K.S. v. T.S. [2012] ScotSC 100 (01 November 2012)

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNFERMLINE

F307/10

Judgement of Sheriff Ian D Dunbar

in causa

"KS",

Pursuer

against

"TS",

Defender

DUNFERMLINE, 1 November 2012. The Sheriff having resumed consideration of the cause finds the following facts to be admitted or proved.

[1] The parties met in or around 1994 when the pursuer was on holiday in the Red Sea resort in Egypt where the defender was working at the time. They had a short relationship during that holiday described as a holiday romance. The pursuer returned to Scotland. The parties exchanged letters and telephone calls for a short while thereafter but lost contact.

[2] For a period up to early 2001 the pursuer had been living in Germany and was involved in a relationship. When that relationship ended she contacted the defender in Egypt and arranged to spend a holiday there.

[3] She visited Egypt in February 2001 when the parties' relationship resumed. The pursuer returned to Germany but had made up her mind that she was going to go to Egypt to be with the defender and there was an intention to marry. She informed her parents of this intention and, while her mother had some concerns about the cultural differences, she accepted the pursuer's feelings for the defender and her wish to marry. The pursuer returned to Egypt in May 2001 and resumed the relationship with the defender and lived with him.

[4] The pursuer was raised by her parents in the Brethren faith, a faith she ceased to practice at the age of 18. From then and until the parties separated in or about September 2010 the pursuer, while remaining a Christian, did not display any outward practice of her religion.

[5] Throughout the parties' relationship the defender had followed the Muslim faith into which he was born. During the relationship the extent to which he practiced his faith varied but he always observed Ramadan and during the relationship was often assisted in that observance by the pursuer. He sometimes consumed alcohol which is considered sinful in the Muslim faith and also smoked cigarettes which, while not sinful, is frowned upon in said faith. His faith has become stronger since the birth of his children.

[6] The parties decided to marry and were married at the Notarization Office in Alexandria, Egypt on 8 August 2001. There are two translations of the marriage certificate, one produced by the pursuer, Production No 5/6/2 and one by the defender, Production 6/3/2. Both translations record that an interpreter was present and that the interpreter explained to the pursuer there was an Islamic law in relation to polygamy and the faith of children and that the marriage was conducted on the holy book of Allah and according to the custom of his prophet Mohammed. The pursuer did not fully understand the proceedings and any interpretation and became upset. The defender went through the words of the ceremony with the pursuer for a second time.

[7] Prior to the marriage on 5 August 2001 the parties had attended at the British Consulate in Alexandria where the pursuer swore a statutory declaration to the effect that she was not previously married and there was no impediment to her marrying the defender. There was a discussion with an official at the British Consulate about difficulties which might arise where a non-Muslim female married a Muslim male.

[8] Before the marriage the parties had discussed religion and the pursuer had shown interest and curiosity in the Islamic faith. The defender provided for her an English translation of the holy Koran and also gave her other books to enlighten her about the Islamic faith. The pursuer read parts of the literature with which she was provided. The parties discussed the faith of any children born to their union between a Muslim male and a non‑Muslim female.

[9] In the Muslim faith there is an obligation on a Muslim father to ensure that any children of his marriage are brought up in the Muslim faith. The pursuer was aware of this obligation and the parties discussed it before their marriage. It was the pursuer's position that if she had any children they had to be able to make their own choice once they were old enough to do so. The defender's position was that they could do this but until that stage was reached they had to be raised in the Muslim religion. There was no formal agreement between the parties before marriage as to the religion of any children they would have but there was an understanding of the defender's obligation and position.

[10] The pursuer's parents did not attend the wedding ceremony. They remain strict Brethren and would not have attended any ceremony where a child was not marrying another member of the Brethren except perhaps a civil ceremony in the UK. The defender's mother, being the only one of his parents who was alive at the time, did not attend the wedding ceremony. The ceremony was small and informal with only a few friends present. There was a reception afterwards in an American bar for which the pursuer dressed in the wedding dress she had bought with her mother in Germany before going to Egypt and at which alcohol was consumed.

[11] The parties lived together in Egypt for nearly a year but the pursuer became homesick. Both parties had been working in Egypt and gave up their employment. They moved to live with the pursuer's parents in Kinghorn. They lived there for a period of just over one year.

[12] The pursuer's parents were welcoming to the parties and in particular to the defender. There were no issues with his religion. The pursuer's parents gave thanks before meals and this was the only outward expression of their Christian faith when the defender was present. Any prayer or expression of faith by the defender when living with the pursuer's parents was done in private. The defender occasionally took alcohol while living with the pursuer's parents and he discussed religion with her father. The discussions were not in‑depth discussions. The parties got jobs and saved to get their own accommodation.

[13] After just over a year the parties moved into their own property at 59 Upper Kinneddar, Saline.

[14] There are three children of the marriage, "A" and twins "B" and "C". The pursuer believes that the children's names are Arabic and the defender believes that they are specifically Muslim names. The names therefore had a religious meaning for the defender but not for the pursuer. The defender, immediately after each child was born, said the Call to Prayer in the ears of each child which is a means of signifying that he considered the child was born a Muslim. The pursuer was unaware of this happening at the time.

[15] At about six months of age the boys were circumcised in Edinburgh which the defender insisted be done as part of the Muslim faith. The pursuer consented to the circumcision and signed the consent to the surgical procedure stating that the surgery would be performed on religious grounds.

[16] The parties' marriage began to deteriorate after the birth of "A" and continued to deteriorate after the twins were born. They lived, in effect, separate lives with the defender moving into a room of his own. They ceased living together as husband and wife in or around January 2010 when it was decided that the marriage had broken down irretrievably. They have attempted marriage counselling on several occasions to no avail.

[17] In around September 2010 the pursuer moved out of the matrimonial home with the children and went to live with her parents. She remained there for about six months before agreement was reached that she would move back into the matrimonial home with the children. The defender at that time moved out.

[18] Around September 2010 the pursuer started to attend the Church of Scotland and from about the beginning of 2012 she took the children with her to the church service. They are present for about fifteen minutes and then attended the Sunday school. This happens every second weekend when the children are with her.

[19] After the birth of the children and in particular the birth of the boys the strength of the defender's faith increased and his practice of his faith also increased. He prayed at home and visited the mosque. He continues to pray and attend the mosque. "A" has from time to time has prayed with him. He has read her parts of the Koran and she has memorised certain stories from the holy book. She has visited the mosque with him. While the boys are younger and less able to understand they too have been with him when prayers have been said and stories told and have visited the mosque.

[20] The children follow the Muslim practice of eating only Halal food and the pursuer is happy to comply. The pursuer is herself a fish eating vegetarian and would not eat pork or ham products. When the parties were together if any meat product was to be bought and cooked it was done by the defender who made sure that the product was Halal.

[21] When the parties separated in around September 2010 "A" was four and the boys were two. Such little exposure that they had to any religion at that time was to the Islamic faith. It is unlikely that any of the children had any sense of identify with any faith at that time. Until September 2010 they had little or no exposure to Christian religious practice other than the giving of thanks before meals at the pursuer's parents' home.

[22] When they lived together, the family celebrated Christmas with the pursuer's parents but in their practice of religion Christmas was not a particularly special religious festival. It was celebrated by the pursuer's parents as a family festival. At that stage Easter was not celebrated as a religious festival in the family. The children now celebrate both Christmas and Easter as a festival with the pursuer. They are exposed to Christian practices at school and nursery. They celebrate Islamic festivals such as Eid with the defender.

[23] "A" attends Saline primary school and the boys are at nursery school with a view to going on to Saline primary school. Saline primary school is a non‑denominational school but it is overlaid with a Christian background. The school will celebrate Christian festivals such as Christmas and Easter and there has been, during A's time at school, at least one nativity play in which she participated. She felt uncomfortable at participating because she was conscious that her father, the defender, may not have wholly approved. The defender objected when part of a Christmas celebration involving "A" was then to take place in the local parish church and she did not then participate.

[24] The defender, as a Muslim, has a religious obligation to ensure that any of his children are raised in the Islamic faith. He believes it to be in the best interests of his children that they are so raised and should be exposed solely to the Islamic faith at this time of their lives. He believes that attendance at the Church of Scotland and Sunday school will cause confusion in the minds of the children which will not be good for them.

[25] The pursuer believes that the children should have an understanding of both parents' religions. She is content that the defender teaches the children about the Muslim faith, prays with them and takes them to the mosque. She will not purposely buy non‑Halal meat for the children. She does not believe that it is in the children's best interests that there be an order granted ordering that the children be brought up in the Islamic faith. She would find it difficult to comply with any such order in the course of day-to-day life with the children.

[26] In their day-to-day lives with her and at school both now and in the future the children will be exposed to the Christian faith. The only exposure they will have to the Islamic faith is during periods of contact with the defender.

Finds in Fact and in Law

1. This court has jurisdiction.

2. The parties married in Egypt on 8 August 2001.

3. The parties have been separated since late 2009 and have lived apart since September 2010.

4. The parties are entitled to be divorced on the grounds that they lived apart for two years.

5. The pursuer is entitled to an order that the children, "A" , "B" and "C" shall reside with her.

6. The defender is entitled to an order for contact with the children, "A", "B" and "C" as follows:

(a) each alternate weekend from Friday at 4 pm until Monday at 9 am;

(b) each alternate Wednesday from after school until Thursday morning.

7. The parties shall each have exclusive residential contact for one week of the Easter and October school holidays, said weeks to be agreed in advance between them. The parties shall each have two weeks exclusive residential contact with the said children during the school summer holidays, said dates to be agreed mutually in advance between them.

8. The pursuer shall have exclusive residential contact for the first week and the defender shall have exclusive residential contact for the second week of the school Christmas holidays.

9. There was no specific agreement between the parties relating to the religious upbringing of the children.

10. With regard to the defender's crave for an order under section 11(2) (e) of the Children (Scotland) Act 1995 that it is better for the children that no order be made.

Therefore,

1. Divorces the defender from the pursuer;

2. Finds the pursuer entitled to a residence order in respect of the children "A", "B" and "C".

3. Grants an order whereby the defender is entitled to contact with the children "A", "B" and "C" as follows:

(a) each alternate weekend from Friday at 4 pm until Monday at 9 am;

(b) each alternate Wednesday from after school until Thursday morning.

