Child Custody

• Author: International Law Group

J, the five-year-old boy in question, had a father (F) who was a Saudi Arabian citizen. The mother (M) had dual Saudi Arabian and British nationality, having been born in the U. K. to Iraqi Kurdish parents who had come there as refugees. F and M married in 1999 in Saudi Arabia, but were divorced there two years later. M bore J in April 2000 while in the United States for medical treatment, thus granting U.S. citizenship to J. The parties remarried in 2002. Later that year, M and J sojourned in England with F's concurrence. The visit started out as a holiday but F later went along with their staying in Britain so that M could complete a one-year master's degree course.

During this period, M filed a petition for divorce in the English Family Court. She also applied to the Muslim Council in London to obtain a divorce according to Shariah law derived from the Koran. F then applied for a specific issue order to have J summarily sent back to Saudi Arabia. F did not deny that the marriage was over, and that M should continue to care for J. On the other hand, he urged that the court order both of them to live in Saudi Arabia. The first instance judge held that, except for one factor, J's return to Saudi Arabia would seemingly be in his best interests in the sense that his future might best be determined according to the norms of his own society. The decisive contrary elements were (1) that F had raised (and then withdrawn) charges about M's having an affair with another man and (2) that these allegations would have a disastrous impact on M and J under Saudi Arabian Shariah law. The judge therefore exercised his discretion to decline to make the order F had asked for.

The Court of Appeal (Civil Division) held that there could be no criticism of the judge's flawless direction on the applicable legal principles. Nevertheless, it allowed F's appeal, ruling that the judge had a much greater concern that F might again bring up M's alleged misconduct in the Shariah court than the evidence warranted.

M appealed to the House of Lords. In an opinion by Baroness Hale of Richmond, the Lords of Appeal reverse the Court of Appeal and reinstate the trial judge's ruling.

In addition to the proper extent of the trial judge's discretion, the issue arose as to how, if at all, it was relevant that the laws and procedures in Saudi Arabia differed from those that would apply if an English court were to determine J's future. F argued for a strong presumption that it was...