Dr Naheed Wali Ghauri, an Associate Research Fellow at the School of Law, Birkbeck College, University of London and non-stipendiary Research Fellow at the Woolf Institute, Cambridge, discusses domestic violence before Shari’a councils and mediation under English and Islamic Forum.
Domestic Violence, Mediation and Muslim Women in Nikah only Marriages
Domestic violence is one of the most difficult forms of power imbalance to address and training is given by regulators and professional mediation bodies as to when it is suitable to mediate and how to manage mediation in domestic violence cases. It is exactly this power imbalance that needs to be corrected or there is a risk of negotiations being dominated by the stronger party’s norms and needs resulting in non-consensual settlement. Mediators can intervene but there is a risk of imposing certain options on the parties, this must be done knowingly so that the outcome is not influenced and impartiality is retained.
Muslim women in void or non-marriage/non-existent (religious only marriage (Hudson v Leigh  EWHC 1306 (Fam),  2 FLR 1129) in which Bodey J set out the test to determine the status of a non-marriage) approach Shari’a Councils (SCs) for a divorce and the process should be demystified. The test for a non-marriage is re-visited in a recent case (without engaging with the Marriage Act 1949) involving domestic violence, Akhter v Khan and the Attorney General  EWFC 54, Williams J adopted a flexible human rights approach (avoiding the pitfall of a non-marriage) engaging Article 8 and 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) and declared the marriage void (it is invalid ab initio and it is susceptible to a decree of nullity) availing financial protection to the wife pursuant to section 11 of the Matrimonial Causes Act (MCA)1973 (see, Valentine Le Grice, ‘A Critique of Non-Marriage’  43 Fam Law 1278, Rebecca Probert, ‘The Evolving Concept of Non-Marriage’  25 CFLQ 314). This case was not about whether the nikah (religious) marriage is valid in accordance with the Marriage Act 1949 but rather void marriage versus non-marriage (this required more analysis and creativity by the judiciary). The key question to determine was whether Article 8 has been breached? The legitimate aim is to protect the vulnerable Muslim women.
Examining the ways in which Islamic arbitration and mediation offers a panoply of conflicting images, contradictions and incompatibility with English family law and public policy. This article argues in favour of egalitarian principles when conducting Islamic arbitration and mediation rather than the use of traditional non-egalitarian principles and having safeguards to prevent abuse, remove power imbalances and monitor the standard of justice.
Domestic Violence and Role of Mediation under English and Islamic Mediation
Domestic violence relating to Muslim women attracted attention since BBC Panorama recorded Dr Suhaib Hassan of Leyton Shari’a Council, (Hanbali scholar) giving advice in a domestic violence case contrary to UK family law, mediation and Islamic egalitarian principles (BBC Panorama, ‘Secrets of Britain’s Sharia Councils’, 2013). Hassan denied these allegations made by BBC Panorama. The most obvious concern is the autonomy and independence of women during Islamic arbitration and mediation process. In particular, the importance of assessing the effectiveness of the mediation and evaluating the response of women towards reconciliation practices.
This role varies between facilitative, evaluative, transformative, narrative and places different values on how active the mediator is in the substantive resolution of a dispute and how the mediator conducts the mediation session. The English mediation process is governed by four principles: mediation is voluntary, both parties and the mediator must agree mediation is suitable; mediation is confidential except where there are concerns of risk of harm to a child or vulnerable adult; the mediator is impartial and facilitates negotiation and has no vested interest in the outcome; and the decision-making rests with the parties. Mediation is a non-litigious forum adopted by family courts in England and Wales and this has been the preferred method also adopted by Islamic egalitarian models rather than the use of non-egalitarian models based on traditional shari’a. The Islamic mediation process is not homogenous and the religious scholar occupies a very different role and is not just a facilitator but can influence decisions and outcomes to reconcile. The Islamic mediator deviates from the English mediation principles of impartiality, voluntariness, confidentiality, and procedural flexibility (see Lisa Parkinson, ‘The Place of Mediation in the Family Justice System’  25 CFLQ 200 and Shaheen Sardar Ali, ‘Authority and Authenticity: Shari’a Council, Muslim Women’s Rights and the English Courts  25 CFLQ 112). Islamic mediation is based on the Qur’an-Sunna and mediation is conducted by senior scholars. The Government encourages adversarial approach in family cases, mediation and arbitration is the preferred forms of alternative dispute resolution (ADR).
