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Non-Convention Issues

The House of Lords held that the Court of Appeal had misapplied the core test, for there was no distinction to be drawn between a "flagrant or gross violation" of a right and its "complete denial or nullification". The expressions were to be assimilated, although the fact remained that the test was a very hard one to satisfy.

On the facts of the present case the standard had been achieved, for not only would the mother and child's right to respect to their family life be flagrantly violated on their return to Lebanon, but it would be completely denied and nullified.

Giving the leading opinion, Lord Bingham held that in no meaningful sense could occasional supervised contact visits, outside of the mother's home, be described as family life. The effect of return would be to destroy the family life of mother and child as it currently existed.

In reaching this conclusion particular attention was given by the House of Lords to the nature of family life which existed in Lebanon prior to the move to the United Kingdom. It was noted that there had been no familial contact between mother and father since the birth of the child, the father had not seen the child since the day he was born, and there had been no contact with any members of the paternal family.

The only family life wthat existed, and had existed for at least for the last five years, was that of mother and son. This family life could not be replaced by a new relationship between father and son. In this Lord Bingham recalled the actions of the father towards the mother, the father's imprisonment for failing to support the son, and the son's hostile attitude in respect of the father.

Drawing a contrast with the context which would ordinarily prevail in cases of child abduction, Baroness Hale noted that in the present case it was not the wrongful removal which had interfered with family life for there was no family life between the child and father or the paternal family. There was unanimity on the finding that Article 8 would be breached were a return to be enforced. The Law Lords also discussed Shari'a law as applied in Lebanon.

Lord Bingham noted that whilst the family law applied in Lebanon would fall foul of both Article 8 and Article 14 of the ECHR, Lebanon was not a party to the European Convention. He acknowledged that Lebanese family law reflected a religious and cultural tradition which was respected and observed throughout much of the world.

He therefore questioned whether it would have availed the mother to have tried to rely on the arbitrary and discriminatory character of the Lebanese custody regime had she not shown that the return would have nullified her and her son's Art 8 right to family life.

Lord Hope was more definite in his assessment, he stated: "The return of a woman who arrives here with her child simply to escape from the system of family law of her own country, however objectionable that system may seem in comparison with our own, will not violate article 8 read with article 14. Domestic violence and family breakdown occur in Muslim countries just as they do elsewhere.

So the inevitable result under Shari'a law that the separated mother will lose custody of her child when he reaches the age of custodial transfer ought, in itself, to make no difference. On a purely pragmatic basis the Contracting States cannot be expected to return aliens only to a country whose family law is compatible with the principle of non-discrimination assumed by the Convention." Lord Carswell expressed his support for both views.

Lord Brown did likewise and added: "It is certainly not the arbitrary and discriminatory character of the rule of Shari'a law dictating that at the age of seven a child's physical custody automatically passes from the mother to the father (or another male member of his family)-wholly incompatible though such a rule is with certain of the basic principles underlying the Convention-which, uniquely thus far in the jurisprudence both of Strasbourg and the UK courts, qualifies this particular "foreign" case as one for protection under article 8."

Baroness Hale however did not endorse such a standpoint. In her comments she remarked that the discriminatory laws of Lebanon were the reason why there was a real risk the child would be deprived of the only family life he had or had ever had. They were also the reason why the interference could not be justified. Nevertheless she recognised that it was the effect upon the essence of the child's right which was central in the instant case.

As regards the application of the ECHR where the return of a child to a non Council of Europe State is at issue see also: Eskinazi and Chelouche v. Turkey (Application No 14600/05) [INCADAT Reference: HC/E/ 742].