The case at hand concerns a woman who would have her child taken away from her under sharia law if she were to be repatriated to Lebanon. It is, of course, highly ironic that Britain itself has now imported the same set of issues into its own legal system by allowing rulings in domestic sharia courts to be legally binding. It may not be long before the high court must take up sharia rulings within the U.K. — an unfortunate and costly eventuality.
“Law lords say sharia is ‘arbitrary and discriminatory’,” by Joshua Rozenburg for the Telegraph, October 22:
The law lords ruled this morning ruled that it would be a “flagrant breach” of the European Convention on Human Rights for the government to remove a woman to Lebanon where she would automatically lose custody of her 12-year old son under Lebanon’s sharia family law.
The woman — referred to only as EM — came to the UK on false documents in 2004 with her son, AF, then aged eight. She has had sole custody of AF since birth but fled from her allegedly violent husband in Lebanon because of laws that automatically award fathers physical custody of their children from the age of seven.
Today”s decision reversed earlier rulings by the Court of Appeal, the Asylum and Immigration Tribunal and the Home Secretary that returning the woman and her son to Lebanon would not violate her right to family life despite the automatic separation of mother and child.
But the judges stressed that the case was exceptional. The family had to satisfy what Lord Bingham described as a “very hard test”: whether removal to Lebanon would so flagrantly violate their rights to family life as to completely nullify those rights there. Lord Bingham said “the effect of return would be to destroy the family life” of the mother and son as it is now lived.
The first judgment was delivered by Lord Hope. His comments on sharia are worth reading in full:
“The appellant came to this country as a fugitive from sharia law. Her son had reached the age of seven when, under the system that regulates the custody of a child of that age under sharia law in Lebanon, his physical custody would pass by force of law to his father or another male member of his family. Any attempt by her to retain custody of him there would be bound to fail. This is simply because the law dictates that a mother has no right to the custody of her child after that age. She may or may not be allowed what has been described as visitation. That would give her access to her son during supervised visits to a place where she could see him. But under no circumstances would his custody remain with her.
“The close relationship that exists between mother and child up to the age of custodial transfer cannot survive under that system of law where, as in this case, the parents of the child are longer living together when the child reaches that age. There is a real risk in all these cases that the very essence of the family life that mother and child have shared together up to that date will be destroyed or nullified.
“This system was described by counsel during the argument as arbitrary and discriminatory. So it is, if it is to be measured by the human rights standards that we are obliged to apply by the Convention. The mutual enjoyment by parent and child of each other’s company is a fundamental element of family life.
“Under our law non-discrimination is a core principle for the protection of human rights. The fact is however that sharia law as it is applied in Lebanon was created by and for men in a male dominated society. The place of the mother in the life of a child under that system is quite different under that law from that which is guaranteed in the Contracting States by article 8 of the [Human Rights] Convention read in conjunction with article 14. There is no place in it for equal rights between men and women.
“It is, as Lord Bingham points out, the product of a religious and cultural tradition that is respected and observed throughout much of the world. But by our standards the system is arbitrary because the law permits of no exceptions to its application, however strong the objections may be on the facts of any given case. It is discriminatory too because it denies women custody of their children after they have reached the age of custodial transfer simply because they are women. That is why the appellant removed her child from that system of law and sought protection against its effects in this country.”
But Lord Brown sounded a word of caution:
“It is certainly not the arbitrary and discriminatory character of the rule of sharia law dictating that at the age of seven a child’s physical custody automatically passes from the mother to the father (or another male member of his family) “” wholly incompatible though such a rule is with certain of the basic principles underlying the Convention “” which, uniquely thus far in the jurisprudence both of Strasbourg and the UK courts, qualifies this particular “˜foreign” case as one for protection under article 8. Rather it is the highly exceptional facts of the case (as set out in my Lords” opinions) which in combination provide utterly compelling humanitarian grounds against removal.”