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Sharia phone marriage of autistic man 'invalid'
By Bonnie Malkin and agencies
Daily Telegraph
Last Updated: 2:55am GMT 20/03/2008
Three senior appeal judges have refused to recognise a Muslim marriage that
took place "over the telephone", even though the union is valid according to
sharia law.
They said the union, between a 26-year-old autistic British man, identified
only as IC, and a woman in Bangladesh was "potentially highly injurious".
The pair have never met and are unlikely ever to meet.
IC's parents, originating from Bangladesh but resident in England for many
years, arranged for him to be married by telephone link to a bride chosen by
them in Bangladesh with a view to his new wife, referred to as NK, obtaining
a visa and joining him in this country.
The marriage was valid under sharia law and the law of Bangladesh and
lawyers for the parents argued that it should therefore be recognised in
English law.
But giving judgment in the case, which was brought by Westminster Social and
Community Services Department, the Court of Appeal said IC was unable to
give valid consent to marriage under English law.
The court heard he does not function above the level of a three-year-old and
is said to be highly suggestible and vulnerable. He therefore lacked the
capacity to marry and consent to sexual intercourse.
Lord Justice Thorpe, sitting with Lord Justice Wall and Lady Justice
Hallett, said the local authority had been supporting and protecting IC
since the age of four.
He received home care five mornings a week before attending a day centre,
plus a high level of respite care.
"The role of marriage in the life of one so handicapped is inconceivable in
our society, and as a matter of law marriage is precluded," the judge said.
The Muslim ceremony took place in September 2006.
The judge said the marriage arranged by IC's parents was "potentially highly
injurious".
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/03/19/nphone119.xm
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Top judges in key ruling on sharia marriage
Mark Townsend
The Observer, Sunday February 10 2008 Article history
Three senior judges are to rule on the legality of an arranged marriage
conducted in the UK under sharia law, a judgment that could have profound
consequences for British Muslims.
Last week, as Dr Rowan Williams, the Archbishop of Canterbury, declared it
was 'inevitable' that certain parts of Islamic law would be introduced into
Britain, the Court of Appeal was told how a 26-year-old British Muslim with
learning difficulties was married over the telephone to a woman in
Bangladesh. It was arranged by the man's father and deemed lawful under
sharia law.
Lord Justice Thorpe, Lord Justice Wall and Lady Justice Hallett were asked
by the man's family to reject an earlier decision that, because the groom
was unable to give his consent, the marriage was unlawful. Mr Justice Wood
said that the true test into the validity of the marriage was 'whether the
marriage is so offensive to the conscience of the English court that it
should refuse to recognise and give effect to the proper foreign law'.
The judge added that the long-standing British policy to recognise sharia
marriages conducted abroad should be offset by the understanding that 'there
are occasions when such a marriage cannot be recognised in England, for
example where to do so would be repugnant to public policy'.
The case was brought by Westminster city council community services
department after the local authority raised concerns about a marriage in
which the groom could not possibly have given consent because of his
learning disabilities.
The marriage took place in September 2006. Although the bridegroom stayed in
London and listened to the ceremony by speakerphone, the ceremony took place
in Bangladesh and was declared valid under sharia law.
Yogi Amin of the law firm Irwin Mitchell, who represents the rights of the
young disabled man through the Official Solicitor, said: 'This case
highlights that the law in this country may clash with sharia law and the
cultural wishes of the family.' He added: 'The High Court held that the
marriage in this case ... is not valid under English law, and that any
marriage entered into by this vulnerable adult whether inside or outside
England will not be recognised under English law.'
Legal experts said the case would have ramifications for plans to make
forced marriages - often arranged marriages involving youngsters -
prohibited in the UK under case law.
Yesterday the archbishop hit back amid calls for his resignation. A
statement on his website said he made no proposals for sharia and 'did not
call for its introduction as some kind of parallel jurisdiction to the civil
law'. Sources close to the archbishop said he had been surprised at what he
believes is the 'irrational' reaction to his speech.
Already two members of the General Synod, the church's parliament, have
called for Williams to resign amid criticism from leading bishops, secular
groups and government figures. Today, writing in the Sunday Telegraph, Lord
George Carey, Williams's predecessor, has accused him of 'overstating the
case for accommodating Islamic legal codes', adding that 'acceptance of some
Muslim laws would be disastrous for the nation'.
