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The New Family Courts: Actors, Agendas, and Goals

It [family court] is about a different legislative and judicial philosophy that is implemented in separate premises, where it is quiet, friendly, and reassuring for families and children.

—Laila Takla, Mahakim al-usra: qadaya shaghalatni (Family Courts: Causes that Preoccupied Me), 2004.

In 2002, Laila Takla—a prominent Egyptian lawyer, academic, former politician, and public thinker—published the first edition of her book on family courts. In it, she laid out her vision and passionate arguments for establishing a specialized and unified court system that would handle all family disputes. Takla argued that such a court system was based on a philosophy that foregrounds the well-being of the children and family through participatory, collaborative, and mediation-centered legal processes. The publication of Takla’s book was part of her initiative to promote the establishment of specialized, mediation-based family courts in the country. Takla had also proposed the initiative earlier through a series of articles in the daily newspaper al-Ahram.¹

The Association for the Union of Egyptian Women Lawyers, the nongovernmental organization that Takla was directing, presented a proposal for the new family courts to the Committee for Recommendations at the parliament. Takla also lobbied the National Council for Childhood and Motherhood (NCCM)² and the National Council for Women (NCW),³ specifically the legislative committee of the latter. In 2001, the NCCM was the first governmental organization to take the lead in supporting the initiative. It organized a meeting where Takla presented her arguments for the new family courts. The meeting was organized for an audience of women’s rights activists, other civil society actors, judges, lawyers, legislators, and government officials. Another speaker in this meeting was the Australian senior judge of family courts Alyster Nicholson, who gave a presentation about the Australian model of family courts. As a result of this meeting, a joint committee was established to take the initiative further. The committee members were selected from the NCCM, the NCW, the Ministry of Justice, as well as the Association for the Union of Egyptian Women Lawyers. The committee consisted of two task forces that were entrusted with organizing further meetings to study the initiative from both social and legal perspectives and propose specific ideas for the new legislation and the requirements of the new courts system.

In addition, a number of influential public figures lent support to Takla in pushing the initiative forward by organizing a series of expert meetings and workshops. These figures included Mohamed Fathy Naguib, chief judge of the Supreme Constitutional Court (SCC); Adel Sadek, the well-known Egyptian psychiatrist; Abdel Aziz al-Guindi, the attorney general at the time; Judge Mahmoud Ghoneim from the Judiciary Unit at the SCC; as well as the prominent lawyer and women’s rights activist Mona Zulficar. The latter two were also members of the legislative committee at the NCW, which led the coordination and monitoring work during the period of drafting the new law and presenting it to the parliament.

On March 15, 2004, PSL No. 10 of the new family courts was published in the Official Gazette. That same year, Takla published the second edition of her book on family courts with a detailed commentary on the new law, as well as her critiques of public and legal opinions that perceived the new courts system simply as a mechanism of modernizing and making efficient the legal procedures in personal status cases, or as a legal tool of expanding and strengthening women’s rights (Takla 2004).

This chapter traces the efforts of the main actors who spearheaded the establishment of the new family courts. I examine the vision and goals of Laila Takla, the key figure who led this initiative.⁴ I also shed light on the goals and roles of other actors who adopted Takla’s initiative and pushed for the promulgation of PSL No. 10 such as the NCW, the NCCM, the Women’s Committee at the National Democratic Party (NDP), and prominent lawyers and women’s rights activists who worked closely with state actors to pursue legal reforms with the goal of strengthening and expanding women’s rights in the family domain. My aim is to shed light on the varied (and sometimes divergent) understandings and aims of the different actors who were involved in these efforts, as well as the rushed and top-down process through which the new law was codified, resulting in the establishment of a court system with challenges and contradictions. I draw on data collected from interviews with key actors who lobbied for or facilitated the establishment of the new family courts. The interviewees were, for example, members of the legislative committee at the NCW, the Women’s Committee at the NDP, prominent lawyers and judges, women scholars and politicians, and women’s rights activists.

Therapeutic and Problem-Solving Family Justice: A Global Trend

Laila Takla’s vision of family courts is situated in a global trend in the legal field toward mediation-based resolution of family disputes. The global movement to promote mediation as an alternative mechanism of dispute resolution dates to the 1970s (Liebmann 2000). In the subsequent four decades, mediation has played a role—in varying ways—in different legal systems in Europe, North America, Australia, and South Asia (particularly, India and Bangladesh). In Australia, for instance, mediation is widely promoted as a legal option that is provided by different private organizations. Moreover, state courts arrange ‘settlement weeks’ in which free mediation services are provided. Furthermore, Australia paved the way for specialized family courts with the establishment of its own mediation-based family courts in 1975. In the UK, mediation was voluntary and provided by private organizations in the 1970s, whereas in the 1980s the state, through its courts, also started to provide ‘conciliation’ services. While mediation is not mandatory in the UK, courts have the jurisdiction to obligate potential disputants to attend a compulsory mediation session. Also, British lawyers are required to tell their clients about the option of mediation. In Canada, mediation has also been made an available option, whereas in the USA it has become an integral part of the legal system (Shaffer 1988).

