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Jean-Yves Gilg

Editor, Solicitors Journal

Children: an Islamic law perspective

Children: an Islamic law perspective


Islamic law determines the best interests of a child differently from English law, says Raffia Arshad

Many Muslims choose to raise their children in accordance with Islamic practices and culture based on Sharia law. Sharia is not given effect in the English legal system, but when considering the welfare of a Muslim child, what scope do English courts have in giving weight to the Sharia in determining the child's best interests?

There are two primary sources of Sharia law namely the Qur'an and Ahadith. The Qur'an is revelation from Allah to Prophet Muhammad (peace be upon him) through the Angel Jibrael (Gabriel) and Ahadith are the teachings, sayings and conduct of the Prophet. Muslims are divided into two main sects namely Sunni and Shia. Although the Sunni-Shia divide is historically political, the two sects do differ on interpretation of Sharia. Within the Sunni sect, there are four schools of thought or law: Hanafi, Maliki, Shafi and Hanbali. The majority of Muslims in the UK are Sunni and adhere to the Hanafi school of thought.

When a court determines any question with respect to the upbringing of a child, the child's welfare is considered to be the paramount consideration. The welfare checklist includes consideration of the child's 'educational needs' which may include their religious upbringing and a child's 'background and any other characteristics which the court considers relevant' which can include preserving links with family culture and heritage.

Lineage is a very important principle in Islam and it is to be preserved wherever possible. The concept is so important that where adoption takes place, the child should retain the name of his father, if known. The Prophet Muhammad himself adopted a child namely Zayd who the Sahabah (companions of the Prophet) began referring to the adopted son as 'Zayd bin Muhammad' '“ which means Zayd son of Muhammad. It was revealed to the Prophet Muhammad that Zayd should not be referred to as the son of Muhammad, but retain the link to his own biological father: he was referred to as Zayd bin Thabit.

The issue of residence and contact, while not directly dealt with in the Qur'an, is dealt with explicitly in Ahadith. Islamic scholars have divided the upbringing of a child into three categories: 'Wilayah Hadhana' which literally translates as 'Guardianship of the Infant', 'Wilayah at-Tarbiyyah' which is 'Guardianship of Education' and a third category 'Wilayah al-mal', 'Guardianship of Wealth'.

Any adult entrusted with the guardianship of a child must do their utmost to protect the wealth of that child. For example, the Qur'an is explicit in condemning those that usurp the wealth of orphans.

There is a general consensus among the Islamic scholars that during the stage of 'Wilayah Hadhana', a young child in his tender years should be brought up by his mother. The right of custody is not automatic but conditional. Two such relevant conditions include firstly, sanity and majority of the parent and secondly, ability to act in the child's best interests. Thus, any decision as to who will bring up the child in their early years will be measured against the yardstick of 'best interests'.

In comparison, under English law there is no presumption of law that a child of any given age is better off with a parent of a certain gender. There is no rule to say that fathers cannot be sole carers for their children (Re W (a minor) (Residence Order) [1992] 2 FLR 332). However, if all factors are balanced it is probably right for a child of tender years to be with their mother (Re W (a minor) (Custody) [1982] 4 FLR 492).

Islamically, as the child grows older (for Hananfi's this is age seven) the child's wishes and feelings are given the appropriate level of weight bearing in mind the level of maturity. The older the child, the more weight given to his wishes and feelings.

It is usually the father's responsibility to ensure that the child receives the appropriate education (Wilayah at-Tarbiyyah) although there is no reason why the mother should be excluded from performing this duty. Because this duty is the responsibility of the father, he can choose to seek residence of the children at this stage. He could however continue to perform this duty while the children remain with their mother and have regular contact with the children. The passing of guardianship from mother to father, for example, from Wilayah Hadhana to Wilayah at-Tarbiyyah is not considered a breach of the right to family life under Article 8 of the Human Rights Act 1998 (EM (Lebanon) v Secretary of State for the Home Department [2006] EWCA Civ 1531).

Of course, whatever decision is made the outcome would need to be measured against the best interests of the child and due weight given to the children's wishes and feelings.

Contact is very much encouraged in Islam. The resident parent should promote and encourage contact with the non-resident parent. Islamic scholars have not defined the frequency as such but indicated the appropriate level to be once a week. Parties can sometimes stipulate residence and contact in their marriage and/or divorce agreements (Re J (a child) (return to foreign jurisdiction: convention rights) [2005] 3 All ER 29).

Practitioner points

Quite often in cases involving Muslim clients, a practitioner can be reluctant to put forward an argument on the basis of it being in accordance with Islamic family law because of the uncertainty in whether such issue will be given any weight in court. It is quite clear that the welfare checklist gives consideration to a child's cultural and religious background and that includes matters relating to Islamic family law.

There may be occasions when preserving a child's cultural heritage is in his best interests, for example the importance of lineage for a Muslim child when considering change of name. To meet the needs of Muslim clients, a practitioner should be aware of religious considerations that affect the best interests of the child and the impact that could have on the outcome of a case.