4. Finds the parties entitled to an exclusive residential contact for one week of the Easter and October school holidays, said weeks to be agreed in advance between them. The parties shall each have two weeks exclusive residential contact with the said children during the school summer holidays, said dates to be agreed mutually in advance between them.

5. Finds the pursuer entitled to pursuer exclusive residential contact for the first week and the defender to exclusive residential contact for the second week of the school Christmas holidays.

6. Finds no expenses due to or by either party.

Therefore UPHOLDS the pursuer's pleas-in-law 1 and 4 and the defender's plea-in-law 4. Quoad ultra dismisses all pleas-in-law.

List of Authorities

Children (Scotland) Act 1995.

European Convention on Human Rights, Article 8.

Wilkinson and Norrie Parent and Child 2^nd Edition.

McNaught v McNaught 1955 SLT (Sh Ct) 9.

ML v IM Falkirk Sheriff Court 30 November 2011.

Re J [1999] EWCA CW 3022.

Re N 2011 EWHC 3737 (Fam).

Note
[29] The proof in this case was heard on 21 May, 24 and 30 July and 12 September 2012. On the first day a Joint Minute was presented which resolved most issues between the parties. The only outstanding matter was a specific issue order sought by the defender in relation to the religion of the children. The parties' agents made submissions and I made avizandum. It had been agreed that the defender would lead in the proof and he gave evidence himself and the court also heard from Sheikh Amer Jamil and Mostafa Hafnewy. The pursuer gave evidence and the court heard from her parents, Thomas David Beveridge and Elizabeth Joan Beveridge as well as Dr Katherine Edward, Clinical Psychologist. I generally found all the witnesses to be credible and reliable. I found the evidence of Dr Edward to be particularly helpful. There were differences between the pursuer and the defender, some on major issues. I do not think either the party was going out of his or her way to be untruthful. Each had a view about certain aspects of the evidence. I have, therefore, found it very difficult to reach any definite conclusions on what may or may not have been said or discussed in the period leading up to the wedding. There is not much dispute that religion was discussed but each party put a slant on why that was. From their evidence I have to conclude that there was no hard and fast agreement between them. I have also found it very difficult to reach conclusions about what was said at the actual wedding ceremony. The pursuer believed that the defender was the only person doing any translation while the defender said that there was a third party translator. Either way there was some confusion and it was accepted that the pursuer was in some distress even if the reasons for that distress differ. Either way I can appreciate why there may have been confusion or misunderstanding in her mind.

[30] Having considered the evidence, I believe that there are a number of areas which call for comment and which have contributed to my decision. These are the discussions between the parties before the marriage about religion; what may have been said at the wedding ceremony itself and what is said in the marriage certificate; the names given to the children; the boys' circumcision; the parties' religious practice. However, above all I have looked to what I consider to be the best interests of the children.

The Children (Scotland) Act 1995 Section 11(7)

"Subject to subsection (8) below, in considering whether or not to make an order under subsection (1) above and what order to make, the court (a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all."

[31] Therefore, a court must look at the welfare of the child and have that as its paramount consideration. It should only make an order if it is persuaded that it would be better for the child to do so. There is an obligation to take the views of the child into account. In this case I regard all the children as being too young to express a meaningful or informed view. With that background in mind I will turn to a summary of the evidence.

The evidence
[32] The defender is aged 39 and is a retail store manager living in Edinburgh. The parties met in Egypt about 16 years ago when the pursuer was on holiday and he was working at a Red Sea resort. Their initial contact was for four or five weeks in person then for a few months through letters and phone calls. The pursuer returned to Scotland to resume her studies and they lost contact for about seven years. The pursuer was then living in Germany and the defender in Alexandria. Their renewed contact was by telephone or internet before the pursuer went to Egypt for two weeks in about February 2001 and the parties discussed their feelings for one another. In about May 2001 the pursuer went to live in Egypt. The parties lived together for a short period in the defender's brother's flat in Alexandria. They married on 8 August 2001.

[33] The defender was brought up a Muslim although at the beginning of the relationship he conceded that he did not pray five times a day or adhere strictly to rules regarding such things as consuming alcohol. He did, however, always observe Ramadan. The pursuer was aware of his beliefs and they talked about it before they married. He gave her Islamic books so she knew more about it. He said that she had told him she had no specific faith and was looking for the truth somewhere having had an extreme upbringing in the Brethren. She had left that church when she was 18. He said that they also talked about children in the event he married a non‑Muslim and that could cause problems. He explained that in Islam children followed the father's religion and that he had a religious duty to make sure that they did. The pursuer's view was that they should be able to choose which he agreed they could when they were older but until then they had to follow his religion and he would not compromise on that. When the pursuer questioned him further he said that it was a condition of their marriage. After a few days thinking about it the pursuer agreed to marry knowing the defender was not prepared to compromise on this issue.

[34] They were married on 8 August 2001 in a registry office with two witnesses and a translator for the bride. It was a religious ceremony according to Islamic Law. Before the wedding they had been at the British Consulate and he believed an official there had explained the problems the pursuer might face when marrying a Muslim and the position of any children born in the marriage. The wedding certificate (5-6-1) was translated and each side has produced a translation (5-6-2) and (6-3-2). There are slight differences in the translations but I do not regard them as being of great significance in the whole context. Each contains a part dealing with special conditions or special requirements and the defender believed that there was a paragraph that children should be brought up in the Islamic faith. He believed that the pursuer understood this.

[35] After they were married they stayed with the defender's mother in Alexandria. It was their initial intention to settle in Egypt but in the first year the defender said that he noticed his wife seemed withdrawn and unhappy and was hinting that she missed her family and friends in Scotland. Their relationship was being affected and he agreed to relocate to Scotland even although that was a difficult decision for the pursuer. He was the youngest son and had the responsibility of looking after his mother and to leave her alone was a difficult decision.

[36] When they came to Scotland they initially stayed with the pursuer's parents in Kinghorn for about a year. They both got jobs and they bought a house in Cairneyhill. The defender maintained his Islamic faith, fasted during Ramadan and prayed five times a day and the pursuer appeared to have no religion. Her family celebrated Christmas and Easter more as a tradition than a religious festival. The pursuer sometimes supported him by fasting during Ramadan. His prayers were in a separate room for about five minutes. He did not go to the mosque often due to work commitments. He contributed to an Islamic charity to fulfil his obligation to one of the pillars of Islam.

[37] The issue of diet was important to the defender. He will only eat Halal meat and avoids all pork products and non‑Halal gelatine products. The pursuer was aware of this and bought any meat from Halal shops. She was vegetarian. It could be an issue if invited out. At Christmas there would be Halal chicken for him along with turkey for other family members. To take alcohol was classed as a sin. The defender conceded that after their marriage he occasionally took alcohol but once in Scotland he did not want to drink any more. He did, however, concede that he took alcohol during the marriage but stopped again and had not had a drink for a couple of years.

[38] He felt that the pursuer's parents were not happy when he prayed in their house. Their faith was extreme. For example, there was no television or radio in the house. They found it difficult to accept a Muslim in the family and her father even prayed that the defender would become Christian. They spoke a number of times about religion and politics. When the marriage was failing he said that he asked her parents for help but they attacked his religion and blamed him for the failure.

[39] When their daughter, "A", was born on 22 July 2006, he did not feel he needed to bring up the issue of religion again. They chose an Islamic name. He said that when she was born he held the child close to him and recited the Call to Prayer which was Muslim tradition to declare the child to be a Muslim although he was not sure if his wife was aware that was going on. "A" means longing or yearning and "Fatma" is the name of the daughter of the Prophet and was also the defender's mother's name. The pursuer was happy at the choice of names. When the twins were born two years later they did not have to discuss names before the birth, they were to have Arabic/Muslim names. "B" is the name of the Prophet, Joseph and "C" is a religious guide and is one of God's names in Islam. He did not think that his wife cared about the meanings but they meant a lot to the defender and the pursuer seemed to like the names. The twins were circumcised at six months and the pursuer understood and made no objection. It was done in Edinburgh and the forms were signed that it was on religious grounds. She signed the consent, was supportive and understanding. He denied that there was ever any suggestion he would take the boys abroad for circumcision if she did not agree.

[40] When children are young there is little that can be done regarding faith but the defender read from the Koran and made sure the children only ate Halal food and sweets. When "A" was young she copied her father when she saw him praying. He taught her a few verses which she memorised and took her to the mosque a few times. He believes that "A" is aware she is Muslim as she asks questions about the Koran, why they do not eat pork and what is Halal etc. The boys are still young but have started to copy him and he is teaching them verses from the Koran.

[41] The faith of the children is very important to the defender. He has an obligation as a Muslim to make sure his children grow up as good Muslims. It was clear before the marriage and his wife agreed. It was unfair that she could change her mind now the marriage has broken down. To have the children growing up in two faiths was not healthy. They could become confused or torn between the two parents. For example, he believed the children ate ham products regularly and if he asked them they concealed the truth. Having one faith can be for the benefit of the children and it should be his faith because that is what they agreed and it should not change now.

[42] While the parties were still living in the same house after they had effectively separated, the defender did not see any change in the pursuer's religious habits. She did not go to church. She moved out for about six months in September 2010 and went to her parents. He believed she started going to church then. Christmas was a family get together, not religious. Easter was not celebrated till "A" was about two or three years old when there were stories at nursery, egg painting and the like.

[43] Since the separation, the defender says that he has explained to the children why they have different religions, what they do or do not eat, why they pray and what it means to be a Muslim. He feels that what he does is age appropriate. The children get different stories from their mother, about Jesus and Mary, and they are confused about what they are. "A" has said she goes to church with her mother and then to Sunday school. That is causing her confusion. "A" was in a Nativity play at school and she was confused. The defender said that he did not have a problem with the children taking part in such activities as long as it was a school event. Attendance at church and Sunday school only started about three months ago when the contact arrangements changed. He believed they all went to Saline Parish Church every second Sunday and the children were in church for about 15 minutes then went to Sunday school. "A" does not talk about what happens there as she does not feel comfortable telling him.