But it was in the 2000s that the paradigmatic shift to specialized and unified mediation-based family courts took center stage. Jane Singer, professor of law at the University of Maryland, lays out a number of premises on which this new paradigm is based (Singer 2009). One premise is that a participatory, mediation-based approach rather than an adversarial, litigation-centered one is suited for the resolution of family disputes because of the distinct nature of these disputes. This is because an adversarial approach tends to make disputants more contentious while parties in family disputes need to work together because of their family bonds, such as in the case of co-parenting a child. Another premise is that what underlies family disputes are not only legal factors but also social ones, and hence, the roles that family courts need to play in such disputes and the services they should provide are both social and legal. A third premise is that the role of judges in these family courts is multilayered, extending beyond adjudication to management of the conflict through collaborative and participatory mechanisms. And precisely because of the multidimensional roles and services of family courts, they need to be equipped with personnel who have expertise in social work and family counseling, in addition to family law (Singer 2009: 364–65).

Additionally, scholars such as Sanford Katz and David Rottman highlight the advantages of alternative dispute resolution (ADR) in family lawsuits. Rottman, for instance, points out that disputants are more likely to commit to decisions reached through participatory, mediation-based settlements (Rottman 2000). As for Katz, he lists several benefits for mediation such as: the informality and flexibility of this mechanism, which makes it unthreatening to disputing parties; its suitability for creating the space to address the emotional aspects of disputes; and lastly, its time and cost efficiency (Katz 1994: 53–54).

But the mediation-based court system has also been critiqued, particularly in regard to family disputes. According to Judge Gerald W. Hardcastle, the central problem with such courts is its underlying ideology of dispensing therapeutic, problem-solving justice. Hardcastle, who has served many years as a family court judge in Nevada, writes in a lengthy article that this new system, because of its focus on therapeutic, problem-solving mechanisms of dispute resolution, risks undermining the role and effectiveness of the court as a neutral and impartial legal institution (2005: 125). In addition, under this new paradigm, states take on a large role (through both the social and legal services that the family courts provide) in family governance, a role that Hardcastle sees as undermining the right of individuals and families to manage their own private affairs and intimate relationships. Judge Hardcastle also cautions that family courts, by taking on psychosocial as well as legal roles, are assuming tasks and functions that are better suited to be carried out by community-based organizations (2005: 122).

This latter critique has also been noted by Jane Singer (2009). Singer sees that despite the many advantages of the new specialized and mediation-based family court system, its underlying philosophy has gendered implications that can disadvantage women in particular. She contends that the notion of harmonious, intact families whose members will always have enduring ties even after the dissolution of marriage often works against women, for example in post-divorce arrangements. Singer notes that American post-divorce and co-parenting family court settlements are often premised on the notion that both ex-spouses will stay “deeply involved in each other’s lives” in their capacity as co-parents. But this assumption tends to privilege the non-residential parent (often the father) and disadvantages the residential parent (often the mother), such as in cases when the latter has opportunities to relocate for work or to pursue desirable life opportunities but is restricted in her ability to make that decision due to the co-parenting settlements (Singer 2009: 365–66).

As for mediation, the literature is somewhat divided on whether it works for or against female disputants. There are studies that argue that mediation is beneficial for female disputants because it saves time and effort, and provides these disputants with the space where they can negotiate creatively for a wider range of legal options that may not be available through a process of litigation structured by fixed codes (Coulson 1983; Fuller 1970; MacCabe 2001; Pearson and Thoennes 1984; Roberts 1983; Sander 1984; Silberman 1982).

Other scholars, however, have questioned whether or not mediation in family courts can overcome the gendered power imbalance that often exists between disputants (Bottomley 1984, 1985a, 1985b). Bottomley, for instance, warns that too much focus on the best interest of children and preservation of amicable family relations, which characterize many mediation practices and pro-mediation literature, leads to undermining the individual rights of female disputants. Bottomley and other critics also point out that alternative mechanisms of dispute resolution that may be perceived as beneficial to women—because of their informality, flexibility, and autonomy—may lack the procedural safeguards to ensure a transparent and just legal process, thus risking women’s loss of the guarantee of equality in front of the law (Bottomley 1985b; Shaffer 1988). There are critics who also found that mediation undermines women’s access to justice, but for a very different reason than previously mentioned. This reason is that mediation in some contexts is too regulated by abstract state laws and procedures, and thus fails to provide the space for female disputants to exercise agency in seeking justice (Abel 1982; O’Donovan 1985).

