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Questionable inclusion, appalling exclusion

by Werner Menski
Members of Britain’s immigrant communities often face discrimination and abuse of their rights because their understanding of family law is not officially enforced. Legal pluralism has become a reality in many European countries, but governments refuse to recognise this fact. Simply insisting on a formal understanding of the “rule of law” is no solution, but rather leads to significant aberrations. [ By Werner Menski ]

It is well known that migrants do not just abandon their ways of life, including religion, when they arrive in Europe. Rather, they reconstruct their lives on their own terms. Migrants and their descendants have thus developed what plurality-conscious legal theorists recognise as “living” laws. These are border-transcending rules people of a given community adhere to. Officialdom in Europe, however, disrespects living law, considering it evidence of virtual illegality, and tends to punish those who adhere to it. The result is deprivation of fundamental rights and blatant discrimination.

While we are used to reports of human rights abuses by governments in Asia and Africa, close legal analysis of how ethnic minorities are treated in Europe points to equally worrying evidence. There is a lack of accountability and a culture of virtual impunity right in our midst.

In Britain, policymakers have recently been focussing on “inclusion” after decades of navigating the troubled waters of multiculturalism. The new trend goes along with some significant violations of people’s rights, however, they are proof of exclusion, not inclusion. For instance, the newly coined term “vulnerable adults” often serves not to protect individual human rights, as is claimed, but in truth to terrorise ethnic minority families. Perfectly valid marriages are declared invalid under English law, and children are taken away from their parents. Such action runs roughshod over principles of private international law.

Overburdended family

Consider, for instance, the following case: a young Bangladeshi man, who lives in London and suffers from autism, agreed (at the behest of his parents) to marry a female cousin in Bangladesh over the phone. This arrangement is valid under shari’a law and the civil laws of Bangladesh. Therefore, it is also valid according to the principles of private international law.

Nonetheless, the Council of the City of Westminster refused to recognise their marriage. It did not matter that the young woman had explicitly agreed to the arrangement and that she had known all along that she would effectively become a carer for her severely disabled “vulnerable adult” husband and, in due course, for his parents.

The Court of Appeal in London finally accepted that the marriage was valid in Muslim law and Bangladeshi civil law, but refused to recognise it under English law (Westminster City Council v. IC, [2007] EWHC 3096 (Fam) and [2008] EWCA Civ 198). The case is now pending before the House of Lords. The family has indicated that it wants to move to Bangladesh, but the young autistic man is being denied his passport, as official fear he might want to return with his wife after a formal wedding that would be undeniably valid even under English law.

One must not forget that being dragged to court was an expensive uphill struggle for a family already burdened with the severe disability of one member. For obvious reasons, most people in similar circumstances will shy away from using English law – hence the marriage over the phone. Relying on the judiciary, moreover, is always difficult for people who do not know the language as well as those who have learned it as their mother tongue. Many cases lead to shady out-of-court settlements that are not reported. For all these reasons, it is safe to assume that the public will never learn of the full extent of these problems.

Sometimes children are forcibly taken away from their families and placed in foster care after allegations of child abuse, neglect or “forced marriage”. Currently, family law is a growth area in British legal practice, contributing to lawyers’ incomes but certainly not to the inclusiveness of British society. What is “in the best interests of the child” always depends on any given culture’s value system, which cannot simply be imposed on another culture.

Locally valid, culturally accepted

Divorce is also a controversy-prone issue. Some types of locally valid and culturally accepted informal divorces in India and Pakistan, for instance, are systematically refused formal legal recognition in Britain. Equally informal Japanese divorces, however, are accepted without much discussion.

Sometimes, devious litigants try to fool English judges, exploiting confusing legal scenarios to gain unfair advantages. They are likely to succeed, unless an astute expert rescues the hapless opponent. Typically, the victim will be a woman. For instance, she will suddenly be told that, according to English law, she is still married even though she was divorced earlier in a foreign jurisdiction. On the other hand, devious ex-wives may pursue their former Muslim husbands, claiming that their overseas divorce is not valid and that they should be entitled to an English divorce and ancillary relief.

Such cases indicate that many judges in Britain struggle with matters of private international law, and they are indeed difficult to handle. While knowledge of overseas laws remains deplorably thin, experts of such laws sometimes face mistrust and are treated as mouthpieces of fundamentalist perspectives. Much-needed recognition of value pluralism in today’s multicultural Europe is blocked by lip-service to an allegedly culture-neutral rule of law. However, this approach often leads to gross injustice and irrational distinctions.