[44] The defender was not comforted or pleased that the children were now exposed to the Christian religion as they were never exposed to it before. He feels he has to increase the level of Islamic education so that it equates to what they are exposed to by their mother. He thinks that the pursuer is trying to bring the children up in a different faith. The defender is the only one who can teach them to be Muslims. He knows that the pursuer is not happy that the children should be brought up as Muslims and she wants them exposed to both religions and then they can decide. He has heard "A" singing songs about Jesus and Mary and if he looks at her she stops and says she is sorry. She has asked to go to the mosque. The boys point to ham products and say they get them at their grandparents' house. He did not know if they still get ham but "A" assured him that she does not and she checks her brothers.

[45] At the close of examination-in-chief I asked the defender to comment on his position if no order was made. He said that he would feel it was a competition and he would have to put more pressure on the children to become Muslim. He agreed with me that it was not in their best interests to put pressure on them but he felt he had no other option as it was his duty as a father to make sure they were not torn between two religions. If an order was to be made he would expect the pursuer not to do anything which caused them to be torn or press another religion on them, respect the diet rules and not feed them ham or pork products, not permit her parents to feed them such products, not go to church or be exposed to a different religion.

[46] In cross‑examination the defender confirmed that the parties had lived together which was not encouraged by Islam and he used to smoke which was discouraged but not specifically forbidden. The wedding ceremony was in Arabic and the translator was a mutual friend, Mustafa. He said that he got the registrar to go over it all again and it was explained to the pursuer. He did not think she was upset. If there were tears they were tears of joy not that she did not understand what was going on. He would not have married if she had not agreed about the issue of children being brought up as in Islam. After the wedding there was a celebration with friends at a club. He did not accept that the pursuer would see him as someone who did not practice religion. She had seen him fasting during Ramadan and had in fact joined him.

[47] He accepted that there were cultural differences between Egypt and the UK but he was content to move to Scotland. He got on well with his wife's parents who were quite welcoming although they were not happy he was Muslim. Religion was a big part of their lives and there were prayers before each meal. But he did not think they went to church but to a meeting place on a number of days each week. He conceded he drank alcohol and smoked. He felt that the pursuer's parents were not happy he was a Muslim. Her mother had once come into a room and found him praying. At that time the children had no experience of religion except Islam. (If this evidence relates to the time when the parties were staying with the pursuer's parents then none of the children were born.)

[48] Things changed once there were children. The Koran was played "all the time" after "A"was born. The parties lived in separate rooms for three years and the defender prayed in his room where the pursuer did not see. "A" sometimes came in while he was praying and joined in. She learned verses from the Koran. He said that he had got closer to God in the last couple of years.

[49] He believed the agreement made should still prevail even if there was no longer a marriage. When asked about the interests of the children he accepted that an order had to be in their interests. The children's names were Muslim, not Arabic because they knew the children were to be Muslim. The boys were circumcised and the pursuer signed that it was for religious reasons. He denied she had no choice in the matter. Every Muslim is circumcised; it is a matter of hygiene.

[50] With regard to the order which he seeks, he would like the pursuer to be neutral and not try to implant Christianity into the children although he accepted they would be exposed at school. She should not allow them to eat non‑Halal products. He had no issue with Sunday school but did with church and praying. He agreed the pursuer had always shown his religion respect. She had never tried to prevent him taking his children to the mosque. He believed that the pursuer had brought ham to the house for a girl she looked after and when "A" asked for some ham she gave it to her. He had no problem with the children learning about their mother's religion but he did have a problem with faith. Without this order the children would not have a religious identity which was not normal and could have a psychological effect on them. They know they are Muslim and are becoming confused. He then said that he would not accept the fact that the children were not Muslims. No matter what the decision of the court he would teach them about Islam. If no order was made he would feel obliged to plant Islam in them. If an order was granted they would have an easier upbringing as the parents would not be arguing about it. He believed "A" was confused about a Nativity play and concerned at his reaction if she told her father about it. The defender said that the pursuer gave up her right to have the children brought up as Christians when she agreed to be married. The children would pay the price for her not adhering to what had been agreed before.

[51] The defender was finally asked to comment on aspects of Dr Edward's report (5‑7‑1). He disagreed with some of her conclusions. He felt there was no balance with the children spending 80% of their time with their mother in a Christian community. He would, therefore, have to work harder to give them his religion. He disagreed with the comment on page 29 that "the children were more likely to be damaged by the conflict which is arising from this issue between their parents and any impression they gain from either parent that the beliefs or lifestyle of the other parent is negative, than by the breadth of religious education or experience they gain." He had not been happy to give up a Sunday contact which allowed the pursuer to take the children to church. It had never happened before. He did not want them going to church. He was concerned for their well‑being and happiness and concerned that the pursuer's parents were influencing how they might be raised. They had no television or radio and he thought they were implanting Christianity into the children by reading stories etc. When re‑examined about Dr Edward's report he said that he did not think the children would feel under any pressure and on the contrary, if an order was made, the court would help with the likes of food. He insisted the children should have one faith and his faith was agreed and they have experienced it since birth.

[52] Sheikh Amer Jamil is a specialist in Islamic family law who also has a degree in law from Strathclyde University. He works with Muslim families and delivers pre and post marital courses. He has worked in the Middle East and is experienced in the application of Islamic family law there and its inter‑relation with Scots Law. He explained that in all countries which have Islam as the dominant religion, private law is kept under Islamic Law. Marriage between a Muslim and a non‑Muslim is allowed but disliked. There can be problems on breakdown of the marriage especially if that happens in a non‑Muslim country where the chances that the faith will be lost are higher.

[53] In Islam, a male has a responsibility to ensure that the children of a marriage are brought up in the Islamic faith. Where there is a "mixed" marriage, each party may want to bring up the children in his or her own faith and that can cause problems. In Egypt, where there is a mixed marriage, the couple are made aware of their rights and obligations and the woman is notified of these and is told of the faith of any child being Muslim. Each party has produced a translation of the marriage certificate and there are subtle differences in the translations. In one there is a section headed "special conditions" and in the other that is entitled "special requirements". In the former it is said that the interpreter has "explained" to the wife the rules of Islamic law relating to pregnancy and the children's faith and in the latter it is said that the interpreter "announced" the rules etc. Sheikh Amer preferred the use of "explained" as a more direct translation of the Arabic word.

[54] The faith of any children of a marriage has to be Islam and this would have been obvious. That applied whether the parties were married or divorced. The wife is deemed to accept the condition by proceeding with the marriage. The father's faith will prevail over the mother's. If the marriage is not carried out in an Islamic way it is not recognised as a marriage. This should all be addressed before marriage. The wording of the certificate would indicate this was an Islamic religious ceremony and not a civil ceremony although he was not sure if there was a purely civil ceremony in Egypt.

[55] In Islam, a father is responsible for education, upbringing and the learning of the Islamic faith such as praying, fasting or diet. Aged seven to ten, children are encouraged to pray, fast etc but at puberty it becomes obligatory. Prayers are said five times a day and at age seven a child should be encouraged to pray and by ten the father should encourage even more. Prayers last five to ten minutes. Muslims fast in the month of Ramadan and children are encouraged to fast as much as they can. The diet laws provide that there should be no alcohol or pork products; any meat should be Halal, i.e. slaughtered in an Islamic way.

[56] A non‑Muslim parent would be expected to ensure that a child knows to eat Halal meat and stays away from pork products and should not prevent him or her from praying or fasting. Such a parent could not, however, be forced to do this. He felt that being asked to follow another religion could be confusing for a child especially before puberty. It should be avoided until children are older when they can decide which is correct. Respect for all faiths should be taught. If a child was to attend Sunday school or church, that might be possible if the couple were together as long as the child was going to the mosque as well. Where they were separated, that was trickier to negotiate. The possibility of confusion would depend on the strength of the message in Sunday school or the quality of Islamic education. When asked about Muslims smoking he said that there was some disagreement. Alcohol was sinful although some Muslims did drink.

[57] When asked in cross‑examination about the conditions in the marriage certificate, he conceded that he did not know how much detail the interpreter would go into. The best interests of a child were the same in Scots and Islamic Law and he accepted that test was the right one. He would, however, expect a couple to stick to an agreement made before marriage. If an order was made this did not impose any obligation on the mother. The father would have to find a way of achieving Islamic education. Mother would be expected not to stop it or to give an opposite message. There would need to be co‑operation and respect for each other's religion. If the children were with their mother they would be exposed to her Christian faith and going to Sunday school would increase that exposure. The children will see dad as different to mum and the issue was not to give mixed messages. It was less of an issue where there was co-operation, respect and no conflicting opinions.

[58] Mostafa Hafnewy is a senior residential worker with Edinburgh Council Social Care Department and has known the defender for about ten years. He knew the pursuer and spoke of a good deal of socialising between the families at their respective houses. He was at that time married and had two children. He regarded the defender as a good Muslim. He used to take the odd drink but not any more since he became quite moderately religious. They go to the mosque together, fast, celebrate feasts etc. He thought the defender became a better Muslim after the children were born. Before the separation he said that he and the defender went to the mosque a lot and the children would be involved. After the separation they still go with the children. He believed the pursuer was a Christian but was not aware if she practised her faith. He views the three children here as Muslim children; their names are significant; the boys have been circumcised which is for hygiene but also a sign of faith and tradition.

[59] Mr Hafnewy said that his ex‑wife was a Christian Protestant and she agreed the children should be Muslim. In such a marriage parties go to the British Consulate who tell a wife what she is facing. They raise the issue of the upbringing of children. He was not aware if anything is said about religion of children after any divorce. He did say that the issue of children was not raised at his wedding ceremony.

[60] He believed that the defender's children knew they were Muslims at aged six and four. He sees them regularly. The defender reminds the children of prayer, speaks about the Koran and tells them stories.

[61] In cross‑examination he insisted that there were more than four or five visits with the parties as a family. There had been regular coming and going over ten years. When he visited the Saoud family they would have dinner and he and the defender would pray. He did not know where the pursuer was when this was happening. He said that he chatted to the pursuer regularly and never got the impression she was not happy or wanted to say anything. He sees the defender most times he has the children. They visit the mosque and the defender goes over the Koran with the children. The children are too young to decide for themselves but it is important in a mixed situation that they are brought up in Islam. He accepted that the children celebrated Christmas and Easter but they were festivals and not religious. He accepted also that the children were three and one at the time of the separation which puts certain of his evidence about what the defender did or said in relation to the children into context.

