Contact and Illegitimacy in the Muslim Community

AYESHA HASAN Barrister

We are all very familiar with the presumption of contact in favour of the absent parent, usually the father. It is not difficult to advise mothers in contact disputes that unless there is a substantial risk to the welfare of the child - be it physical abuse, emotional abuse or sexual abuse - or risk to a mother's psychological well-being, there will be, more often than not, an order for contact between the child and the father. This presumption holds good whether the child is legitimate or illegitimate. The stigma that once accompanied an illegitimate child is all but gone and societies, communities and the courts do not distinguish in contact cases between children on this basis.

What do you do, however, when you have a mother denying or refusing to agree to any form of contact on the basis of the child's illegitimate status and the fact that she lives within the Muslim community? Should that make a difference or not? Should the values and beliefs of the community affect the way a court approaches the issue of contact? Should the ‘background', as referred to in Children Act 1989, s l(3)(d), have a particularly overwhelming significance?

Muslim communities in the UK

In the Muslim community the issue of contact in the context of an illegitimate child rarely needs to be addressed. The simple reason being that there are very few cases where a child is born in such circumstances; that is to say, where both parties are Muslims from the subcontinent and live within their communities to a large extent - such as in Bradford and Southall. The Muslims living in such places have a tendency to reproduce their culture, albeit living in the UK.

The attractions of living in these societies are great - families live their lives as if they were back home and their values, culture, religion and language are all inculcated into the minds of their children. The children bear the burden of having to live up to their parents' sets of beliefs. The parents are happy to allow their children to go to schools and mix with other children, but at home they expect and demand an adherence to a complete, distinct and different set of values. The problems are obvious, notably the children end up feeling divided and disloyal if they like or try to adopt any values that are not approved of by their parents, elders and the society.

Notwithstanding the values that these children are being taught and having to live within this culture, there will be occasions when there will be clashes and conflicts. In some respects these clashes have started to arise and will need to be resolved by our courts. A scenario where a Muslim girl has a clandestine relationship with another Muslim boy is not unusual. However, should the girl end up becoming pregnant, this would be considered by both sets of parents living within these communities to be the ultimate nightmare; but more so for the girl's parents. This is because of the culture which provides for double standards, the religious connotations and impact that this pregnancy has, not just on the girl, but on the parents and their wider families generally - not forgetting the unborn child. In Islam sexual relations before and outside of marriage are prohibited and the concept of illegitimacy is one severely frowned upon. Attached to the child conceived in these circumstances will be the 'stigma of illegitimacy' which would bring, more likely than not, shunning by the society, ostracisation by the people and dishonour to the mother and her family that may not have been seen in the UK since Victorian days.

Families who face these problems have few choices if they wish to 'keep face' in their respective communities. Some go as far as advising and forcing the girl to have an abortion. Others may send their girls 'back home' to get married, in order to give the child, mother and family a cloak of respectability. This is so even where the girls were born and brought up in the UK and have never really lived in the subcontinent. Others force the girls to marry the father of the child - irrespective of the mother's wishes and indeed her possible fears if there has been violence in the relationship or ill-treatment at the hands of the potential in-laws.

I have been unable to find any decision dealing with contact between an unmarried Muslim father and a Muslim mother in private law proceedings. I would be grateful if anybody who does know of one could let me know. It may be the case that due to the problems I have described above, these matters rarely arise and when they do the courts are the last place to air them or resolve them. In any event these issues are bound to arise and our courts will need to deal with them in the context of the Children Act 1989 vis-a-vis the welfare principle. (A case that readers may find useful and interesting for appreciating background, cultural and religious impact is the House of Lords' decision in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal and Another ex parte Shah [1999] 2 WLR1015.)

What is a court to do where a mother denies contact to an unmarried father in the following circumstances? The parties separated before the child was born; the child is living within the mother's family. There is some uncertainty about the true paternity of the child. The community, whilst speculating, are willing to give the mother the benefit of the doubt that the child is not illegitimate. The child's welfare in every respect is being taken care of and the child is thriving. The father has never seen the child and any order by the court allowing contact to the father would, in fact, have the effect of declaring this child as an illegitimate child; thus giving the lie to the mother's well-built up 'cloak of respectability', which she states is essential for the well-being of not only the child but also herself and her family whilst living in this community.

There is no doubt that every child has a right to know his father and safeguards are available if there is a risk that needs to be protected. On the other side of the coin the father's arguments could be summarised as follows. Suspicion prevails in the community and the mother's fear of illegitimacy is unfounded in as much as she expects the community to shun either her or the child. The impact of the knowledge of the child's illegitimacy upon the community could be weathered by not only the child but by the mother in the fullness of time. Can this 'stigma of illegitimacy' provide a cogent reason for the denial of contact in these circumstances?

I am of the view that there will be other cases where the knowledge of illegitimacy, if confirmed by an order of the court, will be detrimental to a child in as much as, once confirmed, then the community will shun the child and the family. Such are or may be the views of the people of the society that dishonour would be heaped not only on the mother and her family but also the child would be subjected to taunts and abuse about his birth. The re-creation of an environment such as the one they have left behind, where the values and culture govern the way of life by the people of these communities is very real. A court will need to have before it expert evidence as to the impact of any order it is minded to make in a community such as the one I have described. In my view there will almost always be unanimity between experts as to the likely impact of illegitimacy if known in these communities, as the views of the experts are inextricably linked with the religious views on the issue of illegitimacy. There is a need to understand and respect these various cultural and religious differences when dealing with cases of contact within these communities, and the particular reasons that may amount to a 'cogent reason' in such situations will need to be accepted.

Recently I appeared in a case where I was acting on behalf of a mother in a case where she was opposing the father's application for contact and parental responsibility. The mother's primary ground for refusing contact and parental responsibility was that as the child was born illegitimately and that as she lived in a Muslim community any order would confirm the child's status as illegitimate, which would have a severe impact on the child's welfare. There were allegations of violence against the father. The father's case was that the child should reside with him as any stigma of illegitimacy that may attach to the child would be substantially reduced, failing that the child should have contact with him and that he should have a parental responsibility order.

Cazalet J heard evidence on the issue of illegitimacy and the impact on the community. He held that it would not be right to make a residence order in favour of the father. He also held that there should be no direct or indirect contact order, but some indirect contact should be arranged with the help of the court welfare officer. He accepted the mother's argument that there were dangers of there being an order made now. For if an order were made that of itself could lead on to all the undesirable consequences relating to the stigma. I have withheld the name of the case in order to preserve anonymity as ordered by the judge.