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Cultural diversity, human rights and inconsistency in the English courts

Published online by Cambridge University Press:  02 January 2018

Urfan Khaliq  and
James Young
Urfan Khaliq
Affiliation:
Cardiff Law School
James Young
Affiliation:
Cardiff Law School
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Abstract

Ethnic and cultural diversity within the UK has ensured that English courts regularly have to resolve cultural conflicts. This paper concentrates on cultural conflicts in the courts where there is an international dimension to this issue and where persons not resident in the UK seek the help of the English courts. The paper does this by reference to two areas of law, asylum and child abduction, which also allows a comparison between the approach to human rights by judges in the public and private law spheres. The paper aims to highlight the in consistency of the approach among judges in child abduction cases, where the role of human rights is unclear. It contrasts this with the judicial approach in asylum cases and English law in general, where we argue human rights are increasingly influencing the attitudes to various practices justified on a cultural or religious basis.

Type
Research Article
Information
Legal Studies , Volume 21 , Issue 2 , June 2001 , pp. 192 - 225
Copyright
Copyright © Society of Legal Scholars 2001

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References

1. ‘Culture’ has become an ill-defined and loosely used concept. The cultural groups to which we are referring are those whose system of beliefs and practices derive from and define themselves by reference to a well-established religious tradition. But see Bradney, A Religion, Rights and the Law (Leicester: Leicester University Press, 1993) p 52 Google Scholar who considers that English law has been facing major conceptual problems over how to handle religion as a marker of community or group identity.

2. By which we mean states in which Islam is the predominant faith. There is a significant divergence between states where Islam predominates in the use of Islam in their domestic legal systems. Notwithstanding which, if any, school of jurisprudence or sect predominates in a state, certain values and practices justified by reliance on Islam, regardless of whether or not they are theologically justifiable, will conflict with the culture, attitudes, practices and legal norms of this country. The literature in international human rights discourse on questions of cultural relativity, in general, is extensive. A small selection of the literature includes: A Renteln ‘The Unanswered Challenge of Relativism and the Consequences for Human Rights’ (1985) 7 Human Rights Quarterly 514, Donnelly, J Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989)Google Scholar; F Teson ‘International Human Rights and Cultural Relativism’ (1985) 25 Va JIL 869; R Donoho ‘Relativism Versus Universalism in Human Rights: The Search for Meaningful Standards’ (1991) 27 Stanford LJ 345; M Perry ‘Are Human Rights Universal? The Relativist Challenge and Related Matters’ (1997) 19 Human Rights Quarterly 461; and J Tilley ‘Cultural Relativism’ (2000) 22 Human Rights Quarterly 501.

3. ‘Fundamentalism repudiates the tolerant modernist claim that the faith in question means something much milder, far less exclusive, altogether less demanding and much more accommodating: above all something quite compatible with all other faiths, even, or especially, with the lack of faith.’ Gellner, E Postmodernism, Reason and Religion (London: Routledge, 1992) p 3.CrossRefGoogle Scholar

4. The Enlightenment Project is ‘[t]he project of giving human institutions a claim on reason that has universal authority’. Gray, J Enlightenment's Wake (London: Routledge, 1997) p 64 Google Scholar.

5. Gray, above n 4, p 54, borrowing from C Geertz ‘Anti anti Relativism’ (1984) 86 American Anthropologist 263.

6. See in particular Berlin, I The Crooked Timber of Humanity (London: John Murray, 1990)Google Scholar; Raz, J The Morality of Freedom (Oxford: Clarendon Press, 1986) pp 395–399 Google Scholar; and Gray, J Post Liberalism (London: Routledge, 1993) pp 64–69 Google Scholar.

7. Gray, above n 4, p 80.

8. Raz, above n 6, p182argues that multiculturalism is not inconsistent in principle with the assimilation of one cultural group to another, provided that this assimilation is not coerced.

9. ‘Cultural pluralism’ as a form of social organisation and mutual tolerance should not be confused with valuc-pluralism as anethical position; see J Raz ‘Moral Change and Social Relativism’ (1994) 11 Social Philosophy and Policy 139.

