In a case with large implications, Britain's highest court has allowed an illegal Lebanese immigrant to remain in the country to avoid facing the Shar‘i-based family code that prevails in her native country. Joshua Rozenberg reports in the Daily Telegraph that
The law lords ruled this morning 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.
If this approach becomes a general rule, then a good part of the world's Muslim population could have asylum rights in Britain, for the Shari‘a is precisely most often applied in the realm of family law.
Secondarily, the ruling is of interest because one judge, Lord Hope of Craighead, commented at length and negatively about the Shari‘a:
The appellant came to this country as a fugitive from Shari'a law. Her son had reached the age of seven when, under the system that regulates the custody of a child of that age under Shari'a 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 no 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 [European Convention on Human Rights]. 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 Shari'a 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 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.
Lord Hope's views contrast sharply to the positive view of other leading British figures, such as the archbishop of Canterbury, Rowan Williams, and the lord chief justice, Lord Phillips of Worth Matravers. (October 22, 2008)