Head of the Catholic Church in England and Wales, Cardinal Cormac
Murphy-O'Connor, echoed these sentiments and added: 'I don't believe in a
multicultural society. When people come into this country they have to obey
the laws of the land.'
But Lord Carey also defended the archbishop as a great Anglican leader,
saying 'this is not a matter upon which Dr Williams should resign'.
This article was amended on Tuesday February 12 2008 to clarify Yogi
Amin's relation to the case.
http://www.guardian.co.uk/world/2008/feb/10/religion.law2
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estminster City Council v IC
Aso known as:
KC v City of Westminster Social and Community Services Departmen
City of Westminster Social and Community Services Department v C and another
[2008] EWCA Civ 198, [2008] All ER (D) 276 (Mar)
Court ofAppeal, Civil Division
Thorpe, Wall and Hallett LJJ
19 March 2008
Marriage Foreign marriage Validity Marriage in Bangladesh between
Brtish national and Bangladeshi national British national lacking
capacityin English law to marry Declaration Whether open to judge to
make declration that marriage invalid under Enlish law Whether judge
should have mad declaration that marriage not recognised by English law
Matrimonial Cuses Act 1973, s 12 Family Law Act 1986, ss 55-58.
C was born in theUnited Kingdom in 1981 to a family of Bangladeshi origin,
who were British ntionals domiciled and habitually resident in the UK. He
suffered from sevre impairment of intellectual functioning and autism.
There was expert evdence to the effect that in no area of his development
did he currently showthe skills that were to be expected of an average
three-year-old. Indeed i many areas he functioned substantially below that
mark. He needed very cosiderable support in all areas of his life and could
not be left alone ithout risk. He was highly suggestible and vulnerable. He
received home care five mornings a week before he attended a day centr.
Additionally, he received a high level of respite care. The local authoriy
had been involved in supporting and protecting him since he was four yearsof age. The local authority raised the issue of marriage with C's parents inthe autumn of 2006. There was no agreement that C could not and should notever marry. Accordingly, on 23 April 2007 the authority, considering that C
dd not have the mental capacity to marry, applied under the inherent
jurisdicion of the High Court for a declaration, inter alia, as to his
capacity to mary.The response of the parents' solicitor was to the effect
that C had ben married in a Muslim ceremony which had taken place by
telephone in September 2006. The telephone link had been between C in the UK
anda bride, K, chosen by his parents, who was in Bangladesh. It was agreed
betwen the parties that the marriage was celebrated in Bangladesh. In
December 2007, the judge made a declaration, iter alia, that the 'marriage'
of C and K in September 2006 was not alid under English law. He rejected
the submission made on behalf of the parets that circumstances such as
those which arose in the instant case had been expressly provided for in s
12(c) and (d) of the Matrimonial Causes Act 1973 (which was a consoidating
Act, the relevant statutory provisions having first emerged in the Nulity
of Marriages Act 1971), and that the marriage was, accordingly, voidable,
rather than void. Further, he rfused recognition of the marriage on the
ground of public policy. The paents appealed against the judge's
declaration that the marriage ws invalid under English law.
Sections 55 to 58 of the Family Law Act 1986, ealing with declarations of
status, were not drawn to the attention of te judge.
The appeal would be allowed in part.
(1) The judge had erred in rejecting the parents' submission based on s 12of the 1973 Act. The combined effect of s 12 of the 1973 Act and ss 55 t 58
of the 1986 Act was to ensure that the only route to a judicial concluson
that a marriage was void at its inception was a petition for nullity. An
aternative route, namely an application for a declaration, was plainly
proscried.
Roberts, Re, Roberts v Roberts [1978] 3 All ER 225 followed.
(2) Notevery marriage valid according to the law of some friendly foreign
state ws entitled to recognition in the UK.
