Support from Islamic sources

• Islamic texts teach that, from the time they are in their mothers’ wombs, parents have the legal responsibility to raise their children and secure their growth in its various aspects: physical, intellectual, spiritual and moral. It is the responsibility of the parents to provide financial maintenance for the children. Surah al-Baqarah 2:233 states to this effect: ‘He (the father) shall bear the cost of their food and clothing on equitable terms … No mother shall be treated unfairly on account of her child. Nor father on account of his child.’
  
  
• The Qur’an does not make a distinction between fathers and mothers where the upbringing of children is concerned. Even parents who are divorced should still have ‘mutual consent and due consultation’ (Surah al-Baqarah 2:233) with each other regarding the upbringing of their children.
  
  
• Loss of custody on the ground of the mother’s remarriage is based on a hadith of the Prophet (s.a.w.), where he said to a divorced wife, ‘You have the first right to look after [your child] unless you marry’. It is possible to interpret this hadith as conferring upon the mother a prior right of custody over her young children before her remarriage, and if she remarries, than the mother and the father would have equal rights to custody, and the case should be considered on its individual merits.
  
  
• Guardianship should be seen as a measure by which the exercise of the responsibilities of hadanah, in its wider sense, may be facilitated. The special bond between a mother and her child, mainly the result of the natural connection during pregnancy, is probably a sound basis to assign to mothers the primary role of hadinah (custodian). However, this should not negate the role of fathers in this respect, nor should the role of mothers be limited to the physical care of infants. The Hadith of the Prophet (s.a.w.) elevating mothers over fathers is not reflected in guardianship laws if important decision-making is left exclusively to the fathers.

Support from universal human rights standards

• International human rights instruments establish both mother and father as equal partners in the family, with the same parental rights and responsibilities for their children. The Convention on All Forms of Discrimination Against Women (CEDAW) requires States parties to the Convention to ensure men and women ‘the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount’ (article 16(1)(d)). Article 16(1)(f) of CEDAW requires equality between men and women with regard to guardianship of children: ‘The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount’.
  
  
• The CEDAW Committee has stated, ‘States parties should ensure that by their laws both parents, regardless of their marital status and whether they live with their children or not, share equal rights and responsibilities for their children’. Allowing women and men to share custody and guardianship, and requiring the party who can best support the child continue to do so, conforms to the principles of non-discrimination and substantive equality that form the foundation of CEDAW. The CEDAW Committee has also stated that article 16 is a core provision of the Convention, and that States parties who have reservations to any of the provisions of article 16 should progress to the point where they can withdraw such reservations.
  
  
• The Convention on the Rights of the Child (CRC) also provides for the protection of children and their right to be raised and brought up by both parents. A basic principle in the CRC is that the best interests of the child shall be the paramount consideration. Article 3(1) states, ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. This applies to the Government when it is drafting the maintenance, custody and guardianship laws and to the courts in implementing those laws. For instance, child cannot be taken away from his or her mother simply because she remarries if it is against the child’s best interest.
  
  
• The CRC also requires that both parents play an equal role in raising their children. Article 18(1) states, ‘States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern’. This principle protects both the rights of the children to have mothers and fathers involved in their well-being and the rights of the mothers and fathers to be active in nurturing and educating their children.

Support from national constitutions, laws and policies

► Because constitutions, laws and policies differ dramatically between countries, NGOs, activists, lawyers, academics and government officials should examine the laws and policies of their own countries to determine how to use these to promote equality in the family.

Support from social and cultural realities

• Children’s emotional, material and psychological well-being is significantly disrupted by their parents’ divorce. The deciding factor relating to issues of custody should be based on the children’s needs and best interest as opposed to assumptions based on fixed gender roles.
  
  
• Statutory provisions that name the father as the sole guardian of children could be derived at least in part from colonial laws. In pre-Victorian England, the mother’s role was not recognised at all, with the law providing that ‘an unweaned child may be torn from its mother’s bosom, and deprived by a father’s will of its mother’s milk’. Under the Victorian Custody of Infants Act, the law was modified to allow the court, at its discretion, to order that a child under seven years of age be placed in the custody of the mother. Upon the child reaching the age of seven, custody reverted to the father. Placing children under the age of seven with the mother might have been to the advantage of the father, since the mother would have ‘all the care, trouble and anxiety of their helpless infancy’, while the father was relieved from such care and trouble, but could automatically claim custody after the end of the seven years. The father’s rights continued even after his death, as he had the sole right to name a testamentary guardian.
  
  
• Traditionally, the legal guardians were persons associated with responsibility for the children’s maintenance. However, the actual situation in the present day realities is that the mother often has to contribute towards the family needs, even if it is not her legal duty to do so, and divorced or widowed mothers often face difficulties in obtaining financial assistance from the ex-husband or his relatives.
  
  
• Adherence to the principle of equality between women and men implies joint responsibility for the children with respect to raising minor children, managing their assets and representing them in legal matters. In reality, women already fulfil the various guardianship functions to the same degree as men, if not more. Women contribute to supporting and raising the children in concrete ways: they serve as the contact with school or other institutions, provide emotional support and contribute to their material needs. There are no valid justifications why Muslim mothers should be denied their right to manage the affairs of their children.
  
  
• In cases of divorced parents, the custodial parent is in a better position, logically and practically, to exercise parental responsibility, thereby assuming joint guardianship over the children with the non-custodial parent. Particularly in instances of abandonment, or where the father has severed ties with the mother and child(ren), the legal incapacity faced by mothers to administer their minor child(ren)’s affairs can cause massive complications in daily life. For example, during relocation, moving schools or even going overseas for a holiday, official documents need to be signed, and without guardianship it is more difficult to do so.
  
  

Examples from various countries

• Tunisia: Both parents have equal rights in custody and guardianship during marriage and the court decides custody in the best interest of the child in the event of divorce. If custody goes to the mother, she exercises the authority of guardianship in relation to the child’s travel, education and financial affairs.
  
  
• Turkey: In the event of separation or divorce, the rules regarding custody and guardianship do not discriminate between the father and the mother. The judge awards custody to whichever parent will best look after the child.
  
  
• Cameroon and Central Asian Republics: Custody and guardianship can be given to either parent, with the best interest of the child as the paramount consideration.
  
  
• United Kingdom: A new standard Muslim marriage contract launched in August 2008 by The Muslim Institute with the support and endorsement of religious leaders, community organisations and women’s groups across the country states that mutual rights and obligations of the husband and wife include ‘procreation and raising of any children by mutual consultation’.