Where a child has been abducted from a country which has not signed the Convention on abduction of children, an English court should be very reluctant to apply English cultural traditions in substitution for those of the home country. Exceptions exist only for persecution, or ethnic, sex or other discrimination. ‘The welfare principle as paramount has been the cornerstone of the family justice system in this jurisdiction for many years. We regard it as a touchstone in measuring the quality of other family justice systems. Article 3 of the United Nations Convention on the Rights of the Child 1989 requires no less. But what constitutes the welfare of the child must be subject to the cultural background and expectations of the jurisdiction striving to achieve it. It does not seem to me possible to regard it as an absolute standard.’
The court drew attention to: ‘the importance of according to each State liberty to determine the family justice system and principles that it deems appropriate to protect the child and to serve his best interests. There is an obvious threat to comity if a State whose system derives from Judaeo-Christian foundations condemns a system derived from an Islamic foundation when that system is conceived by its originators and operators to promote and protect the interests of children within that society and according to its traditions and values.’
Judges:
Thorpe LJ, Pill LJ
Citations:
Times 07-Jul-1999, Gazette 28-Jul-1999, [1999] 2 FLR 642
Statutes:
Convention on the Civil Aspects of International Child Abduction 1980
Jurisdiction:
England and Wales
Cited by:
Cited – Singh v Entry Clearance Officer New Delhi CA 30-Jul-2004
The applicant, an 8 year old boy, became part of his Indian family who lived in England, through an adoption recognised in Indian Law, but not in English Law. Though the adoption was genuine, his family ties had not been broken in India. The family . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 10 May 2022; Ref: scu.81860