MON 20 - 5 - 2019
 
Date: Jan 21, 2019
Source: The Daily Star
Lebanon: Religious courts, international law clash in custody case
Victoria Yan| The Daily Star
BEIRUT: On May 15, 2015, Jolly Bimbachi hugged her sons Omar and Abdel-Ghaniy goodbye as they prepared to leave Canada with their father, Bimbachi’s then-husband Ali Ahmad, for a vacation to Lebanon.

The couple, both Lebanese, (though Bimbachi was raised in Canada) had planned on selling their house in Tripoli. Ahmad’s mother was also sick at the time, giving him and his children an additional reason to make the trip.

“I’m an extremely protective mother and it was the first time I was going to be away from my children,” Bimbachi recalled.

At the time, Omar was 6, and Abdel-Ghaniy, 5.

“I was sad to see them go, and I remember just before leaving, Ali kissed me on my forehead and told me, ‘we will be back before you know it.’”

After sending them off, Bimbachi, who stayed behind in Canada to work, returned home to her eldest daughter Rayenne (from another marriage) and carried on with her daily life.

But several days into the trip, her uncle from Tripoli called with some unsettling news.

Rumors had floated in the family that Ahmad was planning on staying in Lebanon with the boys, intending to miss their flight back.

“It was so strange to me,” Bimbachi told. “We weren’t having any [marital] issues, we weren’t fighting. It didn’t seem right.”

For the mother, the rumors felt unsubstantiated, but after confronting her husband over the phone, he admitted they were true - Ahmad intended to stay in Lebanon and keep the boys with him.

What ensued after has been a complex and at times perilous international fight over the children’s custody and relocation. Neither of the boys, now 9 and 8, have returned to Canada. After Bimbachi reported the situation to the Canadian authorities, the children were identified as legally abducted under international law.

However, because Bimbachi and Ahmad had a religious marriage in Lebanon, local jurisdiction does not recognize any criminal activity as having taken place. According to religious courts, the father has the right to take the children where he pleases.

For Ahmad, it makes no sense that people would say he abducted his children.

“I don’t care what people say [about me]. A kidnapper hides - he wouldn’t be in the public. People know where I am, where my children are,” he told The Daily Star over the phone.

While Ahmad did not clarify why he decided to take the children out of Canada, he said that he had been “ashamed” of his relationship with Bimbachi as the two are first cousins. Bimbachi confirmed this to be true.

Lebanon is not a party of the Hague Convention on the Civil Aspects of International Child Abduction. Although Lebanon has ratified the U.N. Convention on the Rights of the Child that calls for the “best interest” of children, in practice the country has not strictly followed it.

Melynda Bou Aoun and Nadine Allam, associate lawyers at Baroudi & Associates law firm, confirmed that even if Lebanon was a part of the Hague Convention, it is unlikely that it would wield much power in Bimbachi’s case, in view of the dominance and competence of religious courts.

“First of all, religious law in Lebanon surpasses civil law. The fact that they had a religious ceremony means that all issues related to personal status including divorce, custody ... are dealt with in a religious court, which usually favors men,” Bou Aoun told The Daily Star.

The lawyer added that legal framework foresees conflicting solutions to issues associated with child custody. “In our law, it actually does say that international law takes precedence, but when a religious court is involved, the [latter] usually prevails.”

In 2016, Bimbachi, who had minimal communication with both sons, took drastic measures.

She and a Canadian friend, Sean Moore, came to Lebanon and smuggled the children through Syria to the Canadian Embassy in Turkey. Moore, who had previously been on humanitarian missions in the region, was reportedly arrested in Iraq and is no longer allowed in the country.

“Ali has put [Omar and Abdel-Ghaniy’s] names in the registry, which would prevent them from leaving [Lebanon]. Plus, I didn’t know where he had put their Canadian passports,” Bimbachi said.

Upon their arrival in Lebanon, Moore and Bimbachi reached out to smugglers who took the children and two adults into war-torn Syria.

But Bimbachi’s plans were foiled when they were intercepted by militant group Hay’at Tahrir al-Sham in Qalaat al-Madiq, northeast of Hama. The militant group formerly affiliated with Al-Qaeda, sent both Omar and Abdel-Ghaniy to Lebanon to rejoin their father, and Bimbachi and Moore to Turkey.

“It was a terrifying time. We could hear everything happening - bombs, shooting,” Bimbachi said.

The incident led her to believe that perhaps her ex-husband had contacts within HTS, whom he had called upon to return their children.

Ahmad said he sought the help of a cousin in Lebanon who was able to secure their return. He also criticized Bimbachi’s choice to smuggle them through Syria.

“She is a criminal, not me,” Ahmad said. “She brought our children to Syria, even though Syrians themselves are fleeing the country.”

Bimbachi, however, said she has no regrets.

“I had not seen them for months and didn’t know what was happening to them in Lebanon.”

Since the episode in Syria, Bimbachi has worked solely within Lebanon and Canada’s legal frameworks. She has obtained a Canadian court order proving her custody, as well as an Interpol order demanding Ahmad’s arrest and the children’s return. She has also officially divorced her husband in Lebanon.

According to Antoine Aouad, a lawyer with Fayad & Associates representing Bimbachi in Lebanon, they have everything they need to call upon local security to intervene, which they plan on executing soon.

But this final move is easier said than done.

“It’s Lebanon,” Aouad said. “Depending on Ahmad’s connections, it can be easy for him to find out when security might be coming to apprehend him. Things also take time, but legally speaking, we have everything we need to return the children to Canada.”

Aouad noted that cases of international “abduction” weren’t new in Lebanon or around the world. Currently, he’s working on three cases in which a Lebanese parent or their spouse has taken a child overseas, calling it a “trend.”

“Parents need to understand the repercussions and consequences of leaving the country with their children without informing their spouse. It becomes a huge issue involving embassies, consulates and foreign ministries,” Aouad said.

Philip Hannan, a spokesperson for the Canadian Embassy in Lebanon, said they were aware of Bimbachi’s case and others like that of her family.

“Our thoughts are with the families during this difficult time,” Hannan replied via email.

“Canadian consular officials are in direct contact with the families and are providing consular assistance. Due to the provisions of Canada’s Privacy Act, no further information can be disclosed.”

According to the U.S. State Department’s 2018 annual report on international child abduction, 17 separate cases have opened since 2016 involving an American child taken to Lebanon without the approval of both parents.

Facing a high number of such cases, Australia signed a bilateral treaty with Lebanon in 2009 to “promote cooperation between [the] two states to ensure the protection of the welfare of children.”

Allam and Bou Aoun noted however that the treaty still had little power under religious courts.

One woman facing the same situation spoke to The Daily Star, asking for anonymity due to pending updates on her case.

She stressed the need for the Lebanese state to take more action, and not serve as a “haven” protecting parental “abductors.”

“What I want people to understand, what I want the state of Lebanon to understand, is that is cruel to have children separated from their mothers,” the woman said. “The state needs to do better in order for kids to reunite with their parents.”

Allam warned that given the legal situation in Lebanon, partners should think twice before agreeing to a religious marriage.

“If they agree to it, then they are subject to it, even after divorce.” - Additional reporting by Aya Fares

A version of this article appeared in the print edition of The Daily Star on January 19, 2019, on page 3.


 
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