10. See generally Poulter, S Ethnicity, Law and Human Rights: The English Experience (Oxford: OUP, 1998)Google Scholar and English Law and Ethnic Minority Customs (London: Butterworths, 1986); Bradney, above n 1; Pearl, D and Menski, W Muslim Fami1y Law (London: Sweet and Maxwell, 3rd edn, 1998) pp 62–73 Google Scholar, with particular reference to issues raised by Muslim communities in Britain and a critique of Poulter's approach; Jones, R and Gnanapala, W Ethnic Minorities in English Law (London: Trentham, 2000)Google Scholar; and W Barbieri ‘Group Rights and the Muslim Diaspora’ (1999) 21 Human Rights Quarterly 907, for an outline of the position taken in Europe in general.

11. Pearl and Menski, above n 10, p 70.

12. Gray, above n 4, p 18.

13. Roy Jenkins, when Home Secretary, is often credited with making this policy explicit in a speech in 1966. This has been continued by subsequent administrations. See Michael Howard's speech as the then Home Secretary in September1994, reprinted in (1994) 279 Runnymede Bulletin 8 and Baroness Scotland of Asthal QC in a speech entitled ‘Preventing Forced Marriages: A Matter for the Whole Community’ to the Family Proceedings Conference, Leeds, 3 March 2000, available at http://www.fco.gov.uk. Also see generally Poulter (1998), above n 10, pp 17–29 who, at pp 59–65, distinguishes seven policy options: suppression; invalidity (simply not recognising the validity of acts); exclusion (of minorities from the UK); laissez faire; non-discrimination; specific differential treatment; state-funded differential treatment.

14. Road Traffic Act 1988, s 16(2) and the Employment Act 1989, s 11 exempting Sikhs from wearing protective headgear, for example.

15. For example, Sunday Trading Act 1994 Sch 1, para 2(2)b; Sch 2, Pt 11, which subjects the opening of Jewish-owned shops on Sundays to different regulations from other shops; the slaughter of animals in accordance with Jewish and Muslim law under the Fresh Meat (Hygiene and Inspection) Regulations 1995, SI 1995/539, Sch 9. See more generally the excellent study by Montgomery, J ‘Legislating for a Multi-Faith Society: Some Problems of Special Treatment’ in Hepple, B and Szyszczak, E (eds) Discrimination: The Limits of Law (London: Mansell, 1992)Google Scholar.

16. On the dangers, which we recognise, of a simplistic and loose use of the term ‘liberalism’, see Gray, above n 6 and Mendes, S Toleration and the Limits of Liberulisrn (Basingstoke: Macmillan, 1989) ch 4CrossRefGoogle Scholar.

17. Alhaji Mohamed v Knott [1969] 1 QB 1 (marriage of13–year-old girl valid because both parties domiciled in country of marriage where it was lawful); R v Derrivierre (1969) 53 Cr App R 637 (relevance of different cultural attitudes to parental corrective discipline); and R v Bibi [1980] 1 WLR 1193 (subservient role of woman in family reduced personal responsibility as mitigation in sentencing); and, more generally, Poulter (1986), above n 10, pp 271–277 and Freeman, M ‘Culture Pluralism and the Rights of the Child’ in Eekelaar, J and Nhalpo, T (eds) The Changing Family (Oxford: Hart, 1998) p 289 at pp 290–292.Google Scholar

18. The Human Rights Act 1998 does not incorporate the ECHR in to English law but, according to its long title, aims to give it further effect. It is interesting to note that on a number of occasions the UK's limits of tolerance have been challenged in Strasbourg: Application 17439/90 Choudhury v UK (1991) 12 HRLJ 172 (concerning the law of blasphemy's non-application to non Christian religions) which was also upheld in Wingrove v UK (1997) 24 EHRR 1; Application 11579/85 Khan v UK (1986) 48 D and R 253 (concerning the prohibition on marriage concerning individuals under the age of 16); and Application 19628/92 Rabia Bibi v UK (where the challenge concerned the ban on polygamous marriages). In each instance the right to religion or family life was invoked and the UK's laws upheld. The Commission, which dealt with all of these applications, either side-stepped the issue or argued that the UK was justified in its policies as they preserved the culture of the UK, yet this was not the reasoning behind the UK's policies.