In the instant case it was common gound that C lacked the capacity to marry
in English law. Even having regar to the relaxations that had permitted
marriage to be celebrated in a variety of places and by a variety of
celebrnts, it was simply inconceivable that C could be lawfully married in
the UK There was much expert evidence to suggest that the marriage which
his parets had arranged for him was potentially highly injurious. He had
not thecapacity to understand the introduction of K into his life and that
intrduction would be likely to destroy his equilibrium or destabilise his
emotioal state. Were his parents to permit or encourage sexual intercourse
beteen him and K, K would be guilty of the crime of rape under the
provisions of the Sexual Offences Act 2003. Physical intimacy that stopped
shortof penetrative sex would constitute the crime of indecent assault
under tha statute. C's parents, perhaps understandably, could not accept
the cout's statutory and inherent powers to protect C. Their engineering of
the telphonic marriage was potentially if not actually abusive of C. It was
the duty of the court to protect C from that potential abuse. The refusal of
recognition of the marriage was an essential foundation of that protection
The refusal of recognition in the instant case was justified even if no
precedented.
In place of the existing declaration a declaration would b made to the
effect that the marriage between C and K, valid according to th law of
Bangladesh, was not recognised as a valid marriage in the UK.
heni (otherwise Rodriguez) v Cheni [1962] 3 All ER 873 considered.
Alisn Ball QC and Andrew Bagchi for C.
Jan Luba QC and Stephen Knafler for C's arents.
Alex Vardan QC for the local authority.
Kate O'Hanlon Barrister
Judgment
[2008] EWCA Civ 198
COURT OF APPEAL, CIVIL DIVISION
19March 2008
LORD JUSTICE THORPE, LORD JUSTICE WALL and LADY JUSTICE HALLETTDBE
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORAL
CORRECTIONS)
LORD JUSTICE THORPE:
1. The family at the heart of thi appeal are British nationals domiciled
and habitually resident in this jurisdiction. However the family is of
Bangladeshi origin and only IC was brn in this country.
2. IC was born on the 11th October 1981 and is sadl handicapped. He suffers
from severe impairment of intellectual functionin and autism. Expert
evidence before the court is to the effect thatin no area of his
development does IC currently show the skills that are t be expected of an
average three year old. Indeed in many areas he functions ubstantially
below this mark. He needs very considerable support in all areasof his life
and cannot be left alone without risk. He is highly suggestible ad
vulnerable. He receives home care five mornings a week before he attends aday centre. Additionally he receives a high level of respite care. The local
authority has been involved in supporting and protecting him since he was
our years of age.
3. The role of marriage in the life of one so handicaped is inconceivable
in our society. Furthermore as a matter of law marriageis precluded. IC
lacks the fundamental capacity to marry. However the marrige is not
precluded in Bangladesh.
4. The City Council had raised the isse of marriage with IC's parents in
the autumn of 2006. There was clearlyno agreement that IC could not and
should not ever marry. Accordingly on he 23rd April 2007 the Local
Authority applied under the inherent jurisdictio of the High Court for:-
A declaration as to the capacity of I to marry. The local authority
does not consider that IC has the mental capcity to m
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Westminster City Council v IC
Also known as:
KC v City of Westminster Social and Community Services Department
Court of Appeal (Civil Division)
19 March 2008
Case Analysis
Where Reported
[2008] EWCA Civ 198
Case Digest
Subject: Family law
Keywords: Capacity; Consent; Islamic law; Marriage; Recognition; Validity;
Voidable marriages
Summary: Marriage; Validity; Party to marriage lacking capacity under
English law; Marriage celebrated in Bangladesh and valid under Islamic law;
Recognition of validity of marriage in English jurisdiction
Abstract: The appellants (K and N) appealed against a declaration ([2007]
EWHC 3096 (Fam)) that the marriage of their son (C) was not valid under
English law. K and N were British nationals of Bangladeshi origin who were
domiciled and habitually resident in England and Wales. C, who suffered from
autism and severe impairment of his intellectual functioning, lacked the
fundamental capacity to marry under English law. Marriage was not, however,
precluded in Bangladesh and C was married in a Muslim ceremony conducted
over the telephone, he being in England and his bride being in Bangladesh.
The parties accepted that, as a matter of law, the marriage had been
celebrated in Bangladesh. In declaring the marriage to be invalid under
English law, the judge applied the dual domicile rule, refused recognition
of the marriage on the grounds of public policy and rejected submissions
made by K and N that, pursuant to the Matrimonial Causes Act 1973 s.12(c)
the marriage was merely voidable rather than void and the court therefore
had no power to deny it recognition. The issue was whether he had been
right, on those bases, to make the declaration he did.
