Father loses appeal over daughter’s Islamic marriage

A father who supported his 16-year-old daughter’s Islamic marriage here to a 29-year-old man against her wishes has lost his Supreme Court appeal over being jailed for a year due to contempt of court orders not to facilitate her later departure to Egypt.

In early 2012, just months after the High Court annulled the girl’s 2010 marriage on grounds she lacked capacity to give full, free and informed consent to it, the girl – who lived here from a young age – travelled with her mother to Egypt where it was believed an arranged marriage would take place. At the last court hearing she attended in late 2011, the girl, in interim care of the HSE from March 2011 arising from concerns for her safety and about a forced marriage, said she wanted to be at home with her parents.

They swore on the Quran they would not do anything to harm her. A senior Garda testified he believed her return home would put her at risk. The High Court said it had no jurisdiction to make orders against her express wishes not to remain in residential care. A further hearing was scheduled for early 2012 but the court was told the girl had gone to Egypt. Alarmed by that and a voicemail from her saying she wished to stay in Egypt and did not want her parents to be in trouble, it warned the father to take steps to procure her return.

When she did not return, her father was jailed in late 2013 for a year for contempt and served that time. He accepted he disobeyed the court’s order by also travelling to Egypt himself but did not accept he had any part in his daughter fleeing the jurisdiction and said there was little he could do to secure her return.

‘Incapable of being believed’

He appealed to the Supreme Court over the contempt findings but a three-judge court this week rejected his appeal. Mr Justice William McKechnie, giving the unanimous judgment, said the High Court was justified in finding the father breached a March 2011 order forbidding him assisting, encouraging or agreeing with any other person to remove his daughter from the State.

The High Court was also justified in finding as “incapable of being believed” the man’s evidence he returned from work on January 4th, 2012, to find his wife and children had gone, went to bed unconcerned and got a phone call the next day to say they were in Egypt. “In short, he facilitated her departure to Egypt.” The father also significantly breached the order in failing to assist with securing his daughter’s return, he held. It is clear the parents had “quite a serious degree of control and influence over their daughter”.

The High Court was justified in its conclusions and, on a civil contempt application, had the power to make the orders it had, he held. He also dismissed an appeal by the man subject of the annulled marriage against a High Court refusal to grant him costs of the nullity proceedings against the HSE. There was no basis to interfere with the discretion on costs for reasons including the man opposed a declaration of nullity “at every possible stage” until psychiatric evidence was adduced, he said.

Earlier, he noted, when annulling the marriage, the High Court had said the parents did not appear to share the same aspirations for the same life for their daughter as she wished for herself, to stay in Ireland and train for a particular career. It had concluded the approach of the parents and the man was influenced by “a perception of marriage which failed to recognise the concept of equality between men and women guaranteed under the Constitution”. It also considered the girl’s autonomous rights had been ignored and her parents had not acted in her best interests.

Alerted to concerns

From the evidence, the girl appeared not to have realised the ceremony she underwent aged 16 in 2010 at an Islamic Foundation on South Circular Road, Dublin, was a marriage ceremony, said Mr Justice McKechnie. Before the marriage, social workers were alerted to concerns she was being coerced by her parents into marriage. She had only met the man a few times casually, there was no suggestion of any formal engagement and she had made clear she did not want to marry him.

While a marriage in which either spouse is aged under 18 is, under the Family Law Act 1995, not legally valid, the marriage was legally valid as a result of a successful pre-marriage application by the girl and the man to a circuit court for a relevant exemption under section 33 of that Act, he also noted.