ In addition to this, according to this evidence, the principle is verifiable as follows.

The primary rule is that no one has authority and domination over another human being. In other words, having custody over a person needs to be justified by a rational reason. Logically, it is understandable that a child is incapable of securing his/her own benefits. Therefore, the guardian should assure the child’s benefits. Common logic justifies the necessity of a guardian to secure child’s personal and possessions interests. Therefore, if the guardian’s acts are not in line with child’s benefits and shielding harm, he/she is not encountered as the guardian and his/her acts are void. This voidance could be directed at the whole act or part of the act which is not in line with child’s benefits. Universal consensus on the principle shows that this is a rational understanding not just a religious sentence.

Tutorship (Qaymumah)

By studying different Articles legislated upon in Iranian laws on the topic of tutorship, we can observe that the Iranian legislator had an eye on the principle of the best interests of the under-tutored child as a fundamental rule. As mentioned in Article 1184 of Civil Code, one of the situations that a tutor is chosen is when the natural guardian has neglected the best interests of the child and has performed a damaging act. In addition to this, under Articles 1217 and 1235 of Civil Code and Article 79 of non-litigious law responsibilities of the tutor are divided into two parts. First, tutorship and managing the non-financial affairs of the child like safe keeping of the child and second, managing the financial affairs of the child.

These examples and other laws show how the Iranian legislature has always borne in mind the need for protecting the best interests of the child.

It can be said that the Iranian legislators have focused more on the financial interests of the child and have set out explicit laws. Yet on the other hand, they have not been very explicit about non-financial affairs such as safe guarding, educating and breeding the child, which are more important.

In order to illustrate the Iranian legislature’s attention to both financial and non-financial affairs of the child, a few examples are given below.

The concept of ‘taking care of the child’ includes protecting, healthy keeping, safe guarding, medical measures, education and teaching a profession under the framework of Article 79 of non-litigious law based on the best interests of the child.

This concept contains multiple meanings and explains important responsibilities and that the negligence of the tutor could result in judicial actions. Article 96 of Non-litigious law has provided that ‘discerner ward [a child who though not mature but may distinguish between good and evil auditor] may complain against his/her tutor, for avoiding to pay fees and failure to training and maintenance’.

This should not lead to the inference that due to the wording of this Article, only the injured person, that is, the discerner ward, has the right to apply for an institute judicial proceedings. This is because Article 97 of this Act states that ‘ward and any related person could notify the prosecutor about the evidence of necessity to dismissing the tutor. In this case, if the prosecutor consents, he will plead to the court for dismissal of the tutor’.

Articles 1168 and 1185 of the Civil Code have mentioned that the responsibility of the tutor rises in cases when the minor has neither father, paternal grandfather, successor appointed by one of them, Article 1194 has called these three ‘special guardian’, nor mother.

In Article 1232, it has been mentioned that if the close relatives of the minor are competent to become a tutor, they are pre-eminent to others.

As the aforementioned, the Iranian legislature has emphasized on the financial affairs of the minor which some of them are to protect minors property and minors legal acts, but most of them are about accounting.

The Definition of Custody in Shia Jurisprudence and Iran’s Legal System

As a short report of the use of term ‘custody’ by Shia jurists and in juridical texts, it is noteworthy that Muhaqqiq al-Hilli ²² has used this term repeatedly in his great book, Shara’i al-Islam, without any definition and explanation about it. Sheikh Muhammad Hasan Najafi ²³ in his book Jawāhir al-kalām fī sharḥ Sharā’i‘ al-Islām (which is a detailed explanation and interpretation of Muhaqqiq’s book), has expressed clearly that ‘in any case, the key concept of custody is protection and maintenance of the person under guardianship’. In the other word the most important thing is the interests and expedients of the person under guardianship. Another leading Shia scholar, Shahid Thani ²⁴ has written in his definition of custody that it is ‘an institution for guardianship over the minors and insane to upbringing, education and other things that are necessary for their interests’.

