Articles 3, 9 and 18 of the Convention enshrine the best interests of the child, non-separation from parents except when necessary, and the common responsibility of both parents. A reading of the gap between Moroccan practice and these commitments.
The Convention on the Rights of the Child, adopted by the United Nations General Assembly in 1989, is the international reference framework for protecting children's rights and guaranteeing their development in a safe and balanced family environment. Among the articles that enshrine this right and affirm the common responsibility of both parents, articles 3, 9 and 18 bear directly on parental exclusion after separation and the resulting deprivation of a parent — most often the father, in the Moroccan and Arab context.
1. Article 3 – the principle of the best interests of the child
Article 3 provides that the best interests of the child shall be a primary consideration in all decisions of administrative and judicial authorities and of public or private institutions. It is the cornerstone of every child-protection policy. Yet in Moroccan divorce practice these "best interests" are sometimes interpreted narrowly or one-sidedly: it is automatically presumed that giving custody to the mother is in the child's interests, without examining each situation, without considering his psychological and emotional needs or the importance of a regular relationship with his father. Excluding the father six days out of seven and reducing his role to a formal one-day visit cannot comply with this principle: it impoverishes the child emotionally and educationally, and deprives him of half his family affection and of the paternal model he needs for his balance.
2. Article 9 – no separation of the child from his parents, except in absolute necessity
Article 9 obliges States parties to ensure that a child is not separated from his parents against their will, unless the competent authorities decide that such separation is necessary in his best interests — neglect, violence, serious danger. Yet what happens in practice after divorce is an almost permanent separation between the child and one of his parents (usually the father), without any danger justifying it, because of rigid provisions that automatically award custody to the mother and make the right of visit limited and fragile, easy to neutralise without effective sanction. Depriving a child of the bond with his father directly violates article 9, and the absence of practical mechanisms to enforce visiting orders empties the texts of their substance.
3. Article 18 – the common responsibility of both parents
Article 18 affirms that both parents have common responsibilities for the upbringing and development of the child, and requires States to take the legislative and administrative measures needed so that each can exercise their responsibilities on an equal footing, during marriage as after separation. Moroccan reality reveals an obvious contradiction: custody is awarded automatically to the mother, the father is sidelined from school, medical and educational follow-up and from decisive decisions despite a legal guardianship that remains a dead letter, while the law leaves him only the maintenance obligation, as if his role were reduced to the financial side.
4. What the reform requires
These three articles show that Moroccan law, in its current version and practice, calls for an overall revision to remain consistent with the Kingdom's international commitments, in particular:
- redefining the best interests of the child comprehensively, including his right to balanced parental care from both parents;
- enshrining shared custody and joint guardianship as the legal basis after separation, in place of sole custody;
- activating mechanisms to monitor and enforce visiting orders in order to protect the child's right to the bond and to permanent contact with his father;
- integrating a human-rights-based approach into judicial and social policies on children and the family.
Today the father must go through long procedures to establish the deprivation, and generally obtains a final criminal judgment against the recalcitrant custodian only after years, without any emergency measure protecting the child's right to see his father. Years of the child's life slip by, and judgments — when they come — are only a symbolic remedy for irreparable harm. In the end the judge may be forced to withdraw custody from the mother and award it to the father: the child is then punished twice, deprived of his father during the conflict, then of his mother after the judgment. Is that really the best interests of the child enshrined in national law and international conventions? The father is not a visitor in his children's lives: he is a pillar of their psychological and emotional balance.