19. See, in the context of the Human Rights Act 1998, A McHarg ‘Reconciling Human Rights and Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 MLR 671.

20. Re KR (Abduction andforcible removal byparents) [1999] 2 FCR 317. The position adopted by the courts here is similar to the view put forward by Green, L ‘Internal Minorities and their Rights’ in Kymlicka, W (ed) The Rights of Minority Culrures (Oxford: Oxford University Press, 1995) p 256 at p 264Google Scholar, and Raz, above n 6, p 181, concerning the rights of ‘exit’ for members of minority groups which must be protected.

21. Criminalised by the Prohibition of Female Circumcision Act 1985. Many African and Asian Muslims justify female circumcision on religious grounds, although it is clear that there is very little, if any, Islamic justification for female circumcision.

22. Where the absence of either party's consent makes the marriage voidable. The latest policy on ‘forced marriages’ was articulated by Baroness Scotland QC, above n 13. Also see Report of the Working Group on Forced Marriage A Choice by Right (London: Home Office Communications Directorate, 2000).

23. For an excellent discussion of the issues of cultural diversity and the best interests of the child, see Freeman, above n 17.

24. Re H [1987] 2 FLR 12. See also the similar test which asks whether a practice is ‘repugnant’.

25. Re R (A Minor) (Blood Transfusion) [1993] 2 FLR 757. See more generally, C Bridge ‘Religion, Culture and Conviction -The Medical Treatment of Young Children’ (1999) 11 Child and Family LQ 1.

26. This is in accordance with the Matrimonial Causes Act 1973, s 11(a)(ii) which stipulates that the minimum lawful age for marriage is 16. This position is also reiterated in para 277 of the Immigration Rules, HC 394 (1994), which prohibits entry to the UK as the spouse of another, if either party will be aged under16 on the date of arrival or (as the case may be) on the date on which the leave to remain or variation of leave would be granted, despite the legality of such relationships in another jurisdiction.

27. Children Act 1989, s 22. See also ss 33. 61, 64 and 74.

28. Jussa v Jussa [1972] 2 All ER 600 at 604.

29. European Convention on Human Rights, Protocol 1, art 2.

30. See J Herring ‘The Human Rights Act and the Welfare Principle in Family Law - Conflicting or Complementary?’ (1999) 11 Child and Family LQ 223.

31. We do recognise that the state is not neutral in other respects as well -such as public holidays generally coinciding with Christian festivals and the privileged status of the English language -but feel that, generally speaking, in so far as is practicable, it takes a neutral stance unless the foundations upon which it is based are challenged.

32. Despite the practice of ‘Strasbourg proofing’, it is possible to envisage a situation where an incorporated treaty obligation conflicts with a non-incorporated human rights treaty obligation where there is an inconsistency between the two treaties themselves.

33. The Extradition Act 1989. s 6(1)(c)-(d) declares that a person ‘shall not be returned’ if the extradition request was made ‘for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions’ or that ‘he might.be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of’ those same characteristics. By virtue of s 1(3)(c)of the same Act, extradition may also be refused if the request was not made ‘in good faith in the interests ofjustice’.

34. 189 UNTS 150, effectively but not actually incorporated into UK law by the Asylum and Immigration Appeals Act 1993. The Convention has generated a huge literature, see amongst inany others, Goodwin-Gill, G The Refugee in International Law (Oxford: Clarendon Press, 2nd edn, 1996)Google ScholarPubMed and Hathaway, J The Law oj'Refugee Status (Ottawa: Butterworths, 1991)Google ScholarPubMed.

35. The House of Lords have considered the Convention prior and since the Shah and Islam cases in R v Secretary of State for the Home Department, ex p Bugdacny and Others [1987] AC 514; R v Secretary of Statefor the Home Department, ex p Sivakumuran [1988] AC 958; T v Immigration Officer [1996] AC 742; R v Secretary of State for the Home Department. ex p Adan and Others [1999] 1 AC 293; and Horvath v Secretaty of State for the Home Department [2000] 3 WLR 317.

