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Extra-Judicial Muslim Divorces and Family Mediation in the Nordic Countries: What Role is there for the Welfare State?
- from PART V - EXTRA-JUDICIAL DIVORCES AND ADR IN FAMILY MATTERS
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- By Sanna Mustasaari, Postdoctoral researcher in family Law at the Faculty of Law, University of Helsinki.
- Edited by Katharina Boele-Woelki, Dieter Martiny
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- Book:
- Plurality and Diversity of Family Relations in Europe
- Published by:
- Intersentia
- Published online:
- 09 November 2019
- Print publication:
- 29 August 2019, pp 285-312
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Summary
INTRODUCTION
This chapter focuses on legal problems relating to extra-judicial Muslim divorces (and marriages as these are inter-related) in the Finnish and Nordic context, an issue on which only scarce literature exists in this particular context. It studies these divorces against the backdrop of growing anxiety in recent years about Islamic family law in Europe and repeated calls in the public space for ‘one law for all’. There is a significant and growing body of research showing that the relationship between law, state governance and religion is multifaceted and requires a careful and empirically grounded analysis, but for some reason this knowledge often fails to be taken into account in public debates around these issues.
Only recently, in January 2019, did the Parliamentary Assembly of the Council of Europe adopt Resolution 2253 (2019) on Sharia, the Cairo Declaration and the European Convention on Human Rights. In the Resolution, the Assembly underlines ‘its support for the principle of the separation of State and religion, as one of the pillars of a democratic society’ and states its concern over the fact that ‘Sharia law – including provisions which are in clear contradiction with the Convention – is applied, either officially or unofficially, in several Council of Europe member States, or parts thereof ’. According to the Assembly, ‘Sharia law rules on, for example, divorce and inheritance proceedings are clearly incompatible’ with several provisions of the European Convention on Human Rights and its additional protocols.
Research in the field of Muslim families and legal pluralism points out that the so-called separation thesis is a much too simplistic model to understand the dynamics of religious and secular governance. In general, secular rule and governance is about a variety of ways in which religion and religious practices are defined and regulated, and how legality and authority emerge as socially constituted and connected to several intertwined systems of meaning-making rather than merely separate institutions of ‘state law’ or ‘religious law’. This highlights the interactive side of these power relationships. As Bredal notes, engaging with debates about the secular governance of Muslim marriage and divorce requires not only looking at how state authorities govern religion, but also at how different actors, such as mosques and individuals themselves, have responded to this governance.
State Curriculum and Parents' Convictions under the European Convention on Human Rights
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- By Sanna Mustasaari, Doctoral candidate, Faculty of Law, University of Helsinki, Finland, Sanna Koulu, LL.D., Lecturer in Child and Family Law, University of Rovaniemi, Finland
- Edited by Maarit Jänterä-Jareborg
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- Book:
- The Child's Interests in Conflict
- Published by:
- Intersentia
- Published online:
- 12 December 2017
- Print publication:
- 04 January 2016, pp 55-72
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Summary
TRAVELLING WITH CHILDREN IN STRASBOURG
Anyone who has travelled with children - or observed these journeys as a fellow passenger - is familiar with the challenges and frustration that travelling with children may involve. Parents do, nevertheless, take their children to places far from home, and most of the time they do so willingly, as experiences and memories springing from such trips enrich the lives of children and adults alike. Using this as metaphor, we wish to begin our contribution by noting that for a lawyer too, “travelling with children”, that is, going beyond national law with regard to children's legal rights, is both exhausting and rewarding. As the legal regulation concerning children is increasingly fragmented and internationalised, the applicable norms and principles are oft en found in transnational contexts, for instance in the case law of the European Court of Human Rights. While drawing interpretative guidelines from the case law of the Strasbourg Court may sometimes be challenging, there is no denying that the Court plays a crucial role in taking the rights of the children seriously and developing child-centred approaches to legal argumentation.
In this chapter we will discuss one specific issue with regard to the Court's case law and the rights of the child, namely the possibility for the child to be exempted from certain lessons or school activities on grounds of freedom of religion. The issue can arise for example in conjunction with music lessons, dancing as a part of physical education, or sex education. While the content of the lessons for which exemption is sought can vary, the common feature is the conflict between state-mandated curricula and the convictions of the parents. The position of the child is less clear, and it is not clear how the best interests of the child could best be safeguarded in these cases.
The European Convention on Human Rights, like many other human rights conventions, stresses the role of the parents in bringing up children. The case law of the Court, however, supports the importance of state curricula. We argue that whichever side is emphasised, that of the parents or that of general society, more attention should be paid to the concrete circumstances of the child and the family as well as to the probable consequences for the child of allowing or denying the exemption.