[62] The pursuer confirmed the circumstances whereby she met the defender. She said that when they got together after an absence of about seven years they socialised in bars, drank alcohol and met the defender's friends. It was a bit like a holiday romance. Religion did not seem to be a priority or an issue. They were just happy to be together. She moved to Egypt and they lived together in his brother's flat. Cohabitation was frowned upon so it was not for long. They could not be open therefore decided to get married. She was aware of his Muslim background but he seemed quite westernised. She never thought that she would have to deal with religion because of that. Religion was discussed between them. She did not remember him going to the mosque or praying before they married. That changed after they married and they lived with his mother who was devout.

[63] The pursuer had a strict Christian upbringing with her parents who are Brethren. They had strong morals and beliefs and strict rules about social life with no television or radio in the house. The pursuer left that faith when she was about 18 when she wanted to go to Art College, have more freedom and travel. She is now Church of Scotland which has the same basic beliefs as Brethren but different ceremonies. She was interested in Islam and read books. Some of the good things are similar to Christianity but she could not agree with the main issues and never considered converting. She said that religion was not part of their lives before they married. She had no recollection of any discussion before marriage about the religion of any children and in particular could not remember a discussion where he said that he could not marry unless she accepted the condition that children would be Muslim.

[64] She did not believe the wedding ceremony to be a religious ceremony. She described it as a nightmare in a building full of people. They were dressed in jeans and T-shirt and went into a room where she was told to repeat what a man said. She went along with it as she wanted to get married. She had no clue what she was saying as it was in Arabic. She said she was in tears because of this. They went through it again and the defender translated. There was no one interpreting during the ceremony. Nothing was said about the rules of marriage or the religion of children. There were only two or three people there and neither set of parents was present. After the ceremony they went with about 12 to 15 friends to the American or Ex‑pat club where alcohol was taken.

[65] The couple stayed in Egypt for a while then the pursuer wanted some "normality" in life and wanted to come home. They talked about a move to the UK and decided to do it. The defender did not seem to have any concern about being a Muslim in another country. They lived with the pursuer's parents for about a year while they got jobs and saved. Her parents helped out. The defender got on well with them and would occasionally have a beer with her father. Religion was not an issue. He did worship at times like Ramadan and he did that in the bedroom. The pursuer said that the defender drank quite a lot, more than she did, but would stop for Ramadan. Religion did not become an issue till they had children and then separated.

[66] The pursuer agreed the children would have Arabic names because of their heritage but she did not want the "usual" names. She liked the names chosen but would have liked her father's name in the middle of the boys' names but it was not a big deal. It had nothing to do with being brought up as a Muslim. The boys were both circumcised and she went along with it as she knew that was what he would want to do. She felt reassured by doctors and nurses and if it was done in Scotland it would remove any fear that the boys might be taken away to have it done later. By the time the boys were born she felt the marriage was over. Once they were born, however, the defender started to take religion more seriously.

[67] When they were with her parents, they gave thanks before every meal. Her mother did not always buy Halal meat but she got fish which was fine. When the children came along they did Christmas and Easter and there was Nativity etc at nursery. The defender was involved in all of that. The pursuer accepted that some of the true meaning of Christmas was lost but the family all knew the true reason and they had trappings like a nativity scene. Her parents regarded it as a religious festival but they see the day itself like any Sunday. It was an occasion for a family gathering.

[68] At the time they actually physically separated "A" was three and the boys were one. She was not aware of "A" praying with the defender but she did see her in his room a couple of times when he was praying. None of the children at that age would have a clue about exposure to one religion rather than the other. She did not see the children as Muslim or Christian but felt they should grow up and make their choice. She said that religion was important to her now and she accepted that it was also important to the defender. She now goes to Saline Church every Sunday and the children go when she has them at the weekend. For the first ten to 15 minutes they are in the church then they go to Sunday school which they enjoy. They have lots of friends there; it is social and not religious. They all love it and "A" has never been upset about going. In daily life she teaches right and wrong. "A" is aware of the prayers before a meal. She got a book of bible stories at Sunday school. The pursuer does not teach them things about religion, for example, she does not say that Jesus is the son of God. She is concerned that "A" asks about strange things and seems obsessed with death and what happens when one dies. The pursuer said she had respect for Islam. She sings songs which "A" comes home singing after contact with her father. She has no concerns about the children going to the mosque but she does not want them bombarded or being forced to learn. But she should be able to do the same, i.e. take them to church and there should be an acceptance about each other's religion.

[69] When asked about diet and, in particular, giving the children ham she said that once, about three years ago when she was looking after a friend's child she had ham for that child's lunch. She regarded the children as obsessed about ham and pork. She herself is a fish eating vegetarian so the children eat a lot of fish. Her parents would not consciously give the children ham and would certainly not make them a ham sandwich. They have maybe had some ham there once but they are now very conscious of the diet.

[70] The pursuer was then asked about the effect an order would have if it was made. She questioned how she could comply as she could not change the way she feels. She thought the boys were too young to understand. "A" was beginning to pick things up but if both parents were honest and clear the children would accept the situation. Any religion is a way of life - being a better person, knowing the difference between right and wrong. The comments made by the defender in evidence that he would have to work hard to implement Islam caused her concern and she described that as being almost abuse.

[71] She denied the evidence of Mr Hafnewy that the families socialised a lot. She said that there was a total of about six visits. She had not seen the families pray together but she had seen the defender and Mr Hafnewy pray.

[72] In cross‑examination the pursuer was asked about her parents' religion which was a strict form of Christianity. She left at 18 and went to Art College then she travelled. It was during these travels she met the defender and a holiday romance ensued. They were in touch for a few weeks afterwards then split. The defender sent her a Christmas card. She lived in Germany for six years and on the end of a relationship there she came across this card and made contact with the defender who was in Alexandria. She went in February 2001 for 2/3 weeks then returned to Germany for about 4/6 weeks then she moved to Egypt where they lived together in the defender's brother's flat. They married on 8 August 2001. The statutory declaration bearing the stamp of the British Consulate was dated 5 August and she accepted that she was mistaken when she said that meeting had been after the wedding. She recalled being told that if they had children in Egypt she would not have any rights. She had no recollection of anything being said about the children's faith. There was no discussion with the defender's mother before the marriage. When presented with the translation of the wedding certificate and the reference to "special conditions" she accepted this had been prepared by a trustworthy interpreter but the defender's cousin had not translated at the wedding. The defender had translated or interpreted.

[73] When the pursuer resumed her evidence on 30 July she agreed that her mother had visited her in Germany in 2001 before she went to Egypt. This was to make sure she knew what she was doing and had thought it all through. She could not remember religion being raised or a discussion about children being brought up in the Muslim faith. She described her parents as not being "Exclusive Brethren" but simply Christians with a strong faith. Her mother knew she was marrying a Muslim and was worried that she would be treated well. The discussions were emotional and tearful at times.

[74] The defender gave her books about Islam as she wanted to understand it more. She did not understand all the differences with Christianity. Religion has always been a part of her life and she was interested. He got a Koran in English and she read quite a lot of it. The books had nothing to do with bringing up children. They were about Allah, comparisons with the Bible, the differences in the views of Jesus, how Muslims should live their lives including no alcohol and the attitude to sex before marriage. At that time the defender did not live the life of a strict Muslim so she did not think of it as an issue. She maintained that she did not think the wedding ceremony had been a religious ceremony but she now accepted that it must have been. It was the only way they could get married as she did not want to be married in a mosque. She described the ceremony as "awful" and she has wiped a lot of it from her mind. The religious aspect was never discussed. She did what he asked her to do as she trusted him.

[75] After the wedding they went to live with the defender's mother. She was a very religious lady. She did not think that the defender went regularly to the mosque at that time. She had a job in the excavations and the defender worked in sales. She enjoyed her job and life but after about a year she wanted to return to the UK as she missed her family and liked the freedom she could have there as opposed to the fairly restricted life in Egypt. She described their apartment as depressive and it all got too much for her in surroundings that were not too clean, had rats and mice and rubbish in the streets outside the apartment. The defender agreed to go with her.

[76] They initially lived with the pursuer's parents until they got a house of their own. They experienced trouble in the marriage. After "A" was born the defender slept in a different room and relations between them were very rare. She described it as a miracle that they had the boys. Between the births they also attended counselling. She maintained she did not know why Mr Hafnewy was saying they socialised as much as he said; it was simply not true. They did socialise with someone called Ashraf, about twice at each house including once at his house at Ramadan. When things were all over between the parties although still in the same house, they all came for the boys' birthday and it was awful.

[77] She did not accept the names of the children carried importance for the defender's religion. She saw them as Arabic names which she loved. She did not want the typical religious names. "A" means longed for and Fatma was his mother's name. She had died without seeing "A", hence "longed for". "B" she chose and she linked it to Mary and Joseph. "C" sounded like a nickname and she liked it. The defender registered the births quickly adding his own and his father's names. She would have liked to have seen her father's name as well. She felt that signing the consent to the circumcision was the only option she had as she believed that it would have been done no matter what she thought.

[78] She said that they lived separate lives from when she was pregnant with the boys and at one point she moved out with the children. At that time the defender was praying regularly in his bedroom. She was not aware that he had whispered the Call to Prayer into the children's ears when they were born. She fasted during Ramadan to support him and she learned songs. He tried hard to observe Ramadan.

[79] She agreed that prior to 2010 she did not go to church. She prayed but not in the same way as the defender. The only outward sign would be when her parents gave thanks before meals. She felt the defender would never have allowed her to go to a church with the children and when they separated that was the first thing she did. Once when "A" was at nursery there was a Christmas service in the church and the nursery children had learned a song when the defender learned about it he was angry and refused to let the family go. He wanted to control everything. The pursuer now attends Saline Parish Church. She has a bible at home and if the children choose it as a book for a story she will read from it and that happens about once a week. She prays every night before going to bed, her prayers being for people and family. "A" can be with her and will say the names of people to pray for. The boys are in bed and not so aware. She tries to teach the children what is right and wrong.