36. R v Immigration Appeal Tribunal and Another, ex p Shah, [1997] Imm AR 145; R v Immigration Appeal Tribunal and Another, ex p Shah and Islam and Others v Secretary of State for the Home Department [1998] 1 WLR 74; Islam and Others v Secretaty of State for the Home Depurtment and R v Immigration Appeal Tribunal and Another, ex p Shah [Consolidated Appeals] [1999] 2 WLR 1015.

37. By the time the cases reached the House of Lords both applicants had been granted exceptional leave to stay in the UK but still sought refugee status.

38. This is the first level of decision-making. Appeal lies to the Immigration Appeal Tribunal (IAT), thence to the Court of Appeal and the House of Lords.

39. Unpublished decision quoted by Lord Hoffmann, at 1030.

40. Article 25 provides: (1) All citizens are equal before law and are entitled to equal protectionof law. (2)There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. The entire Pakistani Constitution is (as at May 2001)in ‘abeyance’ following the military coup of 12 October 1999 and the issuing of Provisional Constitutional Order No1 of 15 October1999, although the Order does declare in art 2(1) that ‘notwithstanding the abeyance of the provisions of the Constitution.Pakistan shall be governed, as nearly as may be, in accordance with the Constitution’.

41. The 1979 Hudood Ordinances which are a set of ‘Islamic’ penal codes, have on occasion been interpreted in a manner where a woman who cannot satisfy the evidential burden in an accusation of rape, is then deemed to be admitting unlawful intercourse and thus punished accordingly. The reasoning behind this is quite perverse, as a failure to prove rape, which is notoriously difficult in any jurisdiction, does not equate to consensual intercourse. For more on this see Human Rights Watch Double Jeopardy: Police Abuse of Women in Pakistan (New York: HRW, 1992). The added complications concerning these provisions is that they have, in the Constitution (Eighth Amendment) Act1985, been granted a special position and thus cannot have their validity challenged in a normal manner before the courts, and that in s 17 of the Qanan-e-Shahadat (Law of Evidence) Order 1984, the evidence of two women is equivalent to that of a male with respect to certain crimes, including rape.

42. Constitution (Fifteenth Amendment) Act 1998, inserting a new art 2B(4) into the Constitution.

43. Convention on the Elimination of All forms of Discrimination Against Women, UN Doc A/34/180 (1979) (The Women's Convention).

44. Although termed a declaration, it is clearly a reservation within the terms of art 2(d) of the Vienna Convention on the Law of Treaties 1969, UKTS 58 (1989). Austria, Portugal, Denmark, Germany, the Netherlands, Norway and Sweden have all treated it as such and have entered objections to it.

45. Report on Aspects of the Rule of Law and Human Rights in the Legal System of Pakistan (London: IBA, 1998).

46. No reference was given in the reports of the cases, but it is likely to be Women in Pakistan: Disadvantaged and Denied Their Rights (London: AI, 1995). More recent Amnesty International reports include: Pakistan: Women's Rights Remain a Dead Letter (London: AI, 1997); Pakistan: No Progress on Women's Rights (London: AI, 1998). For more extensive studies see Mumtaz, K and Shaheed, F Women of Pakistan: Two Steps Forward, One Step Back? (London: Zed Books, 1987)Google Scholar and Human Rights Watch Crime or Custom, Violence Against Women in Pakistan (New York: HRW, 1999)Google ScholarPubMed.

47. Although Sedley J expressed the view that Mrs Shah might come within the definition of ‘particular social group’ during judicial review of the IAT's decision to refuse leave of appeal from the Special Adjudicator's decision.

48. See on this issue M Vidal ‘Membership of a “Particular Social Group” and the Effect of Islam and Shah’ (1999) 11 International Journal of Refugee Law 528 and GGoodwin-Gill ‘Judicial Reasoning and “Social Groups” After Islam and Shah’ (1999) 11 International Journal of Refugee Law 537.

49. Although all women would not be entitled to asylum unless they could prove persecution because of membership of the social group. The second question, of whether there was actual persecution of the women, was not definitively determined by the Lords with regard to Mrs Shah, whose case was referred back to be determined on the facts. Mrs Islam was awarded refugee status.