In a recent report by Professor Shazia Chaudhry and Women’s Aid (Joint report with Women’s Aid England (2018), ‘what about my right not to be abused?’ Domestic abuse, human rights and family courts, accessed on 08.11.2018 at demonstrated how the culture of the English courts could reinforce the inequalities and oppressive social constructions. Rule 3.3 of the Family Procedures Rules 2010 requires a court to consider at every stage in proceedings whether non-court dispute resolution is appropriate, for example, in AI and MT  EWHC 100 (Fam), Baker J cautiously considered a Jewish Beth Din agreement and requested further information as it had to comply with English family law and public policy. Rule 3.4 gives power to the court to adjourn proceedings to allow dispute resolution to take place (including within SCs) if it is appropriate. Similarly, the Civil Procedure Rules 1999 (CPR) enable a court to stay proceedings for a specified period to allow settlement even if the parties do not agree (see rules 1.4 (2) (e) and 26.4 (2A) of the CPR). There is a general requirement for couples to attend a Mediation Information Assessment Meeting (MIAM) before issuing an application for a financial order or child related orders (section 10 (3) of the Children and Families Act 2014 and the Family Procedure (Amendment No.3) Rules 2014, SI 2014/843. MIAM can be ordered as an activity under section 11A and 11C Children Act 1989. FPR Rule 3.8 (1)/ (2) sets out the circumstances in which the requirement to attend a MIAM does not apply. The main exemptions are: domestic violence/child protection, bankruptcy, the unavailability of an authorised mediator within a specified geographic area or timescale, or a MIAM has already been attended in the four months prior to making the application. The Family Mediation Council (FMC) provides further information about mediation.
However, in Islamic mediation victims of domestic violence seeking recovery of mahr (marital or nuptial gift) or even maintenance from SCs are required to attend mediation before any divorce can be finalised. Most mediation agreements reached are contrary to English family law bargaining over mahr, finances and children. Mahr is often forfeited in domestic violence cases resulting in the wife instigating divorce (khula – divorce instigated by the wife) proceedings. Mahr is used as a tool of relative bargaining power in the negotiations of contractual obligations related to family law. Therefore, the exceptions to MIAM under English law are relevant because SCs maintain that they adhere to and respect civil family law and cannot act contradictory to English law. Empirical evidence demonstrates that their practice is contrary to English law (Report on the independent review into the application of shari’a law in England and Wales also known as the ‘Siddiqui Report’ (February 2018)). A party may feel pressurised to settle on less favourable terms than the case merits because of financial need, the leveraging of access to children and/or a lack of resources to proceed to litigation where legal aid is unavailable. Pre-existing power imbalances between the parties as well as a history of domestic violence may also feed into the more deserving party agreeing to less in financial claims. Safeguards are necessary to ensure delivering justice and fairness.
Safeguards for Islamic Mediation – Informal to Semi-Formal
A legitimate concern is a lack of procedural safeguards and the risk of ‘unregulated coercion and manipulation’ inheres the process of mediation. Concerns about Islamic mediation operating a ‘parallel system’ to English mediation attracted criticism from politicians, academics, lawyers, practitioners and women’s rights’ activists. It is important to ensure that those who participate in any kind of ADR/mediation do so freely, particularly the problems highlighted with SCs, empirical evidence demonstrate that they are sometimes coercive and discriminate against women (See ‘Siddiqui Report’). Critics are concerned about SCs issuing rulings that are inconsistent with UK family law (Al-Midani v Al-Midani  1 Lloyd's Rep 923. the Islamic Shari’a Council of London had ruled that as a female the beneficiary was entitled to only half the share of a male heir).
It is argued that strict scrutiny is needed as the defining principles of autonomy and self-empowerment are lessened when ADR is driven by the interests of the state instead of by party consent. Another legitimate concern with reference to SCs is, ‘what are the justice standards of the ADR/mediation provided by SCs?’; the public value of courts versus the public value of the ADR/mediation system used by SCs. Critics of ADR maintain that there is a lack of transparency on procedural grounds; this is a prominent problem in SCs (a poor standard of justice delivered within ADR/mediation).