[80] She was concerned that "A" was asking what happened on death as she thought that if she died she would not be in the same place as her mother due to the differences in the religions of her parents. That seemed to scare the child and her mother did not want to stress her with those kinds of thoughts. "A" learns hymns at school and the family sings in church on a Sunday. The pursuer was not aware that "A" had told the defender that the boys had been given pork by her (the defender's) father nor was she aware that "A" was wary of talking to her father about Sunday school. The pursuer found that worrying.

[81] When pressed further about the matter of Christian upbringing, the pursuer said that she would not have the children confirmed. She would make it clear to them that their parents believe in different things, that they have to respect both religions and should not put one religion down. It would depend on how the parents dealt with it and she firmly believed that was in the children's best interests. She agreed that there had been no sign from her before 2010 of any Christian practice but at that time the boys were still babies and not even at nursery. They had not had what she described as a "super Muslim" upbringing when the parties were together. "A" may have been in his room when he was praying but that was it. She disagreed that there had been more Muslim than Christian practice. The house was very stressful. She did not feel the need to teach babies and a toddler (about religion) when they could barely speak. She did not pray openly like her husband but could talk to God whenever she liked. She believed the children could cope with exposure to two religions. Their parents lived separate lives and at school they are exposed to different religions. They would not become confused. It would depend on how it was handled. "A" says that with her dad she is Muslim and with the pursuer she is not which was how she was picking up the differences. At her age she cannot be expected to know what she is but she does know that her mother and father are different.

[82] The pursuer's feeling was that if the defender had been a very religious man they would not have married. She respects his faith. She felt, however, that this issue was so important to him that he would do anything including break the law to succeed. She agreed the defender gave money to the Muslim tax system when they lived in Egypt but she was not sure if he did here.

[83] Thomas David Beveridge is the pursuer's father and he confirmed that the parties had been separated for about two years. He is Christian Brethren and goes to church on Sundays and on three nights during the week. The pursuer left the Brethren when she was 18 but she remained a Christian. He would prefer if she worshipped with them but had no difficulty about her attending the Church of Scotland. He would have preferred if his daughter had married a Christian but accepted what happened. He would not have gone to the wedding even if it had been held in Scotland and that was due to the fact the pursuer was not marrying someone from the Brethren. He was not happy about his daughter marrying and living in Egypt due to issues of diversity, religion and culture. He was concerned that the treatment of women was very wrong.

[84] He and his wife agreed with the parties that they would give the defender accommodation etc and they received him into their household. They got on well. The defender observed Ramadan and ate Halal meat but otherwise did everything that westerners did. Mr Beveridge got on well with the defender and they discussed religion agreeing on some things and disagreeing on others. They did not fall out. The defender gave him a book to read to help him understand his religion. He did not attend the mosque while living there and did not seem to pray. He drank alcohol and smoked. He felt that the couple were financially reliant on his wife and himself for about 18 months.

[85] Mr Beveridge got no impression that religion played a big part in the defender's life. He did not participate in religious festivals (Christian) but when the children came along Christmas was celebrated. He never saw any evidence of the children being raised as Muslims before separation. He believed that no child was born a Christian or a Muslim. He said that he asked both of them what would happen if they had children and both were silent. The issue of religion only really arose when the defender sought some help about a possible separation and he tried to tell Mr Beveridge what was to be. He tried to explain the Christian view. He said that he thought that it was at this time the defender became Muslim and up to then he had been Egyptian. He has noticed lately that the children were coming back (from contact) asking about death and that concerned him. He did not think that the defender was respectful of the pursuer's religion. He regarded the defender as controlling and dominant. Mr Beveridge respects the defender's faith.

[86] When asked about diet he said that he had ham occasionally and if the children had asked for it he would give it to them but he would not go out of his way to do it. As far as he is concerned the only part that (Christian) religion plays in the children's lives is when they give thanks for food. He puts the children under no pressure and believes they will make up their own minds when they are old enough. He disagreed that they would be confused. They should be told and would understand. It was important that they have an understanding of Christianity.

[87] In cross‑examination Mr Beveridge explained, as he saw it, the main differences between the two religions particularly in relation to the role of Jesus. He also explained his type of worship and the frequency of it. He thought his wife may have raised with the pursuer the problems there may be marrying a Muslim man. He was not aware that a child of such a marriage should be brought up in the Muslim faith. He had not attended the wedding of either of his daughters as they were marrying someone who was not a Christian. He felt that he accepted the fact that his daughter was marrying a Muslim.

[88] He first became aware that the marriage was in trouble just after the boys were born when the defender asked if he and his wife could help. The defender had lived in a separate room for some time as he said that he needed sleep to do his work. There may have been hints of trouble while his daughter was pregnant. He had never seen the defender pray and had not known him to attend the mosque.

[89] He said that he did not know about pork or ham being forbidden until they were told in relation to the children's diet and he did not realise it was for a religious reason. He was not aware if the children only had Halal meat. When pressed he said that the children could form their own judgements as they grew up. That was what his daughter had done having been brought up in Brethren meetings from birth. The fact that the children sing a hymn or say a prayer does not equate to understanding. They can listen to what is said and that was different from learning. When a child was old enough to grasp the truth he will decide and there was no recipe for confusion.

[90] Elizabeth Joan Beveridge is the pursuer's mother and is also a follower of the Christian Brethren. When she heard that her daughter was getting married she was worried as she was in another country and another culture where wives were not always treated well. But her daughter was about 30 so she could not tell her what to do. She was more worried about culture and the lack of certain freedoms such as to go out and walk where or when she wanted. She visited her daughter in Germany every year and in particular paid a visit before the wedding. She was not trying to talk her out of the marriage. They talked and Mrs Beveridge helped her daughter choose a wedding dress.

[91] After the parties came to the UK they lived with Mr and Mrs Beveridge for about a year. They were dependent until they got jobs. She welcomed the defender into her home and had no concerns and no issues with his faith. There were discussions about his faith and she appreciated the moral aspects of Islamic belief. She did not recall ever walking in on him praying. She would have been surprised if he was praying as there were no signs but she would not have stopped him from praying. She knew the defender ate Halal meat but she would not buy it because of concerns at the way it was killed. She knew the defender observed Ramadan. He drank wine and beer and quite often had a beer when he came in from work. He never mentioned that he attended the mosque.

[92] During A's first year at nursery, she had been an angel in the Nativity play. The children were to perform in the church and the defender would not allow her to do it. Mrs Beveridge said he was very angry and it was after that she noticed things were different between her daughter and her husband and she became aware they were not happy. Up till then the defender had participated in Christmas although the Brethren do not observe Christmas and Easter with the same emphasis as other Christians. She said that there was no evidence until that incident that the children were being brought up as Muslims. She liked the children's names and did not know they had a Muslim meaning. With regard to the boys' circumcision she discussed with her daughter that would be better done in Scotland in a hospital rather than have the boys taken to Egypt as she believed that it would have been done by the defender in any event.

[93] She felt the change was noticeable about three years ago and the marriage was beginning to end. The defender came to see her husband and she but they could not get to speak unless they agreed with what he was saying. She started then to notice changes in his behaviour. He became more outwardly Muslim and talked about it more, gave up smoking and drinking. He was not respectful of the pursuer's religion; it was all Islam or nothing. The pursuer is respectful of Islam and she has heard how she speaks to the children. "A" seems obsessed with death and the fact that she would not go to mummy's heaven but she would go to daddy's heaven. It was not ideal that the children should be exposed to both faiths but they should be able to have an understanding of them and they can make their minds up as they get older. She stated that she respects the defender's views on ham and does not buy ham to feed the children.

[94] In cross‑examination she denied she knew about children (of a mixed marriage) being brought up in the Muslim faith but she did remember her husband asking if they had thought about the faith of any children and neither saying anything. The non‑attendance at the wedding was because it was not in her church. If it had been a civil ceremony in the UK they would have gone. In any event they could not afford to go to Egypt. She confirmed that Easter and Christmas are more of a tradition than a religious festival but there were family gatherings for them. She was aware that the parties and the children went on holidays including to Egypt.

[95] She felt that the parties were leading separate lives when the pursuer was pregnant with the twins. She agreed that the children had no exposure to Christianity before about September 2010 and that it would not be easy to bring them up in two faiths. However, their whole school lives would be in a Christian system. Up until about September 2010 they had had no guidance in anything. She has heard "A" say her dad is a Muslim but has not heard her describe herself as Muslim.

[96] The final witness was Dr Katherine Edward, a clinical psychologist. She had produced two reports (5.6.3 and 5.7.1). The first was following discussion with the pursuer alone and the second included discussion with both parties. I do not intend to go through these reports in any detail. She felt that co-operation and agreement after separation was both important and relevant as separation involves a lot of change and disruption (for children) and how that was managed was of prime relevance. She got the impression that religion was important to both parents. If the pursuer could not, for example, take the children to Sunday school that could be distressing for her and could interfere in the manner in which she thought it best to bring up her children. It could impact on her ability to parent and anything like that would not be of benefit to a child. A child of six could view himself or herself as something he or she is told he or she is such as Muslim or Scottish but they would not have a full understanding of what that meant. Where there is a suggestion of potential confusion it can usually be brought back to how the parents are managing. If the messages are confusing the parents should manage the differences and co‑operate in managing the situation to allow both parents to bring up the children.

[97] Her second report followed discussion with both parties. She felt that the defender was concerned that the children would grow up confused if exposed to both faiths. Dr Edward never thought that the pursuer ever considered one faith right and the other wrong although by using these words she felt the defender may have a view that the two religions are mutually exclusive. Confusion is inevitable in children about all sorts of issues. Parents have to manage questions children ask in an age appropriate way to encourage the child to understand in a positive way. She felt that mediation might help in conflict issues but she sensed that there was no room for negotiation with the defender being so clear in his religious beliefs. She sensed that his obligation as a Muslim was of prime importance to him and she was not sure if that could be separated from what was best for the children.

[98] There is no reason why conflict such as this could not be handled in a separation. That would depend on the extent of the co-operation between the parents. Regarding "A" being confused or uncomfortable at the nativity play, that was more due to her father's reaction rather than her discomfort. Similarly with Sunday school, she was uncomfortable at her father's reaction rather than attending. She felt the pursuer was happy to allow the children to be part of both faiths with no desire to bring them up as Christian or push them away from the Muslim faith. It was put to Dr Edward that the defender had commented when asked what he would do if no order was made that he would have to work harder to ensure the children knew about the Muslim faith. She said that if any parent was saying that he or she would do something not in a child's best interests that would cause her concern. The parent may not be able to prioritise what is best for the children. It read as if the defender had made a conscious decision to do something which might not be in the best interests of the children by putting priority on religious upbringing rather than their best interests.