50. At 1040. Lord Hutton was agreeing with the ‘narrower ground’ as defined by Lord Steyn, at 1027.

51. Ibid, at 1036.

52. Which included Waite LJ, who took a rather different approach in the child abduction cases discussed below.

53. Ibid, at 1036.

54. Ibid. at 1044.

55. See for example the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children 1980 and the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

56. Children Act 1989, s 1(l)Google ScholarPubMed, hereafter ‘the welfare principle’.

57. See Lowe, N and Douglas, G Bromley's Family Law (London: Buttenvorths, 9th edn, 1998) ch 9.Google Scholar

58. McKee v McKee [1951] AC 352. Earlier conflicting decisions include Dawson v Jay (1854)3 De G, M and G 764 and Nugent v Verzeru (1866) LR 2 Eq 74. The European Convention on the Recognition and Enforcement of Custody Decisions1980 does provide for recognition and enforcement of such decisions, but applies only to contracting states.

59. Reciprocity’ in English private international law has three meanings. First, and the only proper use of the term, is where there are reciprocal treaty arrangements in force between states. The second, an aspect of comity, is the hope, usually unfounded, that if the English courtsare nice to foreign courts, they will later be nice in return. The third concerns recognition of foreign judgments. The principle, which is not a part of orthodox theories, is that a court should recognise foreign judgments if they were given in circumstances in which, muratis murandis, the English courts would have assumed jurisdiction.

60. Family Law Act 1986, s 5(2)Google Scholar.

61. It is unnecessary to go into the details of the rules, but the flavour of the approach may be gathered from Lord Denning MR's resounding declaration that: ‘You may call hs “forum shopping” if you please, but if the forum is England, it is a good place to shop in, both for the quality of the goods and the speed of service.’ In The Atlantic Star [1972] 3 All ER 705 at 709.

62. Vague allegations will not justify refusal of a stay; see for example, Lord Diplock in The Abidin Daver [1984] AC 398 at 411, where he makes it clear that the English courts will entertain evidence to this effect. Lord Goff has in Connelly v RTZ Corp plc [1998] AC 854 considered and further explained this exception.

63. The question is whether the issue of the appropriate forum is one involving ‘a question with respect to the upbringing of the child’ in which case the child's welfare is paramount under the Children Act 1989, s 1. Waite J in H v H (Minors) (Forum Conveniens) (Nos 1 and 2) [1993] 1 FLR thought that it was, following dicta of Lord Donaldson in Re F (A Minor) (Abduction: Jurisdiction) [1991] Fam 25 at 31. Thorpe J thought that it was not in Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314 at 324–325.

64. See Waite J in H v H, above n 63 at 976 and his ‘fulsome deference to the feelings of the Wisconsin court’ cited by D McClean and K Beevers ‘International Child Abduction - Back to Common Law Principles’ (1995) 7 Child and Family LQ 128 at 134.

65. Re L (Minors) [1974] 1 WLR 250 at 264.

66. Re JA (A Minor) (Abduction: Non-Convention Country) [1998] 1 FLR 231 at 235.

67. See Re P (Abduction: Non-Convention Country) [1997] 1 FLR 780.

68. See Re F (A Minor) (Abduction: Jurisdiction) [1991] Fam 25 at 31.

69. Salomon v Commissioners of Customs and Excise [1967] QB 116.

70. Amongst others, R v Secretary of State for the Home Department, exp Brind [1991] 1 AC 696.

71. Convention on the Rights of the Child, UN Doc A/44/49 (1989) (hereafter, the Children's Convention), The UK ratified the convention on16 December 1991 but has not incorporated it.

72. Children's Convention, art 2(1).

73. The convention was ratified by the UK on 7 April 1986 but has not been incorporated.

74. Article 2 of both the International Covenant on Civil and Political Rights 1966 (ICCPR), 999 UNTS171, and the International Covenant on Economic, Social and Cultural Rights1966 (ICESCR), 999 UNTS 3, require states to undertake not to discriminate against persons on the basis of sex, amongst other grounds with regard to the rights within those documents. Article 3 of the ICCPR goes further, however, in emphasising that states must undertake to ensure equal rights on the basis of sex in the enjoyment of all civil and political rights set forth in the covenant. This is further supplemented by art 26 of the convention, which has led to a substantial jurisprudence and also General Comment 28 of 29 March 2000, CCPR/C/21/Revl/Add10, CCPR.

