Cassation No

1) Personal status. Schools. Reconciliation contract. Family Guidance Committee. The force of the writ of execution. Guardianship. Trial court “its discretionary authority.” Defense: “What is not considered a breach of the right of defence.” Ruling: “Error in application of the law.” Reversal “acceptable reasons.”

- The father or other guardians of a child in custody are mandated to attend to the child's affairs and play an active role in disciplining, guiding, and educating the child.

- The father holds the right to decide on the schools for the child's education, whether governmental or private.

- A reconciliation contract is a consensual agreement that resolves conflicts and hostility between parties, mutually agreed upon to bring about resolution.

- When recorded before the Family Guidance Committee as signed by the parties and approved by a judge, a reconciliation holds the force of a writ of execution. It is not subject to appeal unless it violates legal provisions, and no party may challenge, annul, or amend it. Reason for that?

- Guardianship is recognized as a right bestowed upon the child by their parents, constituting one of their joint responsibilities as long as the marriage persists. It reflects the intricacies of Islamic law, designed to preserve, care for, and nurture the child.

- The assessment of the child's interests in custody is a factual matter within the jurisdiction of the trial court without any further review, and its rulings are considered valid as long as they are grounded in valid reasons.

- The trial court is not bound to follow the parties in their various statements and arguments, provided it clearly articulates the legal basis for its decisions and provides responses refuting any arguments that contradict it.

- An example of flawed reasoning for transferring children in custody from schools.

2) Reversal “its effect”.

- Reversing all or part of the ruling. Its effect: the court reconsiders the merits of the case. The basis for that?

1- Whereas it is prescribed as per the ruling of this court that father or other guardians of the child bear the responsibility of overseeing the child's affairs, providing discipline, guidance, and education. The guardian, entrusted with the well-being of the minor, is obligated to supervise all aspects of the child's life, including preservation, upbringing, discipline, life direction, and preparation for a positive and virtuous life. Additionally, the guardian has the authority to determine the educational institution, whether government or private, in a manner deemed appropriate within the framework of Islamic Sharia, laws, and customs in the United Arab Emirates. This oversight is conducted under the general jurisdiction of the judge, with the father retaining the right to choose the schools for the child's education, whether governmental or private.

However, it is established in both Islamic Sharia and the law that reconciliation is a consensual contract, serving as a means to resolve disputes between parties through mutual agreement. The foundation for reconciliation lies in the verses of the Almighty, Glory be to Him, the Most High, from the one who particularly in Surat An-Nisa, (And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them - and settlement is best. And present in [human] souls is stinginess. But if you do good and fear Allah - then indeed Allah is ever, with what you do, Acquainted. (128)

You will never be able to treat women with equal fairness, no matter how much you desire it. Do not be so biased as to leave another suspended. If you make amends and act righteously—Allah is Forgiving and Merciful. (129).

Moreover, the Prophet Muhammad (may God’s prayers and peace be upon him, his family, and his companions) emphasizes that (reconciliation is permissible among Muslims, except in cases where reconciliation involves prohibitions on what is lawful or permissions for what is forbidden. Muslims are bound by the conditions of reconciliation, except for conditions that contravene Islamic principles regarding lawful and forbidden matters.)

Article 16/2 of the Personal Status Law explicitly states that if reconciliation is achieved between the parties before the Family Guidance Committee, the reconciliation shall be documented in a report signed by the involved parties and approved by the judge. This documented reconciliation carries the weight of a writ of execution and is immune from challenge through any means of appeal, except in cases where it violates the provisions of the law. Therefore, once this contract is concluded between the parties and deemed valid, enforceable, and binding, no party has the permission to challenge, annul, or amend it. The contract, being the result of an offer made by one party and accepted by the other, solidifies their agreement in a manner that substantiates its impact on the individuals involved, obligating each party to fulfill their commitments. As highlighted by Judge Abu Bakr Muhammad bin Asim Al-Andalusi Al-Gharnati, may God have mercy on him, in Al-Tuhfa, it is impermissible to annul a reconciliation, even when agreed upon, as a reconciliation is binding by force.

Given the circumstances, the reconciliation contract entered into by the two parties, which specifically addressed the agreement on schools and the education of the daughters (Names), was valid, consensual, documented, and approved by the judge in the best interests of the daughters. In light of this, neither party possesses the right to unilaterally withdraw from, annul, or amend the agreement. This is particularly emphasized as the agreement holds the status of a writ of execution document.

Islamic Sharia acknowledges that guardianship is a right owed to the child by the parents, constituting a joint responsibility as long as the marriage between them endures. This obligation reflects the intricacies of Islamic law, designed to ensure the preservation, care, and proper upbringing of the child, adhering to the command of the Creator. Islam places significant emphasis on the family, inclusive of all its members, and provides proactive solutions to anticipated problems, alleviating their potential burdens and consequences. Islamic law, being attentive to the continuity and structure of the family, offers provisions that address the educational and emotional needs of children. The Sharia's concern for children aligns with their well-being, and the assessment of the child's interest falls within the realistic matters that the trial court has the authority to evaluate without further review, as long as its ruling is grounded in valid and sufficient reasons. In this context, the trial court is not obliged to follow the parties in their various statements and arguments, provided it clarifies the legal rule on which it relies and presents responses refuting any violations. However, the contested ruling failed to consider these principles, thereby violating the law, necessitating its reversal.

