15 - 21 November 2001
Issue No.560
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Al-Ahram Weekly Online 15 - 21 November 2001 Issue No.560 |
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Suffer the children
Child custody disputes are fraught with difficulty. They get worse when the parents are from different countries. Reem Leila investigates
Ibrahim Moussa got 15 years. Remember Moussa? An Egyptian tour guide, Moussa married a German woman. Together, the couple had three children. But the marriage didn't work, and Moussa's wife left Egypt, taking the children with her. A distraught Moussa eventually discovered that his children were in Germany. He tried to join them, but the German embassy refused to grant him a visa. In desperation, Moussa kidnapped four German tourists in Luxor and tried to barter their release in exchange for his children. He was caught, the hostages released and Moussa is currently serving his prison sentence. He still hasn't seen his children.
Then there's Mustafa Elwan, who was married to an Italian woman for more than 16 years. The two lived in Paris with their three children, Ahmed (15), Ithar (11), and Shaimaa (4). When Elwan decided to return to Egypt, his wife refused, so Elwan took the children and left. His wife's family successfully abducted them. Elwan is still trying to get them back.
The number of bi-national couples is rising: a product of a shrinking world and burgeoning tourism. Marriage is already tough: it becomes a veritable minefield when cross-cultural issues are added. And when those marriages fail, and children are involved, the pain and difficulty can become intractable. Often the only recourse a parent feels able to take is abduction, whatever the hurt that may follow.
According to the latest figures published by the Ministry of Justice, 35,000 Egyptians are married to foreigners. Nearly 75 per cent of those partnerships are cross-cultural marriages involving Egyptian men married to foreign women.
Egypt is party to none of the international or bilateral treaties that treat the difficulty of bi-national child custody. Egypt is not, for example, subject to the Hague Convention on the Civil Aspects of International Child Abduction -- the most comprehensive international treaty dealing with the issue.
The Hague Convention, which came into effect in 1980, is not an extradition treaty; nor does it adjudicate in custody disputes. But the convention is designed to preserve the status quo by returning children to the country where they usually reside, allowing the judicial authorities of that country to adjudicate in the custody dispute. The convention also ensures that rights of custody and access imposed by the law of one contracting state are upheld by other contracting states.
Egypt was one of the countries not to join the convention. According to Salah Amer, a lawyer specialising in international law, the convention is compelling in theory, but problematic in practice for Egypt. For example, several articles are considered to contradict Islamic Shari'a, which governs family relations in Egypt. The Hague Convention also requires the courts of one nation to accept that the courts of another nation will resolve custody disputes wisely. "That confidence is sorely tested in a case where a court that should be sending a child home, is convinced that its judgment and not that of a court in another nation will best serve the interests of the child. The notion of comity demanded by international treaty obligations requires court adjudicating under the convention to concede that the courts of other nations, even when they might reach a different decision from that of the adjudicating court, are endowed with an equal measure of wisdom and sympathy," says Amer.
Egypt has taken some measures, though. Last year, the Ministry of Justice created a specialised committee to treat problems of this kind. But Adel Fahmi, deputy assistant to the Minister of Justice for affairs of international cooperation, told Al-Ahram Weekly that the committee could neither interfere in nor influence the judicial decision of courts. "The committee's role is limited to 'friendly means' in solving custody problems. What is more important is that both parties, father and mother, agree on the process the committee takes to solve their problem. If one of the parties does not, which happens all the time, the committee has no mandate to address the issue," explained Fahmi.
In Egypt, then, child custody disputes are dealt with by Egyptian law. Mohsen El-Atawi, counsellor at the Ministry of Justice, explained that children born to an Egyptian father and a foreign mother are automatically given Egyptian citizenship, and are, therefore, subject to Egyptian law. Under that law, mothers who travel with children, without the father's consent, are committing a crime.
A foreign parent can, however, request that a foreign custody order be recognised in Egypt. But Egypt's authorities will enforce the order only if they feel it does not contradict Shari'a and other parental rights under Egyptian law. "Therefore, foreign custody orders are not automatically recognised in Egypt," observed El-Atawi. "The foreign mother must seek legal representation in Egypt and file for custody, or visitation rights, in Egypt," he added.
For an Egyptian father, whose children have been abducted, the problems are different. When the Egyptian father has obtained a court order giving him visitation rights or granting him custody, the father has to ratify the court order with both the ministries of justice and foreign affairs. He must also have the order ratified by the embassy of his wife's country. After all these procedures are complete, the father must present the Egyptian court sentence to the foreign courts, but it is "neither respected nor approved in many cases," said Amer.
When the Egyptian court order is not approved, the husband has to resort to legal representation in the foreign country. "The husband has to obey and respect the law of the foreign country," explains Fahmi.
In most cases the problem is not solved: at best, huge effort needs to be exerted over long periods before progress is made. According to Amer, the government should tackle this by negotiating bilateral arrangements or signing up to international conventions on personal status issues. "At the moment there is a severe struggle over which law should apply when such problems arise. This in itself will hinder the achievement of a better solution for many years to come," Amer added. And in the meantime, plenty of parents, not to mention children, will continue to suffer.
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