The UK ratified both covenants on 20 May 1976 but neither has been incorporated. There are a number of reservations by Islamic states to arts 2 and 3of the ICCPR. Article14 of the ECHR also prohibits discrimination on the basis of sex but can only be relied upon in conjunction with one of the substantive rights protected by the convention.

75. ICCPR, art 14

76. Women's Convention, art 16(1)(d).

77. Women's Convention, art 16(1)(f). The UK has entered a reservation to this provision of the convention but it relates to adoption and thus is not relevant in this context. Article 23(4) of the ICCPR is to the same effect.

78. To take just one example, Egypt has acceded subject to Sharia law on family relations. For Pakistan, see above n 44. For an extensive discussion of the issues concerning the Convention and the compatibility of many of the reservations, especially by the Islamic States, see R Cook ‘Reservations to the Convention on the Elimination of all Forms of Discrimination Against Women’ (1990) 30 Virginia JIL 643 and B Clarke ‘The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women’ (1991) 85 AJIL 281.

79. W v United Kingdom (1988) 10 EHRR 29, para 59.

80. Article 14. The Committee of Ministers of the Council of Europe on 26 June 2000 adopted Additional Protocol12 to the European Convention on Human Rights and Fundamental Freedoms which would for states party to it, make art14 of the convention a free standing provision which would not have to be pleaded in conjunction with one of the convention's substantive provisions.

81. See eg Hokkanen v Finland (1995) 19 EHRR 139, para 55; Ignaccolo-Zenide v Romania (25 January 2000, unreported). For an account of the cases, see van Dijk, P and van Hoof, G Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer, 3rd edn, 1998) pp 508–515.Google Scholar

82. Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the Hague Convention). The UK ratified the convention on1 August 1986.

83. By virtue of the Child Abduction and Custody Act 1985.

84. The Hague Convention, arts 12 and 13. Beaumont, P and McEleavy, P The Hague Convention on International Child Abduction (Oxford: Oxford University Press, 1999) p 138 Google Scholar, argue that the restrictions are narrowly defined not only to avoid undermining the effectiveness of the convention but also in the light of the stereotype of the typical abductor, ie of the child being snatched from his mother by adisenchanted father, which inspired the delegates. They thus question the narrowness of the exceptions in cases where the primary carer removes the children from the jurisdiction of their habitual residence.

85. The Hague Conference on Private International Law in March 2001 had 49 member states, who are predominantly from Europe, North and Latin America, and Australia. Egypt, Israel, China, South Korea, Morocco and Turkey are also parties to the Conference.

86. E PéArez-Vera Explanatory Report on the Convention on Civil Aspects of International Child Abduction para 34, in Hague Conference on Private International Law, Actes et Documents de la 14iéGme Session, vol III (The Hague, 1982).

87. Turkey and Morocco. Egypt has declared in art 2 of the Constitution ‘Islam is the Religion of the State. Arabic is its official language, and the principal source of legislation is Islamic Jurisprudence (Sharia)’.

88. Burkina Faso, Turkmenistan and Uzbekistan all acceded to the convention in 1992, 1998 and 1999 respectively. The UK has not yet recognised the convention as being in force between itself and Uzbekistan.

89. See eg the discussion of the Hague Convention in the following non-convention cases: G v G (Minors Abduction) [1991] 2 FLR 506; Re F (A Minor) (Abduction: Jurisdiction) [1991] Fam 25; D v D (Child Abduction: Non-Convention Country) [1994] 1 FLR137, although see the later case of Re P (Abduction: Non-Convention Country) [1997] 1 FLR 780 at 789, where Ward LJ very clearly reasserts welfare as the ‘only criterion’ in considering return. In some of the later cases, especially those we discuss, however, discussion of the welfare principle is thin on the ground. See more generally McClean and Beevers, above n 64.

90. A tendency to apply the Hague Convention to non-convention cases was repudiated by the Court of Appeal in Re P (Abduction: Non-Convention Country) [1997] 1 FLR 780.

