Court Decision Grants Long-Awaited Custody of Twins to Christian Mother: The decision is a welcome step forward but also a missed opportunity
The decision by the Court of Cassation to grant custody to Kamilia Lotfy of her sons Mario and Andrew Ramsis after their father converted to Islam is a welcome end to her five-year legal battle, the Egyptian Initiative for Personal Rights (EIPR) said today.
However, while the ruling is a positive step forward, it fell short of striking down the discriminatory policy of forcibly changing the religious affiliation of Christian children in official documents when their father converts to Islam. The EIPR urged the government to address this serious issue in amendments to the Personal Status Law that are scheduled to be brought before Parliament later this year.
“Kamilia Lotfy won her battle to retain custody of her children thanks to her courage and perseverance against all odds," said Hossam Bahgat, director of the Egyptian Initiative for Personal Rights. "It is regrettable, however, that the highest court of the country chose to treat the symptoms and ignore the root causes of the problem– changing the religious affiliation of Christian children whose parents convert to Islam without the slightest regard for their will or that of their Christian mothers.”
On 15 June 2009 the Court of Cassation – Egypt's court of last resort in civil and criminal matters – granted an appeal filed by the Public Prosecutor and overturned a September 2008 ruling by the Alexandria Appeals Court which had stripped Lotfy of custody of her 14-year-old twin boys in favor of their father following his conversion to Islam. The Court of Cassation also affirmed, for the first time, the right of a non-Muslim mother to retain custody of her child until the age of fifteen, as stipulated by Egypt’s Personal Status Law, even when the child’s father converts to Islam and the state automatically changes the child's religion as a result.
Prior to this ruling, the Court's established position had been that a child must be transferred to the custody of his Muslim father upon reaching the age of seven, which is considered the age of "religious maturity" by the Hanafi school of Islamic jurisprudence.1 In the Lotfy case, however, the Court accepted the Public Prosecutor's argument that family courts may not rely solely on the mother's Christian faith to deprive her of custody over her children following her ex-husband's conversion to Islam. Only where there existed “fears for the child's faith” stemming from the mother's upbringing, the Court added, should children be removed from their mother's custody before the age of fifteen. The EIPR warned, however, that this exception could allow ex-spouses and family courts to bypass the Court of Cassation ruling and remove children from the custody of their Christian mother without regard for the children's best interests.
Significantly, the Court of Cassation did not accept the Public Prosecutor's argument that Christian-born children above the age of seven whose fathers convert to Islam should enjoy the freedom to choose which religion they wish to follow, “so that they can exercise the role laid down for them in Shari'a [by choosing] between retaining the Christian faith in which they have been raised, or voluntarily accepting to convert to Islam.” The Court instead upheld its precedent in previous cases in which it ruled that when a parent becomes Muslim, the religion of his or her children is automatically changed to Islam until they reach the age of puberty (fifteen) because Islam is “the best among all religions”.
“The Court of Cassation had an unprecedented opportunity to reconcile Islamic law with the state's legal obligation to respect the rights of all its citizens and prevent discrimination against them,” said Bahgat. “Unfortunately, the Court chose to uphold a restrictive and conservative interpretation which legitimizes discrimination in the name of Islam.”
The EIPR reaffirmed that the government is under an obligation to intervene immediately and overturn this discriminatory practice, particularly given the Ministry of Justice's recent announcement of its intention to submit amendments to the Personal Status Law to Parliament. These amendments – whose content has not been revealed yet – must include a provision guaranteeing children's right to protection from religious discrimination in accordance with both the 2008 amendments to the Child Law and the state's obligation under international human rights treaties.
In November 2008 Kamilia Lotfy and EIPR lawyers submitted a request to the Public Prosecutor asking him to exercise his exceptional authority to appeal the decision of the Alexandria Appellate Court that had stripped Lotfy of custody of her sons. The request was granted and the Court of Cassation's Personal Status Chamber began examination of the appeal in February 2009.
In 2007 the EIPR issued a joint report with Human Rights Watch entitled 'Prohibited Identities: State Interference with Religious Freedom', which contained a chapter devoted to the issue of such involuntary “conversions”. The chapter describes the cases of 89 Egyptians whose religious affiliation in official documents was changed by the state to Islam against their will – and in some instances without their knowledge – after their fathers converted to Islam. Moreover, the Interior Ministry has refused to change their religious affiliation to Christianity when they reached the age of fifteen, in violation of the law and the abovementioned principles established by the Court of Cassation.
1- Family courts are mandated by law to apply the majority opinion of the Hanafi school when adjudicating matters not codified in the Personal Status Law.