People of Faith and None

Dated:   

“I believe in recognizing every human being as a human being - neither white, black, brown, or red; and when you are dealing with humanity as a family there's no question of integration or intermarriage. It's just one human being marrying another human being or one human being living around and with another human being.”

People of Faith and None

So wrote the American human rights activist Malcolm X in his autobiography. But what happens when a relationship between people of different cultures or faiths goes wrong? How do our judges resolve the conflict between competing interests and beliefs? Whose values are to prevail? How are the interests of the children in the middle of the conflict identified and promoted?

Mrs Justice Roberts recently had to decide a case in Exeter which brought these matters to a head.

The father was an Algerian Muslim. He applied to the court for several orders relating to his two children who were boys aged, respectively, 6 and almost 5. He wanted more time with his children, permission to take them abroad, specifically to see his family in Algeria, and an order permitting them to be circumcised in accordance with Islamic faith and practice.

The mother resisted all these orders. She had been born and raised in Devon. The judgment gives little information about the culture of her upbringing, but we can safely assume it was not Islamic.

In 2009 the parties went through an Islamic ceremony of marriage. This was not in fact valid because the father had contracted an earlier marriage of convenience to a French woman from whom he was not yet divorced. Nevertheless it seems clear the marriage was emotionally genuine and seriously intended and the relationship deeply committed, to the extent that the mother indicated she would convert to Islam.

The two boys were born in 2009 and 2011. After the birth of the younger child, the parents visited Algeria to where, the father made clear, he would one day wish to permanently return with his new family.

Sadly, even by then, the couple were drifting apart and things between them quickly got much worse.

At a (much) later fact finding hearing, a different judge had found that the father had been physically and emotionally abusive and controlling. He had been convicted of assaulting the mother. He had threatened to abduct the children to Algeria. He had used unlawful drugs.

By the summer of 2012 the relationship was over and the parties were living apart. At that stage the father was, to say the least, in a ‘difficult place’ and his contact with the children had been closely supervised.

However, by the time of the court hearing in April 2016 things had moved on. The father had moved close to the mother in Devon and was seeing the children regularly and without supervision.

The mother’s life was also transformed. She had a new partner by whom she had a daughter who was now 2 years old. She had completely abandoned Islam or any other formal religious faith.

So Mrs Justice Roberts had to decide a dispute between a mother who was emotionally bruised and mistrustful in the light of her fairly recent history of abuse and a father who could, with some justification, argue that he had changed and was asking the court to respect and permit the consequences of his devout Muslim faith in so far as it impinged on the parenting of his sons.

The tensions and difficulties are clear. What was the judge to do with them?

Our law makes it clear that in deciding any question relating to the upbringing of a child, the child’s welfare is paramount. That is to say it trumps any other consideration or interest. Tightly holding onto the golden thread of the boys’ interests led the judge out of the fog of conflict and complexity and enabled her to make clear decisions.

She permitted and needed expert evidence to help her decide where the boys’ interests lay. She heard from an expert in Islamic, specifically Algerian, family law. Algeria’s family law rules are very different from ours. The judge heard they favour the father in a dispute, and mothers, especially non-Muslim mothers, had the forensic cards stacked against them when it came to seeking custody of their children if that was resisted by the father.

She also heard from two medical experts on the subject of the proposed circumcision. They were not in complete agreement but both accepted that for these boys, circumcision was not medically needed or particularly advised. There would be very small, but not negligible, risks of complications for the boys if the operations went ahead.

Legally, she had to consider each separate item in the so called welfare checklist contained in the Children Act and quite separately take into account each parent’s, and each child’s, human rights.

Those human rights potentially clash, in that the father’s rights to have his family life and freedom to practise his religion might, if given full effect, not sit comfortably with the similar rights of the mother or the best interests of the children. In the words of the song, “something’s gotta give”.

The judge decided that although the father had given her assurances that he would never do such a thing, the risk of the children being abducted was still too great for her to give the father permission to go abroad. It was not, for the judge, that the risk of abduction was great, but that the consequences of harm if he did do so were unacceptably large. The mother would have the greatest possible difficulty in getting the children back.

Both these boys had always lived with their mum and were integrated into her way of life. It would be an enormous change and shock for them to be raised in Algeria; a change to which they would struggle to adapt and which would not be in their best interests.

It seems very clear that the Judge gave enormous and careful thought to the question of circumcision. The court was told that whilst this practice is not ordained in the Quran, it is strongly recommended in the practice of the Prophet (the Sunnah) and therefore is seen by the majority of Muslims as a necessary treatment or act in order for a father to fulfil his religious duties to God and his son. It is a very serious obligation.

The judge gave great weight to this, but also had to take into account that the mother, whose agnostic values were also worthy of respect, was deeply opposed to her sons being circumcised and neither medical expert thought it was a necessary or desirable procedure for the boys at this stage of their lives.

The father was therefore refused permission to have the boys circumcised. The judge went further and ruled the question of their circumcision was now settled until they were old enough to make the decision for themselves.

Finally, the judge decided the father should have an extra mid-week overnight stay with the boys in place of a few hours after school each Friday.

We suspect that how you see this judgment will depend on where you are coming from. Is it a classic demonstration of balancing different rights and interests in a complex, diverse world? Or is it an English court imposing western, atheistic values in defiance of the word of God?

Wherever you stand, the courts will be facing ever more disputes of this type and our social harmony and cohesion will depend on the skill and sensitivity with which we resolve them.

For those who wish to read the original judgment it is to be found online at http://www.familylaw.co.uk/news_and_comment/l-and-b-children-2016-ewhc-849-fam#.Vxj5z41watE


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