The custody battle over a 12-year-old girl who wanted to be with her father in Pakistan has highlighted the difficulty of squaring English and Muslim family law, says Grania Langdon-Down


The custody battle over the 12-year-old girl who, as Molly Campbell, disappeared from her Scottish home in August only to reappear as Misbah Rana, happily hugging her father and sister in Pakistan, has been presented as a clash between Islam and the West.



Amid a flurry of claims and counter-claims, the initial media reports that Molly had been abducted against her will were soon turned on their head when Misbah spoke of her desire to be with her father and siblings in Pakistan because the Muslim culture suited her better and her mother’s home had become a ‘living hell’.



A Pakistan court has now ordered her to return to her mother, who was awarded interim custody in the UK last year, where her future will be decided at the Court of Session in Edinburgh. Her father is appealing.



But what should family practitioners be aware of when they are acting for Muslim clients over marriage, divorce and children?



Barrister Hajj Ahmad Thomson sets out the basic principles of Sharia law in a paper he has written on accommodating the Islamic law on dissolution of marriage within English law.



‘Sharia literally means “a road”, a way you travel along, not an end in itself. How you travel that road is your way of life,’ he explains. ‘The Sharia is concerned primarily with defining relations towards God and secondly with governing relations between people – marriage, children, divorce, commerce, crime and punishment, governance, international relations, war and peace, death and inheritance.’



Mr Thomson, who is deputy chairman of the Association of Muslim Lawyers (AML), stresses how important it is for family practitioners to learn about different religions and cultures. ‘I have Muslim clients who say they need to speak to a Muslim lawyer because non-Muslim lawyers won’t understand their situation. But any family practitioner who wants to find out the basics of Sharia will find it is possible to advise their clients with confidence and empathy on both English and Islamic law.’



The Law Society and the AML recently hosted a seminar on Islamic family law and the legal issues involved in the upbringing of a Muslim child. The seminar covered custody, including contact and duties such as education, maintenance, circumcision and pilgrimage, and taking children to a Muslim country that has not signed up to the Hague Convention on international child abduction. It also explored the Pakistan Protocol agreement between the judiciary in Pakistan and the UK, that children’s cases should be considered in the country where they are habitually resident.



AML chairwoman Ifath Nawaz says there is huge demand for such seminars, reflecting the extent to which lawyers are being asked to advise on these issues. ‘Practitioners are honest enough to ring the Law Society and say they don’t know the answer to issues about Sharia law and to ask for help. We will be taking these seminars to the midlands next and then up north, as it is in everyone’s interests that practitioners are armed with the best knowledge to advise their clients.’



Nazia Rashid, a family partner at London firm Docklands, says Muslim clients will often see their religion and culture as separate from English law, so their lawyer may not know what is going on in the background. ‘I had one client who was getting divorced ten years after their civil marriage in the UK. It was only in the second or third meeting that I found out they had been legally married in a religious ceremony in their home country about five years earlier, so they had actually been married for at least 15 years. The length of a marriage can sometimes have an effect on the financial settlement.’



Marriage under Islam is a contract, called the Nikah. Under the contract, if the couple seeks a divorce (or Talaq), the husband is under a duty to maintain his children, but his obligation to pay maintenance to his wife lasts for only a short period, after which she is expected to be supported by her family. That can seem ‘barbaric’ among nuclear families, says Mr Thomson, but makes sense within Muslim extended families.



Problems can arise because Muslim marriages contracted here are not recognised in this country, although if they take place in a country where they are recognised, then they will be valid in the UK. If couples marry under Islamic law here and do not also go through a civil ceremony, they will find that, if their marriage breaks down, they will be treated under English law as cohabitees. They can be worse off financially, but their situation may improve if the Law Commission’s recommendations on improving the rights of cohabitees go ahead.



Ms Rashid, who wears a headscarf, finds she is often questioned by clients about Islamic law. ‘More and more couples, especially young professional couples, are turning to their faith and want to live by it.’



However, she says it is important that couples married under both laws divorce under both laws or they can find themselves in limbo, unable to remarry.



But how should practitioners advise Muslim clients to resolve their financial issues, particularly Muslim women, who may receive more under English law, given that the English courts are currently viewed as very ‘wife-friendly’?



Mr Thomson says: ‘Every practitioner has to advise their clients as to their best interests within the context of English law. Therefore, they have to set out how much a wife could expect to get under the English system. But if they have the sensitivity to recognise that the parameters of Sharia law are different, they might also raise that with their client.’



Both Mr Thomson and Ms Rashid stress the importance of practitioners getting to know their local Sharia councils, which would be responsible for pronouncing the Islamic divorce, so there is a greater understanding between the two.



When it comes to children, Ms Rashid says: ‘Under Islamic law, children under seven generally stay with their mother, and over seven they go to their father. You hear claims that Islamic law is patriarchal and male-dominated, but that is the extreme. In the majority of cases, fathers want their children to stay with their mother so long as there is contact.’



What is important, she says, is that contact orders take account of important religious ceremonies and customs, such as Eid and Ramadan.



District Judge Azmat Nisa helps provide judicial training on Sharia law. When it comes to children, she says the central principles in Sharia and English law are compatible because, in both, the welfare of the child is paramount, although there are ‘big differences’ in other areas such as maintenance. Where ‘fireworks can arise’, she says, is when one parent wants the children brought up very strictly as a Muslim – or wants their daughter to wear the veil – and the other does not. That calls for ‘a very difficult balancing act by the judge’.



She stresses the need for judges to be fully culturally and religiously aware. ‘Islam is a universal religion incorporating very different cultures. They may come across someone from an African state who claims that having his daughter circumcised is a religious right. Yet to other Muslims that is a horrific practice, which is a cultural tradition, not part of their religion.’



Family lawyer Anne-Marie Hutchinson, a partner at London firm Dawson Cornwell, says it is important that the profession becomes ‘more geared up’ to the needs of Muslim clients. She acts for victims of forced marriages. ‘Before a case called Re T, it was immensely difficult to get public funding for the marriage to be annulled. The Legal Services Commission would say “just get a divorce”. But, for a Muslim woman, the concept of divorce is very serious.’



Ms Hutchinson says practitioners do not always take on board ‘the whole inter-familia nexus’ in Muslim families, where cousins will often marry. ‘We might have expectations that if a woman is claiming domestic violence, her family will be witnesses but that may not happen – they may even give evidence against her and often judges will attach quite a lot of weight to that.’



As Mr Thomson concludes: ‘Solicitors need to have an understanding of different religions and cultures. They don’t have to believe in it themselves – but if they know what their client believes in, it will help them help their client.’



Grania Langdon-Down is a freelance journalist