Today, state law everywhere is under stress to accept living and “ethnic” law, but mainstream legal analysts normally fail to assess such conflicts properly. The consequences for the persons concerned can be grim. A young Sikh couple, for instance, married in a religious ceremony in a Sikh gurudwara (temple) in London in 1956, but was oblivious of English marriage registration law. The couple did not officially register the marriage, even though they dutifully paid taxes as a married couple.

When the husband died some forty years later, the wife applied for a widow’s pension, but this was refused. The British state that had accepted her marriage as valid for tax purposes did not do so in the pension context. It took this courageous Sikh widow several years of persistent litigation to succeed in her claim and to establish some recognition in English law for presumptions of marriage (Chief Adjudication Officer v. Kirpal Kaur Bath, [2000] 1 Family Law Reports 8 [CA]) before the English Court of Appeal). People in similar situations, however, cannot rely on her case as a precedent. British officialdom still does not generally accept religious ceremonies of all religions as the basis of a legally valid marriage.

This is quite irrational and culturally biased, as the ceremonies of some religions are indeed accepted. For instance, judges recognised the unregistered marriage of a Coptic Christian couple in an unlicensed orthodox church during the 1990s for relief purposes on the ground that “it had the hallmarks of a Christian marriage” (Gereis v. Yagoub, [1997] 1 FLR 854).

In contrast, Muslim “nikah” marriages in England are not recognised to be legally valid, and a Hindu marriage solemnised in a restaurant in Britain was even declared to be “no marriage at all”, though requisite religious rituals had been performed and there was a child of that marriage (Gandhi v. Patel [2002] 1 FLR 603).

In a harsh manner, British authorities have been known in particular to handle marriages in which one of the parties did not have the permanent right to remain in the UK. Ultimately, such efforts were rejected by the Court of Appeal (SSHD v Baiai and others [2007] EWCA Civ 478) as disproportionate and discriminatory, because they exempted couples who could marry in Anglican ceremonies.

Shari’a courts in Britain

The law on ethnic minority divorces remains most difficult to handle in Britain. Earlier, a Muslim “talaq” procedure in London was legally recognised as valid to allow the wife to claim financial entitlements to “mahr” or dower (Qureshi v. Qureshi [1971] 1 AllER 325). But particularly under the Family Law Act of 1986, English law has refused legal recognition to Muslim divorces in the UK and informal divorces abroad as well.

Muslims have responded to such legal hostility by establishing Shari’a Councils in Britain and, most recently, Muslim Arbitration Tribunals have openly begun to settle all kinds of disputes among Muslims. They are also open to non-Muslims as cheap and fast means of informal dispute settlement. A Muslim wife, facing refusal of her claim for a mahr of £ 30,001 by an English court in 2000, was notably granted £ 30,000 after the judge was advised that his refusal to grant the mahr would force her to approach a Sharia Council.

The example shows that drawing neat boundaries between state law and various non-state laws remains heavily contested. The Archbishop of Canterbury caused much media furore in 2008 when he argued that there was need for legal recognition of a legitimate place for Shari’a law in Britain. Legal pluralist perspectives suggest however that British Muslim law, which I call “angrezi shariat”, has become a reality, albeit insufficiently researched and deeply resented.

Scholars should take off their eurocentric blinkers. We need to understand that current practice amounts to shocking official abuses of legal powers and bureaucratic discretion. Unless that happens, it will be impossible to come to terms with increasingly sophisticated and sometimes desperate manoeuvres by individual migrants and certain organisations to secure space for their perceived needs and to protect their cultures and religions.

Growing nervousness about an emerging impasse in legal regulation is presently most evident with regard to Muslim Arbitration Tribunals in Britain. But since 9/11 there has also been some notably silent law-making by Parliament, relating to Islamic finance, divorces and “special guardianship” in child law cases. Such under-researched developments show that the state knows quite well what it is doing, but cannot admit to a nervous electorate that multicultural legal pluralism is now a reality which requires official responses.

Latent resentment against growing globalisation of national legal patterns on the part of officialdom continues to lead to strange abuses that require more detailed analysis, constant careful monitoring and effective opposition. For example, earlier this year a well-qualified law student in London was facing stubborn refusal by the Solicitors Regulation Authority to recognise her legal studies of Asian and African laws as a legitimate component of her qualifying undergraduate degree.

This appeared to be a case of bureaucratic incompetence rather than racist discrimination – but for anyone personally affected, that distinction is hard to make. At my university, I have known good students from ethnic minority families who dropped out of classes or exams because they were nervous about some kind of legalistic harassment they and/or their families faced. On the other hand, the ease with which exclusionary official decisionmaking can still be justified in today’s globalised world demonstrates ongoing difficulties in the bureaucratic management of diversity. Clearly, there remains much to learn with regard to the acceptance of Asian and African laws as an integral component of post-modern 21st century Europe.