Treat Children Fairly

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Treat Your Children Fairly


Priase be to Allaah, and peace and blessings be upon His Messenger Muhammad and upon his family and companions.<?XML:NAMESPACE PREFIX = O /><O:P> </O:P>
Allaah has enjoined upon children to honour and respect their parents. He has made the parents’ rights very great and has connected duties towards to parents to duties towards Him and the obligation to worship Him alone (Tawheed). Allaah says (interpretation of the meaning):<O:P> </O:P>

“Worship Allaah and join none with Him (in worship); and do good to parents…” [al-Nisaa’ 4:36]<O:P> </O:P>

And Allaah has given the children rights over their parents, such as education and a good upbringing, spending on their needs, and treating them fairly.<O:P> </O:P>

One of the bad social phenomena that are to be found in some families is the lack of fair treatment towards the children. Some fathers and mothers deliberately give gifts to some of their children and not others. According to the correct view, this is a haraam action, unless there is some justification for it, such as one child having a need that the others do not have, e.g., sickness; debt; a reward for memorizing the Qur’aan; not being able to find work; having a large family; full-time studies, etc. The parent should have the intention – when giving something to one of his children for a legitimate (shar’i) reason – that he will do the same of any of his other children should the need arise. The general evidence (daleel) for this is the aayah (interpretation of the meaning):<O:P> </O:P>

“Be just: that is nearer to piety; and fear Allaah.” [al-Maa’idah 5:8].<O:P> </O:P>

The specific evidence is the hadeeth narrated from al-Nu’maan ibn Basheer (may Allaah be pleased with him), who said that his father brought him to the Messenger of Allaah <!--#include virtual="/saws.htm" -->(peace and blessings of Allaah be upon him) and said: “I have given this son of mine a slave that I had.” The Messenger of Allaah <!--#include virtual="/saws.htm" -->(peace and blessings of Allaah be upon him) said: “Have you given something similar to all of your children?” He said, “No.” So the Messenger of Allaah <!--#include virtual="/saws.htm" -->(peace and blessings of Allaah be upon him) said: “Then take (the slave) back.” ( May Allaah bless our Prophet Muhammad Narrated by al-Bukhaari; see al-Fath, 5/211). According to another report, the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Fear Allaah and be fair to your children.” He said: so he came back and took his gift back. (al-Fath, 5/211). According to another report, “Do not ask me to bear witness to this, for I will not bear witness to injustice.” (Saheeh Muslim, 3/1243).

A male should be given the share of two females, as is the case with inheritance. This is the view of Imaam Ahmad (may Allaah have mercy on him) (Masaa’il al-Imaam Ahmad li Abi Dawood, 204). Imaam Ibn al-Qayyim explained it in detail in his footnote on Abu Dawood. Anyone who looks at the state of affairs in some families will note that some of those parents who do not fear Allaah favour some of their children over others when it comes to gift-giving.

This fills the hearts of the children with hatred towards one another and sows the seeds of enmity. A father might give gifts to one child because he (the child) resembles his paternal uncles, and withhold gifts from another because he resembles his maternal uncles; he might give to the children of one wife things that he does not give to the children of another; or he might put the children of one wife but not the children of another into private schools.

This will backfire on him, because in many cases the child who has been deprived will not honour his father in the future. The Prophet (peace and blessings of Allaah be upon him) said to the man who had preferred one of his children over others in giving him a gift: “Would you not like all of them to honour you equally?” (Narrated by Imaam Ahmad, 4/269; Saheeh Muslim, no. 1623).
One of the Salaf said: “Their rights over you are that you should treat them all fairly, and your right over them is that they should honour you.”

Another way in which parents fail to treat their children fairly is when they bequeath something in their will to some of their children, or they give them more than the share allocated to them by sharee’ah, or they deny some of their children their inheritance. Some women bequeath their gold to their daughters and not their sons, despite the fact that it is a part of the inheritance, or a woman might state in her will that a gift given to her by one of her children should be given back to him after she dies, claiming that she is being kind to him just as he was kind to her.