91. There is a substantial difference of approach between the main sects and also between the various schools of jurisprudence within the sects themselves. For example, some schools award the mother far more rights than others. Although certain schools of jurisprudence tend to predominate in some states, the approach taken by states differs markedly with some subscribing to one school while others amalgamate the approach of different schools, whereas others recognise a differing position in each instance according to the sect and school of jurisprudence followed by the applicants. Other states adopt a predominantly secular approach. See, for example, the terms of art 17 of the Guardianship and Wards Act 1890, which still applies in Pakistan, India and Bangladesh, and its approach to the differing sects and religious groups.

92. It is equally important to note that custody of the children may not be awarded to the father upon their reaching a set age, if the father is deemed unsuitable by a judge, although he would, usually, still remain the legal guardian.

93. The exact distance varies between jurisdictions but some courts have recently become more lenient in thisrespect: see, for example, Hinu Jilani v Souhail Butt NLR (1995) SD 387, although here the court did note that the children who were being removed from Pakistan would be brought up in another Islamic country.

94. The debate within Islamic legal circles concerning discrimination against women as justified by Islam is intense and extensive. We are not taking a position or part in this debate but are referring to how Islam is in practice applied with regard to women in the countries which we discuss.

95. Re S (Minors) (Abduction) [1994] 1 FLR 297.

96. Under s 17 of the Guardianship and Wards Act 1890 the ‘welfare of the minor’ is one of the primary considerations to be taken intoaccountby any court when determining custody issues. See discussions of this provision in Pearl and Menski, above n10, pp 412–430; Farid-ul-Haq, M Law of Guardian and Wards (Lahore: NLTP, 1997)Google Scholar and Awan, H A Comprehensive Manual of Family Laws (Lahore: Comprehensive Publishers, 1997).Google Scholar

97. At 303, emphasis added.

98. At 304.

99. This is a change from his approach in D v D (Child Abduction: Non-Convention Country) [1994] 1 FLR137

100. As, for example, the prohibition on female circumcision which is often justified on cultural perspectives and practices as being in the best interests of the child in not being ostracised by the cultural group at large. Also see Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision) [2000] 1 FLR 571.

101. At 305.

102. Ibid.

103. At 302–303.

104. Re M (Abduction: Peremptoty Return Order) [1996] 1 FLR 478.

105. Ie the period of idaat which is the position accepted by the majority ofjurists as the minimum obligatory period of maintenance payable by a husband to his wife upon divorce. The payment of maintenance for the children is a completely separate issue under Islamic law which Waite LJ compounds into one.

106. At 481.

107. At 480, emphasis added.

108. Re JA (A Minor) (Abducfion:Non-Convention Country) [1998] 1FLR 231

109. Ibid at 244.

110. Re E (Abduction: Non-Convention Country) [1999] 2 FLR 642.

111. At 646.

112. Ibid at 650, citing Lord Donaldson in Re F (A Minor) (Abduction: Jurisdiction) [1991] Fam 25.

113. See text at n 120–130 below.

114. See, for example, the Concluding Observations of the Committee on the Rights of the Child on the report submitted by Sudan under art 44 of the Children's Convention, UN Doc CRC/C/lS/Add10 (Fourth Session, 1993).

115. Sudan, which is not a party to the 1979 Convention on the Elimination of Discrimination Against Women, has a notoriously bad human rights record: see eg Amnesty International's Annual Reports on Sudan, especially those since1996, and the Concluding Observationsof the Human Rights Cornmittee on Sudan's Report under art 40 of the ICCPR (Sudan/19/11/97 CCPR/C/79 Add 85). A consequence of numerous internal conflicts, and a very orthodox ‘Islamisation’ process in its legislature in Sudan in the recent past, has been the further erosion of the protection of the rights of women where they exist, see further Ayubi, N Political Islam: Religion and Politics in the Arab World (London: Routledge, 1991) pp 104–113 Google Scholar.

116. At 651.

117. Ibid at 650.

118. Ibid.

119. MacCormick, N Legal Reasoning and Legal Theory (Oxford: Oxford University Press, 1978) p 106 Google Scholar.

120. In French it is translated as courtoisie infernationale and in German as VöUlkercourtoisie, both of which can be equated to international courtesy.