Shia jurists consider custody of the child to be a religious duty on the parents. To prove this, they refer to all sources of Shia fiqh, Quran and Hadiths as primary sources as well as consensus (ijma) and intellect (aql) ²⁵ as secondary sources. For example, they have argued that in Verse 233 of Chapter 2 ²⁶ and Verse 6 of Chapter 65, ²⁷ from mentioned sentences, it became clear that from Shia jurists’ perspective, custody has two key elements—one of them is maintenance and physical care of the child’s body; another is providing her/his emotional and spiritual needs and upbringing of the child.

Iran’s Civil Code, which usually, particularly in family law is affected by the provisions of Shia Jurisprudence, has paid attention to these both elements of custody. Article 1168 has mentioned ‘taking care of the child’ ²⁸ and Article 1173 has addressed ‘physical health and moral education of the child’. ²⁹

Both Parents

As we have seen in Islamic jurisprudence and written law, taking custody of the child is consigned to parents. Article 1103 of Civil Code mentions that for arranging families in a way that a child could be raised properly it is appointed that ‘Husband and wife are bound to establish friendly relations’. Article 1104 specifies that ‘Husband and wife must cooperate with each other for the welfare of their family and the education of their children’. Article 1168 is also a reflection of saving the best interests of the child, stating that ‘Maintenance of children is both the right and duty of the parents’. It is repeated in Article 1178 that ‘Parents are bound to take such measures as circumstances and their means allow for the education of their children. They must not leave their talents undeveloped’.

Priority of Mother for Custody in Special Cases

Regarding taking custody of a child, Article 1168 of the Civil Code explains that ‘Maintenance of children is both the right and duty of the parents’. Article 1169 as a general rule which in some cases could be incompatible with the interests of the child provided that ‘For taking care of the child, the mother has a priority for the first two years and after this time, the custody is with father, except girls for whom mother has priority for the first 7 years’.

The problem that arose mostly in family cases in courts was that leaving the child in father’s hands after 2 and 7 years of the child’s birth respectively was not found to be in the best interests of the child by courts in various instances, yet the law was clear and the judge had no other option. Article 12 of The Family Protecting Law addressed that ‘in cases that reconciliation is not possible the court will arrange taking care of the child in attention to ethical, financial and the best interests of the child’. However, judges could not cite to this Article, because after the 1979 revolution, this law was considered contrary to Sharia and was annulled.

In theory, Article 1173 of the Civil Code could help the judge to neglect what was said in Article 1169 because Article 1173’s amendment in 1997 indicates:

If the physical health or moral education of the child is endangered as a result of carelessness or moral decline of the father or mother who are in charge of its custody the court can take any decision appropriate for the custody of the child on the request of its relatives or its tutor or the Public Prosecutor.

Examples of the lack of parental care and moral corruption include addiction to alcohol, drugs and gambling, being known for moral corruption and prostitution, forensic mental illnesses diagnosed, abuse of the child or forcing him to enter immoral professions, such as prostitution, trafficking, begging and repeated corporal punishment beyond normal.

However, practically citing this article did not solve the problem for protecting the best interests of a 5-year-old boy by resting his custody to his mother because first, the legislator ruled Article 1169 and then used Article1173 as an exception. Second, although five mentioned cases in Article 1173 are merely illustrative, not exhaustive, these illustrations demonstrate that only in very important cases can a judge neglect the general rule which is mentioned in Article 1169 and refer to the exception to this rule in Article 1173. Thus, on many occasions without expression of serious problems that exist in the five paragraphs of Article 1173, the implementation of Article 1169 was incompatible with the interests of the child.

At that time, some child rights activists for seeking to find an answer to this situation and to modify the rules for custody in Civil Code approached top religious leaders, marja’ taqlīdī, ³⁰ their fatwas ³¹ as an underlying means to reform this article to provide the best interests of the child.

One of the questions asked was that: ‘Can the court, with regard to the particular circumstances of the parents and protecting the welfare of the child, regardless of the age of the child, give the child to his father or mother?’ Seyed Ali Sistani ³² stated ‘The judge can do it in certain circumstances, for example, if one of them is mentally impaired and is unable to keep the child’. Makarem Shirazi ³³ answered ‘in special occasions it is possible’. Mohamad Fazel Lankarani ³⁴ said ‘The judge can order child’s custody to one parent or to entrust a third person due to child’s best interests’.

