Lebanon’s patriarchal religious courts fail each day to promote and protect the best interests of children. Fathers are given the upper hand in child custody cases, regardless of what is best for the child. Important changes, at both the international and local levels, should be applied to ensure the well-being Lebanese children.
To have a better understanding, it is important to note these key points:
Lebanon should dissolve all religious courts and should implement civil law when it comes to family affairs. That civil law would allow civil marriage to protect individuals from the injustice and discrimination perpetuated by religious courts. That civil law would also establish child custody based on the best interest of the child and not based on the gender of the parent.
Lebanon should amend article 845 on the Code of Civil Procedure. This law allows a child to be forcibly removed from a parent’s custody. The article should protect the child’s interest and should not be used as a tool of revenge and spite during a divorce.
Lebanon should become a member party to the Hague Convention on the Civil Aspects of International Child Abduction and ensure compliance by, for example, making international parental child abduction a crime. Lebanon should establish extradition agreements with other members of the Convention to hold child abductors accountable.
Lebanon should comply with the terms of the CRC and place the children’s interest as the primary consideration and allow children to have a say on who they want as their custodian. The custody laws should be changed to align with this.
The Lebanese Constitution allows the 18 different religious communities in Lebanon to make their own decisions regarding family law. Today 15 separate family laws are in force in Lebanon and are administered by separate religious courts.
Civil marriage is not available in the country, but it can be recognized if the marriage took place abroad. In that case, issues and disputes relating to the family are brought before a civil court where a judge will apply the law of the country where the civil marriage took place. If a couple has had both civil and religious wedding ceremonies, religious law is followed. Furthermore, if both spouses are Shia, Sunni, or Druze, their foreign civil marriage will not be recognized in Lebanon. Shia, Sunni, and Druze courts will apply their own rules in these instances.
Family laws differ depending on the religious sects, except for some Christian sects that have the same laws. Nonetheless, when it comes to custody laws, regardless of the sect, the father seems to have an advantage.
If the parents are from two different religious sects, family legal decisions will be decided by the religious court of the father’s sect.
Alongside the concept of custody, religious courts recognize the concept of “guardianship,” which entails the preservation and upbringing of children and their assets until they reach adulthood. Across religious laws except for the Armenian-Orthodox personal status law, the right of guardianship both during marriage and after is granted to the father who is recognized as the peremptory moral and financial guardian of his children.
This means that even if mothers have physical custody of their children, only fathers (and their close male relatives in the case of his death) have legal authority over the children. Only fathers are able to perform basic legal or bureaucratic tasks for the children. Mothers cannot get their children government IDs, open bank accounts for them, and sometimes even register them at school. Children cannot travel with their children unless the father, even a divorced father, provides permission.
Parental child abduction is not a crime in Lebanon. In reality, the lack of proper family law measures indirectly encourages parental child abduction. As stated above, there is no unified civil law in Lebanon, and family law differs by sect.
Maternal custody rights, unlike paternal guardianship rights, are time-bound, conditional, and revocable. This means mothers are only given custody of their children until a certain age regardless of what is best for their children and custody can be taken away from her if she is deemed ‘unfit.’
The standards set for mothers when it comes to custody are unjust and not applied to fathers. This results in many women who are afraid to seek divorce due to concerns about losing custody of their children. Human Rights Watch’s review of court cases found that in many cases judges removed children from their mothers, but not their fathers. This was often due to courts finding the mother’s behavior “questionable,” because she is from a different religion than the father or because she remarried. Forcibly removing children from their mother’s custody is allowed and protected by article 845 of the Code of Civil Procedure.
The Internal Security Forces (ISF) can raid homes to hand over children to the other parent. These scenarios usually occur after a mother is most of the time unfairly judged unfit by a court to raise her children. On the other side of the spectrum, men are deemed “unfit” in extreme cases such as alcoholism or addiction. Additionally, fathers do not lose custody if they decide to remarry. Finally, even though mothers might have physical custody of their children, the guardianship or parental authority stays in the hands of the fathers. In some sects, even if the father passes away, parental authority is passed onto one of his male relatives and never to the mother.
From this, it is clear that the unequal legal structure does not prevent parental child abduction, but it rather promotes it by granting almost absolute power to the father when it comes to custody ruling.
Lebanon is not a party member of the Hague Convention on the Civil Aspects of International Child Abduction; the country thus does not recognize international parental child abduction as a crime. By opting out of the Hague convention, Lebanon denies any other country to organize the return of its children kidnapped to Lebanon.
Lebanon currently has two bilateral agreements to facilitate the resolution of international parental abduction cases. In 2004, the United States and Lebanon signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. However, it clearly was not effective enough as the United States called out Lebanon in 2020 for demonstrating a pattern of noncompliance by persistently failing to work with the United States to resolve abduction cases. In 2019, only 4 out of 15 reported cases of international parental abduction were resolved.
Similarly, in 2009 Lebanon and Australia signed the Cooperation on Protecting the Welfare of Children, to protect children with dual citizenship. One of the aims of this agreement is to help with the resolution of international parental child abduction cases. Nonetheless, Lebanon does not have any binding agreement to protect children from such crimes. The country also does not recognize nor enforce foreign custody orders as the religious courts have jurisdiction over the custody cases. This allows Lebanese fathers to either abduct their children to Lebanon after a divorce overseas or to prevent the mother and children from leaving the country after a divorce. In these cases, an appeal to a civil court can be done, but that process takes time. It can take at least two years for the request to be accepted, and might not be fruitful due to the conflict over the jurisdiction.
Some of the most notorious cases of international parental child abduction include:
Sally Faulkner, an Australian national with two children abducted to Lebanon in 2015. The father took the children on vacation to Lebanon and then refused to return them. She tried to return her children to her homeland but was unsuccessful.
Layale Khalifeh a Canadian citizen whose seven-year-old son was abducted to Lebanon in 2014 by her ex-husband after he had convinced her to send the son to the country for a vacation. Khalifeh was finally reunited with her son in 2015.
Rachel Smith of the USA was reunited in 2018 with her four-year-old son who had been kidnapped to Lebanon by her ex-husband. This is the first time the Lebanese authorities have ever enforced a US arrest order.
It is important to note that little to no information is available about parental alienation cases in Lebanon. Nonetheless, Lebanon’s different family laws could indirectly promote parental alienation due to the structure of the custody orders. Children are estranged from a parent for years without contact sometimes. This leaves room for manipulation by the other parent. Also, the questionable reasons that courts use to find a mother unfit can be used by the father to alienate the children from their mother.
Since there are no government prevention measures in Lebanon, parents who are concerned about a possible parental abduction are advised to:
Thanks to Sana Farajalla and Hala Al Maneh for contributing to this country page.