[99] In cross‑examination, Dr Edward said that she recognised the main differences between the two religions and that the defender had told her it was his religious responsibility to bring the children up as Muslims and that was a priority to him as his faith was important. She thought that he would find it exceptionally difficult to compromise. It was put to her that with all that had happened before the marriage about religious upbringing of children the defender could not compromise. She responded by saying that in a breakdown, many arrangements for children necessarily change. The younger the children are the less they have any sense of identity and any change is easier to adapt to. Given all the defender believes she would not be surprised if he felt the pursuer had somehow "moved the goalposts".

[100] She accepted that the defender did not say that one religion was right and the other wrong. He said there would be problems if a parent said that one was right and the other wrong although she felt that comment might reflect his view. The children had not started in the two faiths at the same time but at aged three and one they had no clear sense of religious identity and what was happening was not necessarily detrimentally confusing. Aged six and four they could raise questions and there could be confusion but she does not regard confusion as a permanent or necessarily a detrimental state. It all has to be managed in a way that is best for the children. She doubted that a child of six would see religion as a way of life.

[101] As in any breakdown there is possibility for conflict but that could be managed. While it was always a possibility that it could develop into a competition between religions she did not get the sense that either parent saw it that way. The defender wants the pursuer to be neutral and not expose the children to church, Sunday school, different diets etc and if an order was made in his favour it could reduce levels of conflict but it could also make the conflict more significant. When I asked a little more about this she said it was difficult for a resident parent to be put in a position they did not really believe they could do. It would be difficult to manage in situations like school, Christmas etc or if a child asked that parent about the Christian religion.

[102] Her conclusions at the end of the first report were:

"i. It is a considerable positive in this case that the three children appear to have strong positive relationships with both parents. The continuation and protection of these relationships should be prioritised for their wellbeing. ii. Any order that the children be raised in only one religion, to the exclusion of the beliefs and practices of the other parent, would likely cause considerable distress to that parent and could be so disruptive to the role of parenting as not to be to the child's benefit. iii. A care arrangement in which birth parents could educate the children about their own faith and attend their own religious ceremonies, whilst both respecting and acknowledging the beliefs of the other parent, would likely be the most manageable and appropriate for the children."

[103] Having interviewed both parents before producing her second report she did not feel that she had gained further information in conducting the supplementary assessment to lead her to alter her initial conclusions. She did add three further and sensible conclusions relating to contact.

Submissions
[104] I am grateful to the solicitors for the parties for producing written submissions. These are with the case papers and I do not intend to rehearse them in this Note. Mr McCran made two minor changes to his written submission and then turned to the factual matters in dispute.

[105] Just before the marriage it is the defender's position that he raised with the pursuer the issue of faith. They discussed it and she got books and a translation of the Koran. The pursuer confirmed this and said she considered these books and the Koran. They differ on the discussions but the defender now said that he raised the issue of children being raised in the Muslim faith and she agreed. The pursuer said she did not remember that and said in evidence something along the lines that she never had a fear that she would have to deal with it; it would be idyllic all the time.

[106] The parties attended the British Consulate although the pursuer was confused when it occurred. The statutory declaration is dated three days before the marriage. It is a standard statutory declaration for someone not a national marrying abroad; simply confirming that she was free to marry. The defender's position is that officials at the British consulate raised with the pursuer the issue of children. He was not cross‑examined by the pursuer's solicitor on that point. The pursuer said there was a discussion along the lines that if there was a child in Egypt the mother does not have many rights. In cross‑examination she confirmed that the meeting was vague in her memory and in particular she had no memory of receiving any information regarding children.

[107] As far as the marriage ceremony is concerned the certificate produced two translations and only Sheik Amir spoke to them. He preferred the defender's translation where there was conflict and that refers to the pursuer being advised of Islamic law regarding polygamy and the issue of the faith of any children. That, in his view, corroborates the defender's evidence that it was raised at their wedding. The defender accepts the pursuer had some difficulty understanding what was taking place and he went through it again afterwards. Therefore there should be no doubt in her mind.

[108] That is the start of what Mr McCran referred to as the "status quo" as far as the children's religion is concerned. The status quo remained until the parties moved into different homes in December 2010. Up to that point the children were not involved in any Christian religious practice. They may have been aware of thanks being given before meals at the pursuer's parents' house and that there was some sort of festival at Christmas or Easter but not in a religious sense. "A" was involved in prayer and was reciting simple verses and had been to the mosque. The Islamic culture is the father teaching religion to the children and that was underway and has continued.

[109] The defender has no difficulty with the exposure of the children to Christianity, where occurring in a natural way in society, for example at school. His only difficulty is an alternative faith as recently adopted by the pursuer being actively promoted to the children by, for example, taking them to church or Sunday school. He has no difficulty about the pursuer answering any questions the children may have.

[110] The pursuer came from a devout background and her parents are committed Christians. She practiced that religion until she was 18 and after that her religion could be described as dormant. The defender is and always has been a Muslim, although the extent of his observance has varied. He did smoke and drink and sometimes did not pray five times a day, but he did attend the mosque relatively regularly.

[111] What the defender describes as the status quo maintained until early 2012 when the pursuer started taking the children to church and Sunday school. There is necessity for an order to be made otherwise things will only get worse. The defender cannot compromise because of his religious obligation. The issue of religion has a higher priority than in many other cases involving the break-up of a marriage. There would be no practical problem for the pursuer if the order was granted. All she would need to do is what she has been doing save take the children to church or Sunday school.

[112] He finally made brief reference to two of the cases. I had raised the case of Re N being a recent English case and I referred in particular to the comments made at paragraph 85. Mr McCran indicated that he agreed with most of these comments.

[113] He also referred to M L v IM at paragraph 102 where matters are left with the mother and therefore her religion.

[114] Miss Mackay for the pursuer questioned how much importance should be placed on how the parties viewed their own faiths prior to and during the marriage. Strength of faith is a personal issue and can't be measured by things like attendance at church or mosque. She said that this dispute has to be looked at purely in terms of the 1995 Act that whether or not it was in the best interests of the children that an order be made or it was necessary that an order be made.

[115] She questioned what was referred to as the status quo given the children were aged one and three at the separation and not old enough to have had any concept of being either a Muslim or a Christian.

[116] The pursuer did not accept that there was any agreement with regard to the raising of the children in the Muslim faith. She accepted discussions took place but they took place in the context of discussions about religion in general. She accepted what was said in the translation of the marriage certificate but maintained it was not explained to her at the time. Her evidence was that she was upset and stressed during the marriage ceremony.

[117] At the point of any marriage a number of promises are made but this is now in the context of a divorce so for a start the parties have broken the condition that they would remain together but none of that is necessarily relevant to the best interests of the children.

[118] With regard to the defender's argument about the status quo and the possibility of confusion if the children were raised in two faiths, she pointed to the evidence of Dr Edward who said that there was no conclusive evidence that this was the case. How this situation is managed and co‑operation is important. There is no evidence that the children will grow up confused and even Sheik Amer said that as long as there was co‑operation there may not be confusion. As far as the defender's position that he could not compromise because of his religion was concerned Sheik Amer spoke of situations where equal exposure to two faiths could work. Any situation can be managed and it is for the parents to make a choice to co‑operate or not. The defender has not proved that it is in the best interests of the children that an order be made and has not established that the children will grow up confused.

[119] Turning to the question of whether an order should be made or there should be no order, it was clear the pursuer was respectful of the defender's religious beliefs and does nothing like feeding non Halal meats to the children. She is happy that their attendance at the mosque and the teaching of the Koran and praying with the defender but she would like the same consideration given to her own religion. If an order was made the children could not attend the church or Sunday school and is that in itself enough to justify an order being put in place?

[120] She turned to the question of proportionality and she too looked at the case of Re N dealing with proportionality at paragraph 61 and article 8 of ECHR. She also looked at paragraph 85 and said that in that case court was looking to prevent extreme forms of religion whereas here the pursuer was happy for exposure to the Muslim faith but not to the exclusion of all else. At paragraph 87 it is in fact said that the child Re N could attend both services.

[121] In this case the children attend mainstream schools and live with a Christian mother. It would be difficult to place obligations on the mother. In the case of McNaught there is reference to a barrier being placed between mother and children. That is identical with the situation here.

Discussion

[122] This is a simple yet at the same time complex issue which will have a profound effect on the lives of these three children. Should there be a specific order made that they should be raised in the Islamic faith or should no order be made? Either way it is easy to foresee problems arising especially where I fear from parts of his evidence that the defender may have lost sight of the fact that the primary consideration of the court is the interests of the children, not what may or may not be contained in the marriage certificate and not his religious obligation to raise the children as Muslims. I should say at the outset that I do not for one moment doubt the defender's beliefs and the strength of his faith. I do think, however, that the evidence tends to show that his observance of his faith has grown in recent years especially since the birth of the boys. I was, however, slightly concerned at his response when I asked what would happen if it was decided that it was better that no order be made. He replied that in that event he would have to work harder to make sure Islam was instilled in the children. He repeated that determination in cross‑examination. In a situation where the children are living with a primary carer who is Christian and attending school or nursery with a Christian background that could be a recipe for discomfort, upset or confusion in their minds and could have consequences in their day to day lives and that is certainly not something which is in their interests. I will return to this later in this Note.