Free legal advice sessions and risk assessments (a screening and intervention process) should be introduced to those litigants in person seeking divorce and settlement by consent orders. However, English mediation is covered by the Family Law Protocol which recommends several safeguards stipulating that mediators are to be properly qualified, trained, and accredited. The procedures used in Islamic ADR/mediation need to reflect fairness and compliance to Islamic egalitarian principles and English law (MIAM exemptions). The state could play an important role to make informal mediation into semi-formal mediation by encouraging the appointment of a legally qualified mediator/lawyer under English law to work in partnership with SCs. It would also assist to introduce a process of accreditation similar to the English mediation for family lawyers so that minimum standards are observed. For example, the Family Mediation Council (FMC) provides the Code of Practice for Family Mediators.
Three recommendations made in the Siddiqui Report are: legislative change to the Marriage Act 1949, the Matrimonial Causes Act 1973 and introducing new criminal offences (R Probert, ‘Criminalising Non-Compliance with Marriage Formalities? Fam Law 702) but legislative changes are a slow process (criminalisation may be viewed as a biased measure against Muslims and not against any other religious group); building to raise awareness campaigns about civil rights of women (for example, Aina Khan’s campaign to ‘Register Our Marriage’ – www.ainakhan.com/register-our-marriage/ accessed 28.11.2018) and to introduce some form of regulation by setting up a body with a one-off cost to the government (the problem of internal discrimination needs to be tackled within SCs) (See ‘Siddiqui Report’ at 17-18)
Safeguards under English Law and Court obligations to Review Opportunities for non-Court Dispute Resolution
Apart from MIAM exemptions, an important aspect of safeguards under English mediation is addressed under FPR Rule 3.3 which requires judges to review opportunities for non-court dispute resolution, if appropriate, when deciding on allocation and in any event at the first hearing. The judge can assist parties, especially litigants in person, to understand the options with or without mediation. In addition, the family mediation is a heavily regulated profession compared to civil and commercial mediation. Most family mediators are mainly family law practitioners but can include others working in counselling profession and non-practising practitioners are rarely admitted to the mediation profession. Professional accreditation assists to maintain high standards and compliance of trained mediators by the Law Society Panels, Resolution, FMC and the College of Mediators. The Family Justice Council (2007) recommended a ‘process of risk assessment should be undertaken by the court in every case in which domestic violence has been alleged or admitted, before a consent order is made’. These recommendations were within the subsequent Practice Directions Residence and Contact Orders: Domestic Violence and Harm, issued in 2008 and updated in 2010 (12J FPR 2010 and further revised in 2014 and see Domestic Violence Intervention Project).
Legal practitioners in England explore the implementation of a non-adversarial approach to resolving matrimonial disputes in national and transnational family law context (as mentioned attending MIAM) and the state expects family law disputes to be resolved outside the adversarial court process. Family lawyers trained in mediation undertake a much more nuanced approach and various approaches are adopted for example, descriptive approach (day to day practice of mediation) or settlement approach to avoid a litigious approach.
The current public policy addressing the dichotomies of the secular and Islamic jurisdiction does require the government to take more creative steps to address the divide and set up safeguards for Islamic arbitration and mediation to deliver justice. English mediation has a lot to offer by incorporating safeguards, fairness and a just process than the present models adopted by SCs. However, if egalitarian principles are adopted then Islamic mediation can offer a lot and be compatible with English principles of justice. The state can play an important role to protect vulnerable women and young children caught up in domestic violence cases. This can be by way of providing safeguards and by working closely with the Muslim community to improve the standard of justice delivered, procedural fairness, English lawyers/mediators working with SCs, training courses on risk assessment and accreditations. Victims of domestic violence in a religious only marriage have very little ‘legal/religious’ redress from English family courts and approach SCs to be released from these violent religious marriages. Some Muslim women in nikah marriages claim that they have no choice but to attend mediation at SCs and this conflicts with MIAM’s exceptions under English family law. Scholars at SCs deny that victims are asked to mediate because this is also contradictory to Islamic egalitarian principles.
Dr Naheed Wali Ghauri is an Associate Research Fellow at the School of Law, Birkbeck, University of London and a non-stipendary Research Fellow at the Woolf Institute, University of Cambridge. She is currently writing her doctoral thesis as a monograph on informal arbitration, mediation relating to domestic violence and Shari’a Councils interacting with English family courts and human rights. Her current research focuses on religious arbitration and mediation.