The conflict of laws is a set of rules of procedural law that can be used in determining the legal systems and the law of jurisdiction applicable when addressing some legal disputes(Collier, 2013). Therefore, the conflict of law in children are procedural laws in legal systems that can be used in solving disputes revolving around the children. In my definition, a child is a person below eighteen years and above this age, he/she could have grown to adulthood to separate the good and the bad.
This research paper will cover the conflict of laws and children. It uses the conflict of laws by David Mcclean and Veronica Ruzabou-nigm in creating an exam scenario under which matters concerned with children are discussed. The book covers conflict of laws and children in chapter 10(Ruzabou-nigm, 2012). The paper also presents cases upon which judgments have been made that involve Islamic law and English law in England and Wales concerning conflict of laws and children. This paper can be essential to students opting to practice law by presenting them with some sections, Acts and articles that apply to law legal systems.
For any student taking the law, the conflict of laws by David Mcclean and Veronica Ruzabou-nigm could serve as an essential material for knowledge acquisition concerning all branches of private international law. The chapter ten of the book covers children: guardianship and care(Ruzabou-nigm, 2012). In a case study presented in the conflict of laws by David Mccleanand Veronica concerning Re E (children) (international abduction), under what conditions can a state avoid returning a child to her/his habitual residence (country)? Under what conditions can a state grant a child in an alien country be returned to his/her mother country?
In The Hague Convention on Civil Aspects of Child Abduction1980, Article 13 serves to provide essential exceptions of which the state can avoid ordering returning a child to her/his habitual residence. The requested state in not bound returning the child to his/her native country under conditions that an individual, organization or any other agency opposing its return establishes that; his/her return may make expose the child to a barbaric condition. Moreover, it should be evident that returning the child may drive him/her to experience physiological, physical and moraldamage. Under these conditions, the state can deny the child not be returned to his/her native country(Harding, 2013).
In The Hague Convention on Civil Aspects of Child Abduction1980, Article 12, the state can grant a child in an alien country be returned to his/her mother country in case the requested state establishes that the child has been wrongfully removed in a breach of rights of custody. Under such situations, the father or the mother can apply to the central authority of the state to order the return of his/her child(Roosevelt, 2016).
Islam is deemed as the largest non- Christian faith in Wales. According to the 2011 Census, the Islamic population amounted to 46,000 adherents, the number that is significantly high in comparison to other religions. Presently, there are approximately 40 mosques in Wales(Roosevelt, 2016). However, matters associating with children in Wales appear to be different from other countries in the neighborhood of Wales especially in terms of the law.
The earliest case involving a conflict of laws and children involved a marriage between Alhaji and a 13-year-old girl. Alhaji hailed from Nigeria and upheld Islamic requirements of marriage during this ceremony. According to Islamic law, this marriage was valid in spite of the bride being only 13 years old. Later, the newly married couple come to Wales although the move didn’t attract any significant reactions. However, there entry and cohabiting in England was the center of focus that attracted several reactions from the England government(Scalia, 2012).
The matter was brought to the England magistrates, with the complaint based on the children care Act that was in practice during that time. This is line with section 62 of Juvenile and Minor Act 1933. The provision allowed England to hold strongly that the bride was a child who needed care, protection, and control. The court of England also declared that the bride was vulnerable to psychological dangers in accordance with Juvenile and Minor Act 1963 under the second section.
Wales come up and presented evidence to the England magistrate concerning the cultural values and rituals involved in Islamic marriages. Under the presence of magistrates, the provided information was not challenged. As presented by Wales, the marriage occurs when there is an agreement among the parents, guardians, the bride and the bridegroom. In this case, the bridegroom is required to pay the dowry although it is not mandatory. The matrimonial contract is then signed and this can be followed by ceremonies and various feasts.
Since all this happened in that marriage, Wales held that the girl was lawfully handed to the bridegroom (Collier, 2013). In accordance with Islamic law, a girl is immature below the age of 9 years and becomes mature once she attains 15 years. As much as Islamic law supported the marriage by the fact that the bride was only two years off maturity/puberty, the England magistrates emphasized that it was unlawful for the bride and the bridegroom to continue living together not unless the bride attained pubertal stage.
According to the English law, the 13-year-old bride was vulnerable to dangers that could affect her morals and continuing staying with the man was against what reasonable men or women could do. England later made “fit person order” that drove them to lay their verdict that the girl be presented to the local authority for care since she was young for marriage(Harding, 2013).
In summary, this case was centered around the marriage of Alhaji Mohammed and 13 years old girl. The marriage was valid according to Islamic law although, before the English law, it was illegal. Wales come up with evidence to support the marriage although England declared the marriage illegal under the fit person order. England felt this was a violation of children rights and, therefore, presented the bride to the local authority for care and protection.
This case stands out to indicate the conflict of laws that exist between Islamic and English laws. Conflict of laws is defined as a group of rules of procedural law that can be used in determining the legal systems and the law of jurisdiction applicable when addressing some legal disputes. This case study can serve to present an ideal procedural law essential when ruling matters involving relationships between adults and individuals who by common law are considered not to have attained a minimum pubertal age.
Another case is a case involving the forceful return of Welsh children from England. The case involved a Welsh mother appealing to the verdict of England judges that required her to return her two children to Wales. The children; a girl (7 years of age) and a boy (3 years old) had been brought to England just a few weeks before the return motion evolved. They were required to be taken back to their father who was in Wales. The mother’s counsel argued that England Court needed not to make returns to jurisdictions that never resembled child protection provisions that were applicable in legal systems of England(Roosevelt, 2016).
According to part 6 of the Welsh Act that is directly connected with the children Act 1989, it is presented that in disputes regarding a physical care a child is entitled to, the court shall draw judgements in accordance to the welfare of the child as stated in the law. The mother’s counsel argued that due to their legislation, the children’s welfare was qualified in accordance with the Islamic law. The law could have significantly barred the mother from being involved in the upbringing of the children with respect to this specific dispute, and the mother had embraced additional matrimonial affairs. Therefore, there was no grounds for the courts to order the children be returned to Wales in the name of protecting their interests. However, this argument encountered a blow after being rejected by the Court of Appeal(Harding, 2013).
The court held that these were Welsh Islamic children, and their home was in Wales. It was presented that English and Islamic laws were different since in Wales, the court would have provided the children’s welfare although from the Islamic perspective. The England court, however, found this idea neither surprising nor objectionable. It was supported that it was fair for the judge to consider that for the Islamic children whose habitual residence, in this case, was Wales, the procedural laws of Welsh were utilized by English standards. The final ruling was that children be returned to Wales on account that it was their country, and they had been wrongfully removed in breach of rights of custody(Harding, 2013).
In summary, this case covered the forceful return of Welsh children from England. The case involved a Welsh mother appealing to the verdict of England judges that required her to return her two children to Wales. The children; a girl (7 years of age) and a boy (3 years old) had been brought to England and were required to be taken back to their father who was in Wales. The mother’s counsel argued that England Court needed not to make returns to jurisdictions that never resembled child protection provisions that were applicable in legal systems of England. Ultimately the children were returned to Wales on account that Wales was their country, and they had been wrongfully removed in breach of rights of custody.
Over the years, matters touching children have proved to be problematic in dealing with them as the debate boils down to what exactly needs to be done to protect the children’s rights. Overly, this case plays a significant role in the conflict of laws as it provides a framework that can be drawn when making judgements concerning alien children in different countries.
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