2- Whereas it is outlined in Article Thirteen of the Personal Status Law No. 28 of 2005, if the Court of Cassation reverses all or part of the contested ruling, it shall address the merits of the case.

The Court

Whereas in the facts, the respondent plaintiff Ali...... filed a lawsuit before the court of first instance seeking a ruling to transfer his daughters (Names), who are nine, eight, and five years old, from private schools to government schools. Additionally, he requested a court order to prohibit the appellant (Name) from discussing this matter with the girls.

The court of first instance, in a session dated 6/8/2019, ruled to reject the case. The respondent appealed this ruling, and in a session dated 17/12/2019, the Court of Appeal overturned the initial decision, granting the respondent the right to transfer his daughters (Names) from private schools to public schools.

In response to the contested ruling, the appellant filed an appeal in cassation. Subsequently, the appeal was presented to the Council Chamber, where the panel found the cassation valid for consideration and scheduled a session to review it. Both parties were duly notified of the upcoming session.

Whereas the appellant objects to the contested ruling citing an error in the application of the law and provisions of Islamic Sharia. The appellant argues that the ruling erroneously affirmed the respondent's right to transfer the girls to another school, which allegedly contradicts the terms of the reconciliation contract No. 1787-2018, dated 5/9/2018. This reconciliation contract was documented before the Family Guidance Committee in Sharjah.

Furthermore, the appellant contends that the court failed to consider the best interests of the foster children while making this decision. As a result, the appellant insists that the ruling should be reversed based on these grounds.

The objection raised by the appellant holds merit, since Whereas it is prescribed as per the ruling of this court that father or other guardians of the child bear the responsibility of overseeing the child's affairs, providing discipline, guidance, and education.

The guardian, entrusted with the well-being of the minor, is obligated to supervise all aspects of the child's life, including preservation, upbringing, discipline, life direction, and preparation for a positive and virtuous life. Additionally, the guardian has the authority to determine the educational institution, whether government or private, in a manner deemed appropriate within the framework of Islamic Sharia, laws, and customs in the United Arab Emirates. This oversight is conducted under the general jurisdiction of the judge, with the father retaining the right to choose the schools for the child's education, whether governmental or private.

However, it is established in both Islamic Sharia and the law that reconciliation is a consensual contract, serving as a means to resolve disputes between parties through mutual agreement. The foundation for reconciliation lies in the verses of the Almighty, Glory be to Him, the Most High, from the one who particularly in Surat An-Nisa, (And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them - and settlement is best. And present in [human] souls is stinginess. But if you do good and fear Allah - then indeed Allah is ever, with what you do, Acquainted. (128)

You will never be able to treat women with equal fairness, no matter how much you desire it. Do not be so biased as to leave another suspended. If you make amends and act righteously—Allah is Forgiving and Merciful. (129).

Moreover, the Prophet Muhammad (may God’s prayers and peace be upon him, his family, and his companions) emphasizes that (reconciliation is permissible among Muslims, except in cases where reconciliation involves prohibitions on what is lawful or permissions for what is forbidden. Muslims are bound by the conditions of reconciliation, except for conditions that contravene Islamic principles regarding lawful and forbidden matters.)

Article 16/2 of the Personal Status Law explicitly states that if reconciliation is achieved between the parties before the Family Guidance Committee, the reconciliation shall be documented in a report signed by the involved parties and approved by the judge. This documented reconciliation carries the weight of a writ of execution and is immune from challenge through any means of appeal, except in cases where it violates the provisions of the law. Therefore, once this contract is concluded between the parties and deemed valid, enforceable, and binding, no party has the permission to challenge, annul, or amend it. The contract, being the result of an offer made by one party and accepted by the other, solidifies their agreement in a manner that substantiates its impact on the individuals involved, obligating each party to fulfill their commitments. As highlighted by Judge Abu Bakr Muhammad bin Asim Al-Andalusi Al-Gharnati, may God have mercy on him, in Al-Tuhfa,

it is impermissible to annul a reconciliation, even when agreed upon, as a reconciliation is binding by force.

Given the circumstances, the reconciliation contract entered into by the two parties, which specifically addressed the agreement on schools and the education of the daughters (Names), was valid, consensual, documented, and approved by the judge in the best interests of the daughters. In light of this, neither party possesses the right to unilaterally withdraw from, annul, or amend the agreement. This is particularly emphasized as the agreement holds the status of a writ of execution document.

Islamic Sharia acknowledges that guardianship is a right owed to the child by the parents, constituting a joint responsibility as long as the marriage between them endures. This obligation reflects the intricacies of Islamic law, designed to ensure the preservation, care, and proper upbringing of the child, adhering to the command of the Creator. Islam places significant emphasis on the family, inclusive of all its members, and provides proactive solutions to anticipated problems, alleviating their potential burdens and consequences. Islamic law, being attentive to the continuity and structure of the family, offers provisions that address the educational and emotional needs of children. The Sharia's concern for children aligns with their well-being, and

the assessment of the child's interest falls within the realistic matters that the trial court has the authority to evaluate without further review, as long as its ruling is grounded in valid and sufficient reasons. In this context, the trial court is not obliged to follow the parties in their various statements and arguments, provided it clarifies the legal rule on which it relies and presents responses refuting any violations.

However, the contested ruling failed to consider these principles, thereby violating the law, necessitating its reversal.

Whereas it is outlined in Article Thirteen of the Personal Status Law No. 28 of 2005, if the Court of Cassation reverses all or part of the contested ruling, it shall address the merits of the case.