Removing a guardian (wasi) in Iraq: grounds and the competent court

In briefA minor's natural guardian (wali) is the father and then the court; the appointed guardian (wasi) is the person chosen by the father and then the person the court appoints, with the mother preferred in the child's interest, under articles 27 and 34 of the Minors Care Law. A wasi is removed if no longer capable or if the accounting committee recommends removal, under article 38, and article 84 of the Personal Status Law lists further cases. The court may strip a wali's guardianship for misconduct under article 32. The Personal Status Court appoints, removes and holds guardians to account under article 300 of the Civil Procedure Law.

When a father dies leaving young children, the management of their property passes to a guardian under the supervision of the courts and the Minors Care Directorate. A family member may come to believe that the guardian is neglecting the children's interest or mishandling their property, and ask how a guardian is removed. The office of lawyer Ali Barakat in Baghdad sets out here what Minors Care Law No. 78 of 1980 and the Personal Status Law say on this.

Who is the wali and who is the wasi?

Under its third article, the Minors Care Law covers a child under eighteen, an unborn child, a person under interdiction, and absent and missing persons. Article 27 provides that the child's natural guardian (wali) is the father and then the court. Article 34 defines the appointed guardian (wasi) as the person the father chooses to look after his young child or unborn child, then the person the court appoints, with the mother preferred over others in the child's interest; if there is neither, guardianship rests with the Minors Care Department until the court appoints one. A guardian chosen by the father is established by a written instrument the court approves after the father's death, under article 36.

Conditions for a wasi

Article 35 requires the wasi to be sane, adult, of full capacity and able to manage guardianship. It bars the appointment of anyone convicted of a crime against morals and honour or affecting integrity, anyone known for bad conduct, and anyone who, personally or through an ascendant, descendant or spouse, has a court dispute or a quarrel with the minor that puts the minor's interest at risk.

Grounds for removal

The two laws together give the following grounds:

Loss of capacity to act as guardian, under item one of article 38 of the Minors Care Law, and article 85 of the Personal Status Law, which treats the wasi as removed from the date a condition of capacity is lost.
A recommendation of the accounting committee of the Minors Care Directorate, under item two of article 38 and item four of article 68, where the minor's interest requires removal; the directorate then asks the competent court to remove the guardian.
The cases in article 84 of the Personal Status Law: conviction for a felony or misdemeanour against honour; a custodial sentence of a year or more; a court dispute or family quarrel between the wasi or the wasi's relatives and the minor that puts the minor's interest at risk; acts or neglect that the court sees as threatening the minor's interest; or dishonesty appearing in the accounts.

Article 83 of the Personal Status Law limits the removal of a guardian chosen by the father: the judge removes such a guardian only for a lawful reason; if the guardian is unable to cope, the judge adds another, and if the inability proves permanent, replaces the guardian.

Stripping or suspending a wali's guardianship

A wali is different from a wasi. Under article 32 of the Minors Care Law, the court may strip a wali of guardianship once it is satisfied of misconduct, and under article 33 it suspends guardianship if the wali is treated as absent or has been sentenced to a custodial term of more than a year. Article 37 allows a guardian for litigation where the minor's interest conflicts with that of the wali or wasi, and a temporary guardian where guardianship has been suspended.

The court and supervision

Under item 3 of article 300 of the Civil Procedure Law, the Personal Status Court has jurisdiction over guardianship and curatorship, including appointing, removing and holding a guardian or curator to account and authorising transactions. Article 66 of the Minors Care Law requires the wali or wasi to submit an annual account to the Minors Care Directorate, and article 43 bars significant dealings with a minor's property, such as real estate transactions, without the directorate's approval. The public prosecution, the wali or the wasi may challenge the directorate's approvals or refusals before the court of appeal within seven days of notification under article 58.

Legal basis and sources

Frequently asked questions

Is a mother removed as guardian if she remarries?

The Minors Care Law does not list remarriage as a separate ground for removal; the tests are capacity, the child's interest and the cases in articles 38 and 84.

Who asks for removal?

The Minors Care Directorate asks on the accounting committee's recommendation, and the court also considers cases that threaten the minor's interest under article 84.

When does guardianship end?

When the child reaches majority unless the court extends it, when the father regains guardianship, on removal or resignation, or in the other cases in article 39.

Always check the text in force and its amendments in the official source.

To ask about your matter

Call +964 770 848 7526 WhatsApp Email

Removing a guardian (wasi) under Iraqi law