In these answers, ³⁵ we can see the importance of protecting child’s best interests but there are practical problems in courts and authenticating ‘special circumstances’, ‘compulsion’ and ‘best interests’.

The sixth parliamentary session changed Article 1169, to solve this problem, as ‘The mother has priority to have custody of the child until 7 years old and after that if there were any claims it will be by court’s decision’. The Guardian Council did not accept this modification. The parliament did not accept the Guardian Council’s rejection and sent the revision to the Expediency Council. ³⁶ Finally, on 18 November 2003, the Expediency Council’s decision was to change the article for protecting the best interests of the child as ‘For taking custody of the child whose parents are living apart, the mother has priority until 7 years old. After the child turns 7 years old if there were any claims, the court will decide due to the best interests of the child’.

The Legal Status of Child in Case of Differentiated Nationality of Parents

One of the important questions in private international law is that when the nationality of the child and the parents are different which law is applicable on their relationship? To answer this question, the best interests of the child are again relevant. On this subject, Iranian lawyers have two theories. Some believe that the law of child’s nationality should be applicable so the best interests of the child are protected. Others believe that in the relationship between child and parents, the child is not the only party with benefits and therefore, since the father is the main member of the family and is in charge, the law related to his nationality must be applicable. ³⁷

This subject is proposed for all legal discussions related to the child’s protection.

Article 964 of Civil Code is a clear answer to this question. This article indicates ‘the law applicable on the relationships between child and parents is the law by father’s nationality, unless the only certain parentage of the child is that of its mother, in this case the relations between the two follow the laws of mother’s nationality’. Article 964 further states that ‘Relations between parents and their children are subject to the law of the country of the father unless the only certain parentage of the child is that of its mother, in which case the relations between the two follow the laws of the country of the mother’.

This article makes two situations clear. First, in case the father is known, the law applicable between the parents and the child is the law of father’s nationality. Second, in case that only the mother is known, the law of mother’s nationality is applicable. Although this article resolves the ambiguity, it does not appear that protecting the child’s best interests was the main focus of this Article. The question remains as to, in case in a law suit mother’s nation’s law is better for the child, why should the law of father’s nationality be applicable? This would not be protecting the best interests of the child. It is also possible that the state where the child is born gives the nationality (jus soli). In this case another law could be applied on the child. However, even if the judge discovers that the law of the state where the child is born is more beneficial for the child, he has to rule according to Article 964 and the law of father’s nationality would be dominant. Further, when the father of the child is not known but the mother is known, and the state where the child is born has given him its nationality, according to Article 964, the law applicable is of the mother’s nationality even if it is evident that the law of the state where the child is born is more beneficial for the child.

In all the mentioned cases, the question remains as to why the Iranian legislature did not allow the judge to decide by examining which law is better for the child and to choose the most beneficial for the child. It may be that this path was chosen by the legislature to make rulings easier. However, it is argued that the easy way is not always the best way, especially when involving the future of the child.

Custody of the Children after the Death of Father

Unlike guardianship that Iranian law (e.g., Article 1180 of Civil Code) has recognized simultaneously for father and grandfather, based on Iranian law, such as in Article 1168 of Civil Code, custody is a special right and duty of parents and other persons, including the grandfather, does not have such right or obligation. Thus, it is clear from the law that after the death of father, his wife will have the custody of the child even though she is married to another man. In other words Article 1170 which says ‘If the mother becomes insane or marriage another man during her period of custody, the custody will devolve on the father’ is in the context that the father is still alive. This article will be more clear when followed by Article 1171 stating that ‘If one of the parents dies, the custody will be the duty of the surviving although the deceased be the father and he may have appointed a guardian for the child’. If the father is dead, based on Article 2 of the law of transfer of custody of minor children or incapacitated to their mothers, approved in 1985, the mother’s marriage does not deprive her of her right to take her own child into her custody.