All of this is not permitted, because there is no bequest to an heir [i.e., one cannot bequeath something to one of the heirs whose share is dictated by sharee’ah]. Whatever was a part of the possessions of the mother or father who has died belongs to all the heirs and is to be shared out according to the laws enjoined by Allaah.
Each parent should remind the other if he or she is not being fair and should stand firm on this issue, so that justice will be established. This includes referring matters to scholars as is indicated in the report which follows the hadeeth of al-Nu’maan ibn Basheer who said:

“My father gave me some of his wealth, and my mother ‘Amrah bint Rawaahah said: ‘I will not accept this until you ask the Messenger of Allaah (peace and blessings of Allaah be upon him) to bear witness to it.’ So my father went to the Prophet (peace and blessings of Allaah be upon him) to ask him to bear witness to the gift he had given me. The Messenger of Allaah (peace and blessings of Allaah be upon him) said to him, ‘Have you done this for all your children?’ He said, ‘No.’ He said, ‘Fear Allaah and treat all your children fairly.’ So my father came back and took back his gift.” (Narrated by Muslim, no. 1623).

We ask Allaah to help us to honour our parents and to treat our children fairly, and to adhere steadfastly to our religion.


www.islamworld.net (http://www.islamworld.net)

[Coventry Sister]

Akooji Badat (Snowden Street Mosgue, Batley) asked the three major political parties what their policies would do towards helping shared parenting and treating children fairly when couples are separated or divorced.

The Conservative Party
Our country deserves a better system of family justice. One that is open, fair and accountable. One that protects children and respects parents. One that recognises, above all else, that the best parent is both parents.

Conservatives have pledged to bring fairness back to our family justice system. Our radical reform will end a system that leads children to forfeit one of their parents or relatives when couples separate. We have a practical programme that has been developed in conjunction with the legal profession, child development experts and parenting groups.

Within the first month, we will publish a bill to introduce a legal presumption of co-parenting, and a right for both parents to be involved in the upbringing of their child. We would establish the principle of reasonable contact, which would ensure that both parents should have sufficient parenting time time to build and sustain a loving relationship with their child.

Within the first week we will publish proposals to abolish CAFCASS in order to restore justice and transparency to the family court system; and the fast tracking of cases of child safety.

An open and transparent court system.
The need to protect the anonymity of children must remain, but some lifting of the cloak of secrecy would allow all those involved in the family courts to understand that it is working in the best interests of their children. The closed door policy of the family courts breeds suspicion and a culture of secrecy which does nothing to instil confidence in those using them.

Clear court-backed contact parenting time plans prepared by child development experts in conjunction with the judiciary to outline the range of beneficial post-separation parenting arrangements. These guidelines would allow parents to clearly understand the kind of contact orders the court is likely to impose in a range of scenarios, should they be unable to reach agreement. By adding certainty for parents at an emotionally raw and uncertain time and providing parents information on how judges were likely to rule in circumstances similar to their own, it would encourage them to agree out of court.

A compulsory dispute resolution and mediation process, prior to getting to court. Professionals, trained in mediation, would make parents aware of the emotional and financial costs of resorting to court. Court-approved mediators and facilitators would provide a stark explanation of the effects on the wellbeing of children, the length of time which litigation can take, and the financial implications to parents.

Family courts working to expert guidelines acknowledging that the child¹s needs are best served by frequent and continuous contact with both parents.

<HR>The Labour Party
We really tried hard to get Labour to tell us their shared parenting policies, by letter, at a meeting with Mrs Hodge, and by phone call to her office. Our first approach was well over a month before the election was announced. Unfortunately we had received nothing.

<HR>The Liberal Democrat Party
Protecting the rights of the childEngland is the last of the UK's countries to create the post of a Children's Commissioner. However, following the Government's removal of several amendments to the Children's Bill in the House of Lords, not only does the mandate of the Commissioner fall far short of international standards, but it is severely limited in terms of enforcement. The absence of an obligation to safeguard and promote the rights of children is a striking omission. It is the central aim of all 3 of the other Commissioners.

According to the Children Act 1989, the welfare of the child should be the paramount consideration in any court decision concerning a child's upbringing. We believe that this should be sustained without qualification.