Appeal allowed in part. (1) The dual domicile rule was a rule of general
application and was not limited to those cases in which the marriage was
prohibited in the jurisdiction of the domicile of one of the parties, X City
Council v MB [2006] EWHC 168 (Fam), [2006] 2 F.L.R. 968 approved. Even
though there was authority to the effect that there were alternative bases
for the recognition of a foreign marriage falling foul of the dual domicile
rule, such exceptions to the rule did not assist N and K, and the judge had
been correct in his application of it, Vervaeke v Smith [1983] 1 A.C. 145 HL
distinguished. (2) Equally, the judge had been correct to introduce public
policy considerations. Not every marriage that was valid according to the
law of some friendly foreign state was entitled to recognition in England
and Wales, Cheni (otherwise Rodriguez) v Cheni [1965] P. 85 PDAD considered.
C lacked the capacity to marry in English law and it was inconceivable that
he could be lawfully married in England and Wales. There was expert evidence
to suggest that the marriage was potentially highly injurious to him and,
moreover, were his wife to engage in physical intimacy with him she would be
guilty of rape or sexual assault under English law. N and K's engineering of
the marriage was potentially, if not actually, abusive to C and it was the
duty of the court to protect him from such abuse. The refusal of recognition
of the marriage was an essential foundation of that protection and was
justified even if not precedented. (3) The judge had, however, been wrong to
reject submissions founded on s.12(c) of the 1973 Act. The reasoning in
Roberts (Deceased), Re [1978] 1 W.L.R. 653 CA (Civ Div) was clear and
binding; lack of consent made a marriage voidable rather than void, Roberts
followed. Moreover, the Family Law Act 1986 made it clear that no
declaration could be made by a court to the effect that a marriage was at
its inception void. The only route to a judicial conclusion that a marriage
was void at its inception was a petition for nullity. Had the judge had his
attention drawn to the provisions of the 1986 Act he would not have made the
declaration that he did. The appeal would therefore be allowed, but only to
the extent of varying the language of the declaration so that it declared
that C's marriage, valid according to the law of Bangladesh, was not
recognised as a valid marriage in the jurisdiction of the English courts.
(4) The parties' acceptance that the marriage had been celebrated in
Bangladesh meant that the issue of the place of celebration of the marriage
had been dealt with without the investigation it required. However, in cases
of marriages contracted by trans-national telephone calls, the ascertaining
of the place of celebration was likely to involve difficult problems of
great legal significance, and the court did not wish to endorse whatever
consensus had been reached between the parties in the instant case to the
effect that the marriage was celebrated in Bangladesh.
Judge: Thorpe, L.J.; Wall, L.J.; Hallett, L.J.
Counsel: For the appellants: J Luba QC, S Knafler. For the first respondent:
A Verdan QC. For the second respondent: A Ball QC, A Bagchi
Solicitor: For the appellants: Bennett Wilkins. For the first respondent:
Creighton & Partners. For the second respondent: Irwin Mitchell
Appellate History
Family Division
Westminster City Council v IC
[2007] EWHC 3096 (Fam)
Affirmed by
Court of Appeal (Civil Division)
Westminster City Council v IC
[2008] EWCA Civ 198
Significant Cases Cited
Cheni (otherwise Rodriguez) v Cheni
[1965] P. 85; [1963] 2 W.L.R. 17; [1962] 3 All E.R. 873; (PDAD)
Roberts (Deceased), Re
[1978] 1 W.L.R. 653; [1978] 3 All E.R. 225; (1978) 122 S.J. 264; (CA (Civ
Div))
Vervaeke v Smith
[1983] 1 A.C. 145; [1982] 2 W.L.R. 855; [1982] 2 All E.R. 144; (1982) 126
S.J. 293; (HL)
X City Council v MB
[2006] EWHC 168 (Fam); [2006] 2 F.L.R. 968; [2007] 3 F.C.R. 371; [2006] Fam.
Law 637; (Fam Div)
Legislation Cited
Family Law Act 1986 (c.55)
Matrimonial Causes Act 1973 (c.18) s.12(c)
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