Kuwait Court of Cassation principle number 566

Summary: - Disagreement between the female custodian and the ward’s guardian on matters other than his care, such as directing him toward a type of education or trade. The decision rests with the guardian. The basis thereof. - A father’s guardianship over his children is restricted by consideration and their interests. He must raise them according to his financial and social circumstances and the custom of his time. - The judge has general guardianship and may supervise holders of special guardianships. If one of them exceeds the limits of his guardianship, the judge may withdraw, restrict or limit that guardianship and disregard any act by the guardian that prejudices the minor’s interests. - The trial court’s authority to understand the facts and assess the evidence in the action. Its condition: that it base its judgment on sound reasons. The challenged judgment’s conclusion denying abuse by the father in transferring his children from private to public schools, which leads to disruption of their education and causes them serious harm, although he had initially enrolled them in private schools before divorcing their mother and disagreeing with her. Contradiction of what is established in the papers and deficient reasoning leading it into error in applying the law, requiring its cassation. Rule: It is established in this Court’s case law that, in principle, if the female custodian and the ward’s guardian disagree on matters other than his care, such as directing him toward a particular type of education or trade, the decision rests with the guardian, as stated in the explanatory memorandum to Law No. 51 of 1984 concerning Personal Status. However, a father’s guardianship over his children is restricted by consideration and their interests, and he must raise and educate them according to his financial and social circumstances and the custom of his time. The judge has general guardianship and is entitled to supervise holders of special guardianships. If one of them exceeds the limits of his guardianship, the judge may withdraw, restrict or limit that guardianship and disregard any act by the guardian that prejudices the minor’s interests. Although assessing the extent of a guardian’s observance of his child’s interests, when disputed, rests with the trial court by virtue of its authority to understand the facts and assess the evidence in the action, this is conditional on its having based its judgment on sound reasons. Accordingly, the challenged judgment set aside the first-instance judgment and dismissed the action on the conclusion that there was no abuse on the part of the first respondent requiring withdrawal of his educational guardianship over his children, and that transferring them from private to public schools would not harm them. In doing so, it disregarded the import of the appellant’s defence that this would disrupt the minors’ education, causing them serious harm, and that the first respondent was the one who enrolled them in this type of education, which conclusively demonstrates that his means were sufficient for it, particularly as he works as a professor at the Faculty of Medicine. Despite the appellant having paid their school fees for the current year, he transferred them from private to public schools after divorcing the appellant and disagreeing with her, without this act achieving any interest accruing to their minors. It therefore contradicted what is established in the papers and was tainted by deficient reasoning that led it into error in applying the law, requiring its cassation on this ground without any need to examine the remaining grounds of appeal.