[123] The defender was born into the Muslim faith and at the time he first met the pursuer and then when they rekindled their relationship in 2001 he did not appear to the pursuer to be particularly devout. He observed Ramadan and other festivals but did not go to the mosque very often and was not seen by the pursuer to be in prayer. She also fasted with him during Ramadan. He drank alcohol from time to time which is forbidden in the faith and he smoked tobacco which is frowned upon. The evidence would seem to indicate that his faith became stronger when the parties came to live in Scotland and in particular after the children were born. He said that when they were born he whispered the Call to Prayer in their ear which is regarded as a sign that they are born into the Muslim faith. He prayed in his room in private and after the separation increasingly visited the mosque when he could. His work often prevented him going to Friday prayers. He gave evidence that "A" had prayed with him on occasions before the parties separated and that now "A" in particular prays and the boys are beginning to do so. I have to say, however, that I agree with Dr Edward that at their age the children are unlikely to see themselves as having any particular religious identity. I do not accept that at age three "A" would see herself as a Muslim. The whole family (he and the three children) has visited the mosque and has prayed along with friends and their children. He reads verses from the Koran and "A" has learned some verses. It was clear from his evidence and that of Sheikh Amer that every Muslim male has an obligation to ensure that his children are brought up in the Islamic faith. I accept that as a duty but it must be balanced with the best interests of the children and they may not necessarily be the same. Notwithstanding what the pursuer says about it and bearing in mind what Dr Edward says, I question whether children who are now 6 and 4 have much, if any, understanding.

[124] The parties disagree on the state of knowledge of the pursuer of the issue of the religion of children prior to the marriage. It is the defender's position that when they were contemplating marriage the question of the religion of children was discussed and that the pursuer agreed that the children would be brought up in the Islamic faith. There is no doubt that a statement to the effect is contained in the marriage certificate. The pursuer also said that at the meeting at the British Consulate the official there explained that was the case where a non-Muslim female married a Muslim male. The pursuer on the other hand said that she was interested in the defender's religion. He provided her with books and got an English translation of the Koran. They discussed the question of children but she denied that she ever agreed the children would be brought up in the Islamic faith. Her position was that the children should be exposed to both Islam and Christianity with a view to being able to decide for themselves when they are older. As to the marriage ceremony she said she was upset and distressed when it was happening, did not believe that there was a separate interpreter and had to get the defender to go over it all after the event. I have no doubt at all that if the parties had had children in Egypt they would have been raised as Muslims. But the children were born in Scotland and are being raised here with their mother as their primary carer. That is a change of circumstance which has some bearing on what may or may not be in the best interests of the children.

[125] It is appropriate to touch also on the pursuer's religious upbringing. She was born to strongly Christian parents who are members of the Brethren. That is a branch of Christianity with very strong beliefs. The pursuer was raised in the Brethren but left when she was 18. She wanted to travel and to go to college both of which were difficult in the ways of the Brethren. She appears to have followed no formal religious practice until about 2010. She maintained that she remained a Christian and practised and prayed in her own private ways. She started to attend the Church of Scotland in Kinghorn when living separately from the defender (September 2010 to May 2011) then joined the church in Saline when she returned to the former matrimonial home. She attends church regularly and has been taking the children to church and Sunday school since early 2012. She says that the children enjoy Sunday school and have made friends there. She says that she prays at night in the house and sometimes "A"joins her by praying for people.

[126] Much of the evidence about the parties' relationship was not in dispute. They first met about 16 years ago when the pursuer went on holiday to Egypt. There was a holiday romance. The pursuer returned to Scotland and after a few months when they corresponded and communicated with each other they lost touch. The pursuer went to college then for a period lived in Germany where she entered a relationship. When that relationship ended she said that she came across a card from the defender and made contact with him. In about February 2001 she went to Egypt for about two weeks and the parties talked about their feelings and the relationship they might have. The pursuer returned to Germany having made up her mind that she was to go to Egypt and marry the defender. She told her parents of her intention. Her mother had already arranged a visit to see her in Germany and in the course of that visit discussed with her the potential problems or difficulties that might arise in a marriage between a Moslem and a non‑Moslem. She did not try to dissuade her from marrying and, indeed, went with her daughter to choose a wedding dress. The pursuer then returned to Egypt in about May 2001. The parties lived together for a short period in the defender's brother's flat but cohabitation was frowned upon so they decided quite quickly that they would marry. They were married on 8 August 2001.

[127] The parties are in dispute as to whether it was a civil or religious service. The marriage certificate (production 5.6.1) is in Arabic. Each party had a translation made and there are subtle differences. There does, however, seem to be reference to religion in the document. As I understand the evidence, as the pursuer was not of the Islamic faith the parties could not be married in a mosque so the ceremony which took place was probably the only way that they could have been married under Egyptian law. Sheikh Amer said that Egyptian Law was Islamic Law but he was not sure of the nature of the ceremony. Even if it was a civil ceremony as might be implied from the fact it took place in the notarization office, there are clear religious overtones as borne out in both versions of the translation of the marriage certificate. I have disregarded any possibility that they could have married in any other form of ceremony. What was said and done at the ceremony and the nature of discussions between the parties is the subject of dispute and I will return to that area.

[128] The parties lived in Egypt for nearly a year but the pursuer became homesick and they came to Scotland and initially lived with the pursuer's parents in Kinghorn. The length of their stay in Kinghorn was disputed but it seems to have been at least a year. During that period the parties were supported by the pursuer's parents and they worked and saved to get a house of their own. They bought 59 Upper Kinneddar, Saline and lived there together until about September 2010 when the pursuer moved out and went with the children to live with her parents. The parties through their solicitors resolved their financial issues and in May 2011 the house was transferred to the pursuer and she resumed occupation. To all intents and purposes while they were still living under the same roof, the parties were living completely separate lives from about January 2010.

[129] There are three children of the marriage, "A", and twins, "B" and "C". It is again not disputed that the pursuer has been and remains the primary carer for the children and the defender, since the separation, has enjoyed regular and reasonably extensive contact including residential contact. "A" attends Saline Primary School and the boys go to nursery with the intention of following their sister to that school. As I understand it, the school is a non‑denominational school which has a Christian background and there are assemblies where prayers can be said and there are celebrations of Christian feasts such as Christmas and Easter, some of which celebrations have taken place in the past in the local parish church which is Church of Scotland.

[130] There was evidence that "A" was taking part in a Nativity play in the school or nursery. The defender said he had no objection to this but felt that "A" was very uncomfortable. Dr Edward's view of this was that she was probably uncomfortable because she was aware of her father's attitude. There was other evidence that part of a Christmas festivity was to move from school or nursery to the local parish church and the defender objected very strongly to that. That does not in my mind sit particularly comfortably with the defender's stated position that he has no difficulty to the children's exposure to Christianity in a natural way in society such as at school. I think there must be a risk that the children would be marginalized by other children if they were not fully participating in school events.

[131] The defender's main position is that there was a status quo from before the marriage, namely that the children were to be brought up in the Muslim faith. He refers to a number of areas of evidence as support for that opposition. He says there were discussions between the parties before the marriage about the religious upbringing of any children. He provided her with books about Islam and an English translation of the Koran. The pursuer agrees there were discussions but denies there was any agreement about the upbringing of children. She says she was curious to learn about his religion and they had discussions and she asked many questions. It is almost impossible to say where the truth lies. The parties were living in Egypt and at that stage did not appear to have any intention of returning to Scotland. As I have said, if they had children in Egypt there is little doubt they would have been brought in the Muslim faith. The fact of the matter is that the children were born and are being raised in Scotland. The parties have separated and circumstances have changed. Even if there had been agreement between them at or just before marriage, when looking at the test of what is in the best interests of the children any such agreement would have to be subject to what was in their best interests at the present time. Circumstances change and there have been significant changes in this case.

[132] I accept the evidence from the defender and from Sheik Amer that any Muslim father has a religious obligation to bring his children in the Islamic faith. I also accept that this particular perspective of his faith is of great importance to the defender. What I am not clear about is whether is a situation such as we have here, namely separation between a Muslim father and a Christian mother, necessarily results in raising children in the Muslim faith to the exclusion of all else. In his evidence Sheik Amer seemed to make reference to situations where children were exposed to both religions and said that it could be managed depending on the level of co‑operation from the parents. That would seem to me to suggest that the raising as a Muslim may not be to the exclusion of all else. Once again there is potential conflict between the defender's obligation and the interests of the children. The two may not necessarily be the same.

[133] The next argument for the status quo is what happened at the marriage ceremony itself. I do not consider that it is particularly important whether the marriage is a civil or religious marriage. It is a marriage carried out in accordance with the law in Egypt with a certificate in Arabic issued under that law and held in what was described as a notarization hall. The defender says there was an official translator but the pursuer denies this. The pursuer says that she had to ask the defender to go over it all again and he admitted he did this. The pursuer described a chaotic situation, where the parties were very informally dressed in jeans and tee-shirts and she was very upset about what was going on around about her. The meaning of what is contained in the marriage certificate may well have been explained to the pursuer but in the context it is understandable that she did not fully appreciate what was being said. She said herself in evidence that it was like something of a holiday romance and she described her hope that it would always be idyllic.

[134] The marriage certificate does contain a statement to the effect that children will be brought up as Muslims. Once again had the parties remained in Egypt and the children been born there I have no doubt that it precisely what would have happened. But things have moved on: the parties moved to Scotland, the children were born here and live here in the primary care of the pursuer; the parties have separated; the children are at a school and a nursery school which have Christian backgrounds. What is in the best interests of the children is the paramount consideration, not what may or may not have been discussed before marriage or contained in the marriage certificate itself. I must look at the situation now, not what may or may not have been discussed or even agreed in 2001 years before any of the children were born.

[135] I accept that when each child was born the defender whispered in his or her ear the Call to Prayer. The pursuer was unaware of this. I am not sure if she was aware of the significance of that act. The defender makes a lot of praying with "A "while the parties were still living under the same roof. At that time "A" was, at most, three years old. It is clear from the evidence of Dr Edward if not from common sense that a child of that age will have little or no sense of religious identity. Even now at the ages of six and four it is doubtful if there is any deep rooted sense of religious identity. I accept that the children go to the mosque with the defender and may pray with him and read with him verses from the Koran and other holy books. That does not in itself instil a sense of religious identity. I agree with the views of Dr Edward on this matter.

[136] The defender argues that the names given to the children are Muslim religious names and that is significant in relation to the intention of the parties about their upbringing. The pursuer's position is that they are Arabic names with which she is happy and were not given for any religious reason. Given the position adopted by the parties I can readily see why each takes that view but I am not in a position to say that one or other is correct.

