The Custody of Disabled Children in Islam and International Human Rights

With the evolution of the governing approach to the rights of disabled people, from welfare rights and granting case-by-case privileges to the rights-oriented of disabled people, a model of custody of disabled children has been formulated that is aligned with jurisprudential concepts. Therefore, the current research was conducted with the purpose of comparative investigation of the custody of disabled children in Islam and international law in an analytical-documentary way. The results of the investigations showed that custody has gone out of the scope of interpersonal relations (owner, guardian and parent) and has changed to an area that can be originally and primarily monitored and it refuses the one that exceptionally requires supervision. In addition, the principle of expediency refers to the precondition of the actions of the judge and not only the absence of corruption and the necessity of the expediency being evident and monitoring the expediency in all stages (including the purpose of the actions of the judge and the result of the actions) is one of its characteristics. This approach of Islamic jurisprudence is somewhat incompatible with the approach of the Convention on the Rights of Disabled Persons since according to the convention, the best interpretation of the will and preferences of the disabled person should be replaced by the determination of his best interests by the guardian. Therefore, the principle of independence and participation of a disabled child is in conflict with the recognition of expediency for him; especially, the problems related to the legal value of the child's speech will affect the nature and quality of his participation. Furthermore, other questions such as the accuracy or inaccuracy of attributing the legal act formed after participation to the disabled child and as a result the refusal or the possibility of dissolving the legal act (during childhood or after puberty) in human rights, require jurisprudential re-examination.