121. M Akehurst ‘Jurisdiction in International Law’ (1972-3) 46 BYBIL145 at 215.

122. Ibid at 216. For an extensive and more up to date study of comity, see J Paul ‘Comity in International Law’ (1991) 32 Harv Int LJ 1.

123. North, P and Fawcett, J Cheshire and North's Private International Law (London: Butterworths, 13th edn, 1999) p 4 Google Scholar; to the same effect Collins, L (ed) Dicey and Morris on the Conflict ofhws (London: Sweet and Maxwell, 13th edn, 2000) pp 5–6 Google Scholar.

124. As argued in the context of forum non conveniens.

125. At 480–481.

126. See, for example, amongst many others, the Pakistani abduction cases of Christine Brass v Dr Javed Iqbal PLD 981 Pesh110 and Sara Palmer v Mohammed Aslam 1992 MLD 520, where, in both cases, Pakistani males had abducted their children by Canadian and British citizens respectively and brought them to Pakistan and the mothers had sought relief before the Pakistani courts. In both cases, the Pakistani courts awarded custody and guardianship to the fathers, as they considered it preferable and in the children's best interests to be brought up by their Muslim fathers in an Islamic environment. Comity or reciprocity was not a consideration.

127. At 649.

128. Ibid at 650.

129. At 1036.

130. R v Secretary of State for the Home Department, exp Jain [2000] Imm AR 76 and R v Secretary of State for the Home Department, exp Adan and Others [1999] 1 AC 293.

131. Cheshire and North, above n 123, pp 123–128.

132. See above, text to n 61.

133. At 31, emphasis added.

134. Article1.

135. Soering v UK (1989) 11 EHRR 439. The European Court decided that Soering's extradition for murder to the United States where, if convicted, he might be subjected to inhuman and degrading treatment would breach of art 3 of the convention, by virtue of his being kept on ‘death row’ in Virginia.

136. At para 113.

137. The mother did not return to Sudan in this case. We are grateful to the solicitors dealing with the case for this information.

138. It has been argued that in convention cases as well, the courts play down the danger to the mother, who has abducted a child, of for example domestic violence. See M Kaye ‘The Hague Convention and the Flight from Domestic Violence: How Women and Children are Being Returned by Coach and Four’ (1999) 13 IJLPF 191.

139. Article 20 of the Hague Convention reads: ‘The retum of the child under the provisions of Article12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ’ See the discussion by Beaumont and McEleavy, above n 84, pp 172–176.

140. It is simply omitted from the Child Abduction and Custody Act 1985, Sch 1.

141. Lord Advocate, HL Official Report, 5 March 1985, vol 460, col 1261.

142. The Lord Advocate also expressed the view that where the article was relevant to an issue, ‘the judges.can of course have regard to it’. In Re K (Abduction Psychological Harm) [1995] 2 FLR 550 at 556, Leggatt LJ held that it could only be referred to in interpreting other provision of the Convention.

143. See Eekelaar, J ‘Families and Children: From Welfarism to Rights’ in McCrudden, C and Chambers, G (eds) Individual Righls and the Law in Britain (Oxford: Clarendon Press, 1994).Google Scholar

144. For a discussion of these, see Herring, J ‘The Welfare Principle and Parent's Rights’ in Bainham, A, Sclater, S and Richards, M (eds) Whar is a Parenr? : A Socio-Legal Analysis (Oxford: Hart, 1999)Google Scholar.

145. Above n 63.

146. On this approach in contexts other than abduction, see J Herring, above n 144.

147. Above n 108.

148. Re C(A Minor) (Abduction) [1989] 1 FLR 403, per Butler-Sloss LJ at 410 and see Beaumont and McEleavy, above n 84, pp145–149.

149. This same approach can be seen in the Court of Appeal's decision in R v Secretary of State for the Home Department, exp Jain [2000] Imm AR 76.

150. At 305.

151. R v Secretary of Statefor the Home Department, exp Sivakumaran [1988] AC 958 at 994 and 1000.

152. Extradition Act 1989, s 6(l)(d).

153. R v Governor of Pentonville Prison, exp Fernandez [1971] 1 WLR 987 at 994.