In divorce and separation proceedings child custody is often a point of strong contention between both parents. Bitter battles and struggles over child custody often force ex- partners into long, expensive court proceedings that leave both parents and children upset and emotionally charged. To improve the consequences of divorce for children and their parents we must work on greater resolution before the legal stage and ensure that the rights of the child are upheld throughout.

To ensure that the best interests of the child come first when policies are proposed and reviewed where their interests are involved, we would:

* Strengthen the post of Children's Commissioner in England,
by making its power rights-based. The Commissioner will be obliged to consider the UN Convention on the Rights of the Child in safeguarding the rights, interests and welfare of children. It should be wholly independent of the Government and have real power to review existing and proposed legislation and guidance concerning children.

* Reform the system of child support. The Child Support Agency often requires parents to pay an unrealistic amount of maintenance, but has also failed to enforce those payments. We would put child maintenance payments in the hands of the effective and credible Inland Revenue so that each case is effectively dealt with according to the particular needs of the child.

- The Inland Revenue would calculate initial maintenance guidelines, administer and enforce the collection of maintenance.
- A family tribunal service, as part of an expanded Appeals Service, would allow for variation in cases and move away from the current principle of 'one size fits all'.
- We would offer incentives to parents who cooperate with their initial settlement.

* Ensure that child custody decisions are made on an individual basis,
with the best interests of the child as paramount. The focus must be on finding pre-court resolutions. We would:

- Base our approach on the principle of quality access for both parents, except where the child's safety is at risk.
- Focus on promoting pre-court early intervention schemes, where both parents can avoid damaging legal disputes by cooperating to provide for the physical, emotional and financial supportof the child.
- Reform the Children and Family Court Advisory and Support Service (CAFCASS), firstly by improving its current administrative function and then by looking at ways to involve it in the pre-court phase of custody resolution, providing much needed continuity for all involved. All attempts should be made to avoid a damaging legal dispute.
www.libdems.org.uk

[Coventry Sister]

Fatwa : Child Custody (Residence) & Contact (Access)

If and when a marriage unfortunately comes to an end, the problems of the parties involved should not in any way affect the children. Children are a trust (amanah) from Allah Most High and they should be treated and looked after in a proper manner.

They have many rights, of which two are of utmost importance: to receive proper care and love, and the other proper upbringing (tarbiyah). These rights of a child cannot be fulfilled except with the joint endeavour of the parents. The love, care and attention of the mother are just as important as the upbringing and training of the father.

In light of the above, divorce should definitely be avoided as much as possible, especially in the case where there are children involved. The Messenger of Allah (Allah bless him & give him peace) said:

“Divorce is the most hated of all lawful (halal) things in the sight of Allah.” (Sunan Abu Dawud, no. 2178)

Divorce shakes the throne of Allah therefore all avenues of reconciliation must be looked at before considering divorce. However, if divorce did take place, and both parties demand their rights, then the right of custody will be in the following way. We as Muslims must not follow the Jewish religion where custody of the children always goes to the mother regardless of the age or sex of the child. It should be remembered here that there is nothing wrong in making a mutual arrangement, as long as there is no objection from those who have a right to custody:

The mother has a right of custody for a male child until the child is capable of taking care of his own basic bodily functions and needs, such as eating, dressing and cleaning himself. This has been recognized at seven years of age. This is also the age where both parents should have “Shared Residency (Custody)” of the child.

Imam al-Haskafi (Allah have mercy on him) states:

“The custody of a male child is the right of the mother until the child is capable of taking care of his own self. This has been approximated at seven years of age, and the Fatwa (legal verdict) has been issued on this age, as normally children are able to take care of themselves at this age.” (See: Radd al-Muhtar, 3/566)

In the case of a female, the mother has this right of custody until she reaches puberty. This has been declared at nine years of age. (al-Mawsili, al-Ikhtiyar li ta’lil al-mukhtar, 3/237) This is also the age where both parents should have “Shared Residency (Custody)” of the female child.

The right of custody will be taken away from the mother if she:

1) Leaves Islam,

2) Openly indulges in sins such as adultery and there is a fear of the child being affected,

3) She does not attend to the child due to her leaving the house very often,

4) She marries a non-relative (stranger) to the child by which the child may be affected,

5) She demands payment for the upbringing of the child if there is another woman to raise the child without remuneration.

