Multicultural ADR in Family Law

Multicultural ADR in family law

„It always seems impossible until it’s done.“  Nelson Mandela

The previous blog post dedicated to ADR in Child welfare introduced methods such as family conferencing and child protection mediation, which are widely used in family law cases. Nowadays, there are many possibilities to travel, study or work abroad, which leads to a mix of cultures. As a result, people from different countries get married together. Multiculturalism in family law, where children are involved, represents one of the main challenges for dispute settlements. What are the specific issues catalysing the dispute itself? Is it possible to find a middle way between two cultures or religions? Today, the focus will be on multicultural ADR in family law.

Religious diversity is adding up to already sensitive issues covered under family law. In multicultural relationships, where each partner follows their own religion or cultural traditions, problems arise in relation to the upbringing of children born into the family. Both parents have equal rights to decide about the wellbeing of their child, including education, healthcare and religion.   

One of the most characteristic examples is that of a couple who got married and lived in the United States, while the father was of African origin and the mother was American born. The father wanted to subject his one-year-old daughter to female circumcision based on religious freedom and the right to practice his religion, including circumcision mandated by his religion. The mother was of a different faith and did not agree with the circumcision of her daughter. She stated that such practice is against her culture and law and expressed her fear and clear opposition when her husband mentioned that all necessary steps were arranged for the operation. The father claimed that female circumcision is legal in his country of origin and refused to accept the illegality of such practice in the US, insisting on proceeding with the operation. Unfortunately, this case was not solved through mediation and led to divorce and lengthy court proceedings. The final outcome favoured the mother, and the father was placed under supervised visitation with his child.[1]

Another example, however, brings a different perspective to issues related to both religion and family law. A ten years-old girl born to a Jewish family who was living with her parents and her brother in the UK, wished to be baptised. Her parents got divorced and agreed on a shared parenting agreement for their children. After their dissolved marriage, the father decided to convert to Christianity and the mother agreed that children can attend church with their father. Few events took place and the girl confessed to her mother, and later to her father as well, about her wish to be baptised, which her mother did not accept. The mother then filed an order before court to prohibit the father from baptizing, confirming, or dedicating either child into Christianity. Reports consisting of an interview between a Cafcass (organization representing children in family Court) worker, and the girl stated that she is a bright, engaging child who is able to offer her own views and opinions. The decision of the Court included that parents must provide a child access to Sunday masses, while before the child turns 16 both parents are prohibited from arranging any confirmation within the church without mutual consent. In addition to this point, parents have to attend a special program organized by Cafcass.[2]

Furthermore, balancing the rights of minorities requires time and respect to other cultures. An attempt to achieve this equilibrium is the application of Islamic family law in Greece, which is partly possible for Greek Muslims in Thrace through an Islamic jurist, Mufti. There are conflicts between Sharia family law and Greek law, following international legal order related to equality of partners and concern for the best interest of the child. Unequal treatment of the sexes is demonstrated by the Islamic law on polygamy and divorce. Rights of the Child declared in the UN Convention on the Rights of the Child are not secured by Islamic law, which pertains to marriage of minors and decides the way of post-divorce child custody. In this case, the age of the child is important when deciding whether the child stays with the mother (until 9 years) or with the father (older than 9 years). Yet, there are exceptions to the rules. ADR is then used in cases dealing with two different legal systems and cultural backgrounds, which gives an opportunity to both parties to access legal representation equally, as during the court proceedings one party could be discriminated against. Thus, mediation helps to evaluate the position of both parties.[3]

Evidently, there are initiatives to provide an understanding of cultural backgrounds in order to effectively solve the dispute. It is important to say that presented cases could have a different outcome, if they were to take place in another country. Court proceedings follow national and international legislation, where they disregard religious practices and law in order to secure fundamental rights to all citizens, especially children. However, states do provide support for ADR units related to a specific religion or culture, where families can solve issues out of court. Nevertheless, cultural practices are private, sensitive and might not be discussed until after marriage or other life events such as the birth of a child. Hereafter, multicultural issues regarding family law deserve more attention from international family law mediators.[4]

By: Veronika Válová

[1], Cultural influences in Family Conflict: Family Mediation on a Multicultural Context, Maureen Dabbagh, (August 2013), available at <http://www.adrhub.com/profiles/blogs/cultural-influences-in-family-conflict-family-mediation-on-a> accessed on 05.04.2021

[2] C (A Child), Re [2012] EW Misc 15, (2012), available at <https://www.casemine.com/judgement/uk/5b2897ff2c94e06b9e19ecc3> accessed on 05.04.2021

[3] Tsaoussi, Aspasia and Zervogianni, Eleni, Multiculturalism and Family Law: The Case of Greek Muslims (May 25, 2011). EUROPEAN CHALLENGES IN CONTEMPORARY FAMILY LAW, pp. 215-229, Katharina Boele-Woelki and Tone Sverdrup, eds., Intersentia, 2008, Islamic Law and Law of the Muslim World No. 08-17, Available at SSRN: https://ssrn.com/abstract=1114366

[4] Cultural Diversity in Mediation and Conflict Resolution, Farhana Chowdhury (January 2014), available at <https://www.mediate.com/articles/ChowdhuryF1.cfm> accessed on 05.04.2021