Law lords leap to defence of mother in landmark ruling

A House of Lords ruling has, for the first time in domestic or European jurisprudence, allowed an appeal against the removal of a foreign national on grounds of a breach in the receiving country of a right other than Arts 3 and 6 of the European Covention on Human Rights.

In EM (Lebanon) v Secretary of State for the Home Department, the appellant had fled her country after it was ruled that she would have no legal right to custody of her son after the age of seven, after her divorce.

Alison Pickup, a barrister specialising in immigration law at Doughty Street Chambers, says that the House of Lords was keen to shy away from EM’s argument that the discriminatory approach of Lebanese law towards child custody issues contravened Art 14, read with Art 8, of the Convention. “The house held that it could not impose the principle of equality between men and women on a legal system based on Sharia law which was ‘respected and observed throughout much of the world’,” she says.

Pickup continues: “Their lordships considered that there were compelling humanitarian grounds for allowing EM’s appeal since, in the particular circumstances of her case, there was a real risk that her family life with AF [her son] would be completely destroyed on return to Lebanon.”

Pickup says that while the law lords’ reluctance to impose European standards of equality on other jurisdictions is consistent with their earlier approach, it does raise questions over their dealings with Sharia law. “One can’t help wondering if their approach would have been the same if the foreign law discriminated against, for example, Jewish parents or communist parents.”