House of Lords, Shari’a Law and the Grant of Asylum
The House of Lords has just released a judgment, Em (Lebanon) (Fc) (Fc) v. Secretary of State For The Home Department [2008] UKHL 64, of some interest.
A mother and her seven-year-old son from Lebanon sought asylum in the U.K., claiming a right to remain under article 8 of the European Convention on Human Rights read in conjunction with article 14. She had been granted a divorce from her husband in Lebanon and had actual custody of their child; when the boy would turn seven, Shari’a law would automatically pass all custody, legal and actual, to the father; the mother might be allowed supervised visits with her son. To escape this result, the mother took the child to England, where she applied for the right to remain on the basis that Shari’a law would, in her case, result in flagrant denial of her right to family life.
The Lords reversed the Court of Appeal decision and allowed the mother, and consequently her dependent son, to stay in the U.K.
The case presents a raft of difficult and tangled issues, having to do with, among other things, what the limit is on the government’s power to control immigration, when may “an alien” take advantage of rights under the European Convention, what respect is to be given to Shari’a law, at least as it is embodied in Lebanese law, and (a point raised only in the Court of Appeal decision) whether the principles underlying the 1980 Hague Convention on the Civil Aspects of International Child Abduction ought to be followed ((Lebanon is not a signatory of the Convention.)).
These are not wholly novel problems, to be sure: there have always been conflicts of law and international law and treaties. But the rate at which nations are concluding agreements and conventions seems to be increasing; and it is certainly the case that enhanced mobility and new information technologies have made boundaries, and with them, jurisdictions, more permeable than ever, with the result that cultures cannot escape each other.
It used to be – may still be – the policy in Canada to accept as many countries as possible as parties to the Hague Child Abduction Convention. Countries that were not members of The Hague Conference at the time the Convention is made cannot join a convention and bind all the other states parties – each state party gets to decide if they accept to be bound under the convention with the non-member state.
Canada tends to accept, even for countries with rather nasty (in our view) policies about child custody, on the ground that it is better to return a kid to that kind of system (given that the kid is habitually resident there, or the Convention would not apply) than to have no argument for getting our own kids (i.e. those habitually resident in Canada) back from such countries.
It seems to me that there are relatively few Muslim countries in the Convention. I don’t know if compliance is high among those who are, i.e. are kids returned from them when taken there in circumstances that would make the Convention apply?
I agree with Simon that this is clearly not a convention case, and that it’s messy. One can be pretty sure that the HL decision will be well known in Lebanon. Good luck to the next English parent who tries to get a Lebanese court to return a kid who’s been taken there by the Lebanese national.
Umh… there is no automatic custody in Shari’ah law.
There are variations not only between jurisdictions, but also between different judiciary systems and schools of thought.
It’s always unfortunate to see such a complex legal system, with a history older than the common law, reduced to such simple conclusions, but that’s the nature of the world we live in I guess.
There is a decent chart here that illustrates some of these juristic variations, but that’s really only a start.
Further discussion indicating geographic variations can be found here. Competency requirements might also be illustrative.
The “path” is wide with many options. I don’t think we would ever be presumptuous to say The Common Law says ______ on pretty much anything, because circumstance and situation dictates so much. The same should hold true for other legal systems with an even longer history of precedent.
It’s worth noting, perhaps, that the U.K. government has recently approved the use of Shari’a courts under the Arbitrations Act. Such courts have been set up in London, Birmingham, Bradford and Manchester, with two planned for Edinburgh and Glasgow: TimesOnline: http://tinyurl.com/4blswh
It’s also interesting that while Shari’a courts have been set up in the U.K., they have been stopped in Ontario, along with all other religious courts, such as a Beit Din. Whether you agree with it or not is a matter of personal opinion for an individual.
It’s also worth noting Marion Boyd’s report on the issue, which addressed many of the misconceptions involved.
The decision to scrap them all was a political one based on policy reasons stemming from heigtened sensitivities rather than any legal concerns of a conflict of laws.
It is very important in talking about “Shari’a courts” to note that they are NOT “courts” and they have not been “set up” by government. Like the proposal in Ontario by the Islamic Institute on Civil Justice, we are talking about purely private methods of dispute resolution. The only public element is that the awards of these private systems are enforceable in the public courts – just as privately-made contracts are so enforceable.
So the UK government is not requiring anyone to use any form of law but English (or other British) law to resolve disputes. But if people choose to rely on some other law, then they may rely on it by arbitration as well as by direct (or mediated) agreement.
Ontario will still enforce a domestic contract made abroad or subject to foreign law (though not a family arbitration conducted under foreign law, secular or religious). That contract must not be unconscionable (to Ontario eyes).