[137] The boys were circumcised at about six months and the consent forms states it was being done for religious reasons. I understand it to be a religious practice or requirement that Muslim boys are circumcised. The pursuer's position was that she had no objection to this happening given that it was always going to happen and she would prefer that it happened under controlled and hygienic conditions in Edinburgh rather than, for example, in Egypt. She did not regard it as being indicative of the boys being Muslim. The defender's position is that this is just another piece of evidence to show that all along both before and during the marriage, it was intended the children be brought up as Muslims. I have no doubt that the boys would have been circumcised at some time or other. There is a lack of evidence about medical ethics or conditions surrounding the act of circumcision of a child but I presume that unless it was being done for a medical reason doctors would not undertake such a procedure unless it was for some form of religious reason. I do not lay much significance on the fact that the boys were circumcised.

[138] If I might turn to look at the statutory basis and the few cases which were referred to by the parties, I have laid out above the terms of section 11(7) of the 1995 Act and I repeat here that the first overarching principle is that the welfare of the child is the court's paramount consideration. Assessment of a child's welfare is a matter of judgment to be based on all the relevant facts and circumstances. The second principle is that the court should not make an order unless it considers that the making of an order would be better for the child than making none at all.

[139] Wilkinson and Norrie, 2^nd Edition deals with religious or spiritual welfare from paragraphs 10.29 onwards. The cases referred to are in the main quite old and are not particularly helpful in the context of this case. A footnote does however point to the fact that courts in the 20th century have been "punctilious in refusing to weigh the merits of different forms of religion".

[140] The case of ML v IM, was a Sheriff Court case in Falkirk concerning the defender's claim for parental rights and contact to two daughters. The pursuer and mother was a Roman Catholic and the defender a Jehovah's Witness and the issues largely lay around possible conflict between these two religions. In his decision Sheriff McGowan at paragraph 102 states:

"It is relevant that the children are being brought up as Catholics; they are still of tender years; the parties (particularly the pursuer) are suspicious of each other's motives and actions around the issue of religion; and it is likely to be a source of conflict between the parties going forward."

The court decided on balance that no order should be made so the question of religion was left with the mother.

[141] In the case of McNaught v McNaught a Protestant wife raised an action against her Catholic husband for custody of two children. It had been a condition of a religious marriage that the pursuer had agreed in writing to bring up all children in the Roman Catholic faith. The children had been educated at Roman Catholic schools. The defender claimed custody of the younger child or alternatively an order that he be brought up in the Roman Catholic faith. Other than the question of religion the facts showed it to be in the best interests of the child to be in the pursuer's custody. It was held that the pursuer should be granted custody of the child and the defender failed to show sufficient grounds for the making of any order as to his religious upbringing.

[142] In the case of Re J in the Family Division at first instance the argument was about a specific issue order where a non-practicing Muslim father was seeking an order that his son, resident with a non‑practicing Christian mother, be brought up in the Muslim faith. In giving his decision at page 10 and by reference to the case of Haleem v Haleem 1975 5 FAM Law 184, Mr Justice Wall said:

"Making an order that both children reside with the their mother, the Court of Appeal took the view that whilst the father set great store by both children being brought up in the Muslim faith and culture, the court had to consider other factors where applying the welfare test, not least the fact that the children were going to live in England and attend English schools, and needed to be brought up together. The Court of Appeal also took the view that the children would have the opportunity to pick up Arabic and to absorb their father's outlook during periods of contact."

There are striking similarities with the present case.

[143] I drew the parties attention to the case of Re N (a child) in the High Court of Justice Family Division dated 24 August 2011. That case dealt with a Jehovah's Witness and Judge Belamy gave lengthy consideration to the aspect of religious upbringing which he described as "the most difficult aspect of this case". A number of issues were agreed between the Jehovah's Witness mother and the Christian but non‑Jehovah's Witness father, but there were issued which were not agreed and at paragraph 85 Judge Belamy said the following:

"Before considering the issues relating to religious upbringing that had not been agreed, I first set out the principles which, in my judgment should guide my approach:

1. Parental responsibility is joint and equal. Neither parent has a predominant right to choose a child's religious upbringing.

2. Where parents follow different religions and those religions are both socially acceptable, the child should have the opportunity to learn about and experience both religions.

3. A parent's right to enable her child to learn about and experience his or her religion is not an unconfined right. Where the practice of that religion involves a lifestyle which conflicts with the lifestyle of the other parent and the court is satisfied that the conflict has had or may in the future have an impact on the child's welfare the court is entitled to restrict the child's involvement in those practices.

4. Restrictions imposed for welfare reasons do not necessarily amount to a breach of that parent's right to follow the beliefs and practices of his or her religion provided that any restrictions imposed is justified by the findings made by the court and proportionate.

5. In determining such an issue, as in the determination of any other question relating to the upbringing of the child, the child's welfare is the courts paramount consideration."

[144] The judge goes on to describe the preaching of different aspects of religion including instruction and the giving of lessons. He points out difficulties that might occur for a child if one or both parents was instructing or giving lessons. The father sought an order that neither parent would prevent the child from taking part in school activities including Nativity plays. The mother was silent as far as these issues are concerned. The judge did not accept that participation in the kind of events referred to by the father would either undermine the child's understanding of or respect for the mother's beliefs or that it would in some way give the father some kind of advantage over the mother. "To deny N the opportunity to take part in such activities would be likely to mark him our as different from other children and could potentially cause him distress. " I consider that there is a serious risk that if the order sought by the defender was granted this is precisely what might happen to these children. That would clearly not be in their interests.

[145] If the defender's evidence is accepted the pursuer has all along been aware that any children they had were to be brought up as Muslims and she agreed to that. It was part of the marriage service. She had been warned about it by the British Consulate a matter of three days before the marriage. Even if all that is the case many things have changed. The parties only lived in Egypt for about one year after the marriage and have now lived in Scotland for approximately ten years. The children were born in Scotland and are being brought up in Scotland. They are attending, or in the case of the boys will shortly attend, a non‑denominational school in Saline. While the school is non‑denominational there is a Christian overlay such as celebration of major Christian festivals, such as Easter or Christmas. The children live with their mother who having had a strict Christian upbringing has recommenced attending the Church of Scotland and when she has the children at the weekend she takes them along to the beginning of the church service and thereafter they go to Sunday school. She is perfectly happy that the children pray with their father, go to the mosque with him, learn the Koran and eat a Halal diet. She herself is vegetarian and there is therefore no issue of her buying or preparing Halal meat products. She is content that all these things continue but not to the exclusion of everything else and in particular not to the exclusion of her own religious practice. She wishes to be able to take the children with her to church and Sunday school and clearly wishes them to be able to participate in school events such as Nativity plays without being placed under pressure or feeling uncomfortable.

[146] The defender is a devout practicing Moslem. The practice of his faith appears to have become stronger in recent years. As a Muslim and a father he has a religious duty to ensure that any children of his marriage are brought up in the Muslim faith. That duty appears to be absolute and the defender does not believe that there is room for compromise.

[147] The issue here therefore is what is in the best interests of the children? While the defender may have a religious obligation to raise children in the Islamic faith it is an obligation imposed on him. It does not seem to take account of what might be seen to be in the best interests of the children. Regardless of the religious obligation, if there is any conflict between that obligation and the interests of the children, then the interests of the children must prevail. The defender argues that if the order is not granted there is a likelihood that they will become confused. Whether or not they become confused will depend entirely on the attitude adopted by the two parents. The only expert witness we had, Dr Edward, makes that abundantly clear. She was also clear that not all confusion is necessarily detrimental or negative. She had the sense as do I that the pursuer was quite happy to encourage the children to learn about their father's religion. She equally had the sense as do I that the defender was not prepared to compromise. If he is not prepared to change his attitude then it will be no surprise if the children appear uncomfortable and possibly confused.

[148] Sheik Amir was asked about the issue of confusion and even he took the view that whether or not there was confusion would depend on how the matter was handled by the parents. Dr Edward said that there was often confusion in children's lives and that not all confusion was necessarily bad. She too said that how children reacted to confusion depended on how it was handled by the parents.

[149] In this case the children are living in a Christian household with a Christian mother. She is not by any means a hard line Christian and on the evidence does not in any way push Christianity at the children on a day to day basis. She says she is bringing them up conform to her Christian values (which are not radically different in many respects from Islamic values) and she does take them to church and Sunday school. They are at the school which has a Christian overlay because of participation in Christian events such as Christmas and Easter. If the children were not to be able to participate in these events or if they were to be made to feel uncomfortable participating in these events because of the views of their father, then I do feel that has potential to mark them out as different from the other children and could potentially cause them some distress at school. It may also cause them to ask questions of their mother, questions which she might not be able to answer if an order such as is sought by the defender was granted. There is nothing in my view in the way that the children will be brought up and educated in the care of the pursuer which should undermine the children's understanding of her respect for their father's beliefs. It is not a competition between religions. It is not a case of one being right and the other wrong. The day to day circumstances of the children should dictate what is in their best interests. I have therefore reached the conclusion that it is not in the best interests of the children that a specific issue order be made that they be brought up in the Muslim faith. I do however accept the undertakings given by the pursuer in relation to the children's participation in that faith when they are with their father. Equally I hope that the defender does not do as he said he might in his evidence if no order was granted and work harder to make sure that the children learn about Islam. Contact should be an all round enjoyable experience for children and not something which is dominated by any religion or religious practice.

[150] The parties entered a joint minute dealing with a number of issues but mainly contact and I have endeavoured to incorporate the terms of that joint minute into the decree. As both parties were in receipt of legal aid they asked that I make no order for expenses and I agree.

[151] In conclusion I would say this has not been an easy issue to decide. I would thank the agents for their presentation of what is a very sensitive issue. I was impressed by the sincerity of both parties when they gave evidence. I would, however, wish to emphasise to the parties that the best interests of children may well change over time. There is no doubt in my mind that each is a devoted parent. The children will grow up quickly and will doubtless have a healthy curiosity about many aspects of life. It is up to both parents to ensure that they are not made to feel that the children are somehow part of conflict between their parents thus leading to feelings such as discomfort, uncertainty or confusion. I would commend the views of Dr Edward to both parents.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> K.S. v. T.S. [2012] ScotSC 100 (01 November 2012) URL: http://www.bailii.org/scot/cases/ScotSC/2012/100.html Cite as: 2012 GWD 37-739, [2012] ScotSC 100, 2012 Fam LR 148

Scottish Sheriff Court Decisions