Law: Sharia law may fall hard on parents

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Child abduction by one parent to certain countries is complicated system in force. Jeremy Rosenblatt looks at the implications for children abducted out of, and into, the UK. Whilst we await the outcome of the sentence of certainly one of the British nurses in Saudi Arabia according to Sharia law, consideration should be given to the problems that are faced by reason of Sharia law regarding both incoming and outgoing child abductions to countries with a Sharia legal system with its Shia and Sunni interpretations.

Unlike most western countries, Islamic countries have not signed the Hague convention on the civil aspects of international child abduction. As a wronged parent cannot ask the London Central Authority to contact the Riyadh counterpart, an English parent would have to instruct lawyers directly in Saudi Arabia regarding the return of a child abducted from England. If an order of return has been made by the English High Court, it might well fall on deaf ears in Saudi Arabia, especially if the paternity of the child is deemed by the Sharia Court to be Islamic despite the child also having an English Christian mother, if the father is himself a Muslim and despite the child's place of habitual residence only ever having been England.

Similarly, if a separated or divorced father has returned to live in an Islamic country he will not necessarily be able to enjoy summer vacation contact with his child, if the Sharia legal system under which he resides refuses to acknowledge, in advance of temporary travel by the child, an English High Court order for return at the end of the contract period, an undertaking of return already given by the father to the English court or even a bond of money deposited by him in England, if the Sharia Court disapproves of the return of the child to the English jurisdiction at the end of the contract period.

However, despite such an adverse attitude, the English court does not necessarily retain children abducted to its jurisdiction from such countries. In RES (minors) (abduction) 1994 FLR 297, the High Court returned a child to Pakistan believing the Pakistani court would give effect to the child's welfare from the Muslim point of view, deeming that to be appropriate despite abductions of English children to Pakistan resulting in their being retained there permanently even with foreign and Commonwealth occasional intervention.

However, in Re Ja (Child abduction: non-convention country) 1997 2 FLR 5, where the marriage of an English mother and a father from the United Arab Emirates broke down with the mother removing the child to England, the Court of Appeal did not overturn the decision of the court of first instance. In a change of approach it held that only where the English court is satisfied that the child's welfare would be protected by the foreign court could the decision regarding the child's upbringing be entrusted to it. It said that it would be an abdication of its duty to surrender the determination of the child's future to a foreign court whose regime might be inimical to the child's own welfare. The Court of Appeal added that it would assume that foreign law would be the same as English law, and therefore the onus would be upon a person resisting return to show, for example, the limitations of Sharia law when deciding issues regarding a child abducted from such a jurisdiction. Evidence given in Re Ja showed that the guardianship rested with the father, with whom the child would reside from her 12th birthday and that upon the mother's return to the United Arab Emirates the Sharia Court should not order her to return to the UK with the child if the father took it upon himself to object.

Jeremy Rosenblatt is a family barrister. 'Children, International Law and Practice' will be published this autumn by Jordans.