In the above cases (when the mother no longer has the right to custody), this right then transfers to the following, in order:

a) Maternal grandmother, and on up;

b) Paternal grandmother, and on up;

c) Full sisters,

d) Maternal half sisters,

e) Paternal half sisters,

f) Maternal aunts,

g) Paternal aunts,

After all the avenues of the female have been exhausted as explained by the Jurists, the males have the right of custody in the following sequence:

a) Father,

b) Paternal grandfather,

c) Real brother,

d) Paternal brother,

e) Maternal brother,

The reason for this is that, in the early years, the mother and the other female relatives are more suitable for raising the young child (regardless of sex) with love, mercy, attention, and motherly care. The male child after reaching the age of understanding (7) is in need of education and acquiring masculine traits, which is why he is then transferred to the father. The female child, after reaching the age of understanding is in need of being inculcated with female traits, which she receives by living with her mother. After reaching puberty, she is in need of protection, which the father offers.

In a Hadith recorded by Imam Abu Dawud in his Sunan, the Messenger of Allah (Allah bless him & give him peace) said to a woman who complained that her husband was intending to take her child away from her: “You are more rightful of the child as long as you don’t marry.” (Sunan Abu Dawud, no. 2276 & Mustadrak al-Hakim, 2/207)

It should also be remembered that after the transferral of custody from the mother to the father, the boy remains in the custody of the father until puberty, at which point, if he is mature and wise according to his father, he is free to choose with whom to live, or to live on his own. As for the girl, custody remains with the father until she marries. (See: Qadri pasha, Hanafi articles, 498 & 499) It is preferable to have “Shared Residency (Custody)” until the child becomes an adult unless there is an objection and the Fatwa comes into existence. Another point to note is that family lineage is through the father in Islam and therefore the child must be near to him.

Irrespective of who (mother/father) has the right of custody, the other party has visitation and contact rights according to mutual understanding and consent. Generally, the party having the rights of custody use the child as a weapon to punish the other party by depriving them of visitation and contact rights. This is totally against the concept of Islam and a severe, brutal and grave sin indeed, and also very harmful to the child. Unfortunately, many so-called “religious” people are also involved in this heinous act. Contact and relationship with both parents helps the child with their psychological and emotional needs; helps them improve their well-being, self-confidence and self-esteem; helps them share and understand their religious, cultural and ethnic background; helps correct their distorted perceptions about family relationships and makes sure they are comfortable and safe from the harmful effects of divorce. All children want to have a good relationship with both parents.

At all times, the father of the child is responsible for maintaining the child; in the case of a female, until she marries; while in the case of a healthy male, until he reaches maturity. In the case of a disabled child (male or female) the father is permanently responsible. “Anta wa-maluka li-abika” [You and your property are for your father (to use) ] said the prophet (pbuh) referring to the child’s property to help parent’s financially if difficulty arises.

When the mother has the rights of custody but does not have a shelter to stay in with the child, the father must provide shelter for both. (See: Radd al-Muhtar of Ibn Abidin).

The Human Rights Act 1998 has been fully in force in the United Kingdom since 2 October 2000. The broad effect of this Act is to require that UK Domestic Law is interpreted, and that public authorities, including CAFCASS, act in a manner that is compatible with the European Convention on Human Rights.

The European Convention on Human Rights contains "Articles". Article 9: Freedom of thought, conscience and religion states that:

· Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

· Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

If we follow the Islamic Shariah then the government agencies have to respect our religion and this Fatwa. It is important for us Muslims to refrain from jesting with the Laws of Allah; we are at all times to treat them with utmost reverence; this is the basic requirement of faith. Allah's laws of marriage and divorce are meant to safeguard us against evils inherent in our souls and restrain us from our wayward behaviours and attitudes. Therefore, in order to benefit from them, we need to apply them in accordance with their original intents and purposes. For those who have not mutually, amicably agreed in the best interests of the children and do not abide will incur the wrath of Allah.

And Allah Knows Best
Muhammad Islam
The UK Islamic Shariah Organisation, London

Fatwa updated August 2004