As has been widely reported, Lord Phillips, the Lord Chief Justice, has weighed in to the argument over the relationship between sharia law and English law. I suspect that there may be some misconceptions about what he said, so to clarify, he made it clear that there was no place for sharia courts in this country and insisted that all residents were governed by the laws of England and Wales. What he did say was that there was no reason why sharia law's principles could not be used in mediation.What do I think of this? Well, from the point of view of reason it is, of course, extremely sad that, in the twenty-first century, so many people still cling to stone-age delusions of supernatural beings. However, from a legal point of view I don't necessarily have any objection to 'sharia mediation' provided that both parties are free to choose this route and, as with other forms of mediated settlements, they are subject to the approval of the English courts - i.e. the settlement is not final and binding until incorporated into a court order, which will only be made if the settlement is in accordance with the principles of English law.
Like you, I have little time for supernatural beings, though there are plenty of other, secular, beliefs which are no less irrational and dangerous, and which influence thinking on family justice (e.g. Cath Elliott in Wednesday’s Grauniad ranting about the ‘patriarchal hegemony’).
ReplyDeleteOn the same day I had an interesting conversation with a Muslim lawyer (not family) who has offered to put me in touch with some family Shariah lawyers. It promises to be an interesting discussion. Our home-grown system does not work, partly because it still carries a cultural heritage of criminal law, and I am prepared to accept that we could learn from other systems, particularly in the area of mediation. Apparently many Muslims are not registering their marriages in the British legal system so that should they divorce they won’t have to use our family courts. Very wise.
I am sceptical of your recommendation that mediated agreements be integrated into contact orders; that seems to me to be risking the breakdown of such an agreement – why not just leave it be? I am tending towards a position (lawyers will hate this) which ceases to treat these disputes as legal matters. For example, in her (fairly damning) report on conciliation last November, Liz Trinder (with whom I usually disagree) suggested recasting contact disputes as public health issues; she wrote, ‘mediation with a clearly therapeutic orientation and emotionally-informed content can have a profound and enduring impact on relationships’.
Yes, when I used the term 'settlement', I was really referring to financial settlements. So far as children are concerned, we do have the 'no order' principle, so agreed arrangements are not usually incorporated into a court order. Of course, if those arrangements break down, there will be no order to enforce.
ReplyDeleteHe did expressly defend Rowan Williams, though, John, which is why I've gone for the Phillips jugular as well.
ReplyDeleteYes, I did notice that... ;-)
ReplyDeleteJohn,
ReplyDeleteThere is absolutely no guarantee that both parties will enter such a mediation willingly.
Nor can one assume that these mediations will be fair and without coercion.
I agree entirely. The net effect of this and my other proviso is that I can't see a situation arising where I wouldn't object to sharia mediation.
ReplyDeleteBeam me up, Scottie.......
ReplyDeleteHi LM! Really good to have you back. Hope you get the blog up and running again soon.
ReplyDeleteThanks John :)
ReplyDeleteI am presently bludgeoning Blogger with my redundant copy of Blackstones Criminal Litigation in a concerted effort to have my vanished blog restored to me -its like going 10 rounds with joe Calzaghe, but I shall prevail!!!
Well, it's good to have found a use for Blackstones...
ReplyDelete