The Circumstances Terminating the Right to Take Custody

With regard to the primary rule of no custody and no dominance of anybody on other humans, recognising parents’ rights to have custody over child is only to protect the best interests of the child. Therefore, if one of the parents cannot protect the best interests of the child his/her right to continue the custody on child fails.

Article 1173 of the Civil Code indicates that:

If the physical health or moral education of the child is endangered as a result of carelessness or moral decline of the father or mother who are in charge of its custody the court can take any decision appropriate for the custody of the child on the request of its relatives or its tutor or the Public Prosecutor.

To avoid prorogation of judicial process, the Iranian legislator in its amendment of Article 1173 has mentioned some examples of lack of parental care and moral corruption and grounds for consequently removing the right to have custody over child.

Use of Physical Punishment for Children’s Upbringing

As we have learned, Iran’s Civil Code has recognized a child’s custody as the parents’ obligation and right. We have also understood that the word ‘custody’ includes two concepts—maintenance and upbringing. Now the proposed question is whether parents have the right to use punishment in their children’s nurturing or not? Based on fifth clause of Article 1173 of Civil Code ‘repeated corporal punishment beyond the normal’ is one of the potential causes for loss of custody rights. The hidden concept in the aforementioned phrase is that if the beating and mayhem is not repeated or is not beyond the normal then there will not be an executive penalty. Article 1179 of Iran’s Civil Code also states herein ‘Parents are entitled to punish their children but they must not abuse this right by punishing their children beyond the limits of correction [normal discipline]’.

Based on Article 158 of the new Islamic Penal Code, approved on 21 April 2013, measures to discipline or protect minors undertaken by their parents and legal guardians and caregivers are not considered as crimes and are not punishable provided that such action is in the range of conventional and be necessary for discipline and protection. ³⁹

The problem with these provisions is that they recognize corporal punishment as a right for parents and guardians without providing necessary and adequate protection for children. It seems that in these regulations, the principle of best interests of the child was not considered, as it is required.

The Legal Situation of Children Born Outside of the Legal Marriage

After considering a parent’s custody right, another significant question which arises is that whether the mentioned right is only valid for legitimate parents, or if a child given birth out of legitimate and juridical marriage structure, if the natural parents (against the legal parent) shall not have such responsibility? In other words, is the parent’s custody right only accrued for legitimate children? Do natural children have such right too?

In order to answer this question reference to a general rule in Islamic jurisprudence is necessary. Article 1167 of Iran’s Civil Code states ‘A child born of adultery shall not belong to the adulterer’. One of the consequences of this has been expressed in Article 884 of Civil Code, prescribing ‘An adultery child does not inherit from their parents and relatives’. Therefore, in general it can be implied that natural parents do not have any responsibility for the born child from an illegitimate relation. For instance, they are not obliged to legally register his/her birth and provide legal documents such as birth certificate. However, this issue has always been argued as to why a child who does not have any role in his/her parent’s illegitimate and unmoral action should be sacrificed and get excluded from his/her own rights. Some law professors and judges have been trying to find a solution to this issue. For example, they refer to a Quranic principle which says ‘No bearer of burdens will bear the burden of another’ ⁴⁰ or the Prophet’s statement ‘There must be neither harm nor the imposition of harm’. ⁴¹ Finally, the board of the supreme court in public vote for unity of procedure number 417, dated 24 June 1997, with reference to a fatwa ⁴² of the founder of Islamic Republic, applying materials of public registration law and with regard to the fact that a statutory rapist fathered a child, bound him to all tasks related to the father of the child. The vote for the reference article of the law related to Unity of Procedure Judicial Act of June 1949 is imperative for branches of supreme court and the lower courts in similar cases as at present, under human rights regime in Iran, the natural father is bound legally for taking birth certificates for children and undertaking all necessary legal action. There is currently no difference between the children born of legitimate and illegitimate relationship.

This fatwa and similar jurisprudential opinions can be considered as some examples of capacity of Ijtihad to support children’s right in general, and to implement the principle of the best interests of the child in more cases, in particular.