There is also a considerable body of literature that argues that mediation is particularly detrimental to female disputants in domestic violence cases. A common finding in this literature has been that women in such cases are hindered by the fear of abuse or violence and hence are unable to exercise agency in the mediation sessions (Field 2004; Lerman 1984; Strang and Braithwaite 2002). Some of the studies in this literature also cite particular patterns of familial relations and cultural/societal norms that may function as additional factors that lead women to be passive and deferring to the opinions and advice of others in mediation sessions, hence diminishing mediation as a mechanism of fair and just dispute resolution for women (Picket 1991; Weingarten and Douvan 1985).

In her ethnographic research on mediation-based family courts in Kolkata, India, Srimati Basu also questions whether this new system can facilitate tangible feminist legal reform (Basu 2012). Basu found that the mechanisms of family courts—in the absence of reform in the substantive laws regulating gender relations and rights, as well as in the context of dominant patriarchal cultural norms—could, in fact, undermine women’s pursuit of justice. For instance, the court-based mediators tend to understand ‘conciliation’ not simply as an alternative mode of dispute resolution (to adversarial, litigation-centered approach), but more as the reconciliation of the disputants and the salvaging of marriages. Basu also observed that some judges, again because of their problem-solving roles in these courts, restricted the space for female disputants to exercise agency in the process. Basu’s conclusion was that mediation and problem-oriented mechanisms of family dispute resolution in Indian family courts often reflected and reenforced dominant patriarchal gender norms, even in cases when mediators and judges sided with the female disputants. Basu’s larger point is that while mediation-based family courts may have some benefits for women—such as accessibility and affordability of the legal systems—it is important to be cognizant of the gendered limitations and limits of this legal reform.

Egyptian Family Courts: Pathways to Family Wellbeing, Gender Justice, and Modern State Governance?

It is within this larger global context of the growing but also contested popularity and desirability of specialized, mediation-based family courts that we need to understand Laila Takla’s initiative for the establishment of similar family courts in Egypt. Takla espoused this global model of therapeutic, problem-solving, family-oriented court system. Having done volunteer work as a young lawyer in Egyptian juvenile courts and having closely observed the court circuits for personal status cases, Takla believed that the model of family courts was the much-needed answer to tackle the problem of stressful, contentious, and family-adverse atmosphere and procedures in courtrooms (2004: 104). In fact, Takla begins her book on family courts with a dedication that reads, “To every Egyptian family, for whom family courts are established” (2004: 3). This dedication is a good introduction to Takla’s vision of the new family courts. Takla emphasizes that the establishment of family courts is neither a luxury nor is it simply about modernizing the legal system (2004: 9). Rather, the need for these new courts is based on an understanding that sees the well-being of the family as the central consideration guiding the legal processes in personal status cases. And because family disputes are of a distinct nature, according to Takla, state institutions’ involvement in the resolution of these disputes warrants the establishment of a specialized unified court system. The aim of this new system is first and foremost to resolve family disputes through non-litigation mechanisms, such as reconciliation and mediation, undertaken by well-trained court personnel. If alternative dispute resolution mechanisms fail, then the dispute proceeds to the litigation stage. In this stage, the role of the judge is not merely to adjudicate between disputants in a detached manner and simply grant claimants their legal rights. Rather, the judge is also to assume the role of a problem-solver who aims at resolving the dispute in a manner that protects the best interests of children and maintains healthy family relations as much as possible, regardless of the outcome of the lawsuit.

Takla stresses that the kind of justice provided by the new family courts system is one that “takes off its blinders to see the children and all the parties concerned, to hear what they say, and to feel what they feel” (2004: 11; my emphasis). Hence, it is necessary to have well-trained court personnel who are specialists in family affairs and who understand and espouse the philosophy of this legal system. The rationale for establishing specialized family courts, Takla argues, is not only to support women, but the whole family. This point is strongly made in Takla’s following quote: “family courts are not established for women, but for women and men, for the wife, the husband, the son, the brother, the children, and the relatives” (2004: 12). Takla sees that one of the important strengths of this new courts system is its participatory processes, which create space for disputants and court personnel to partake collectively in the resolution of the dispute. In short, Takla sees the new family courts system as one that provides therapeutic, problem-solving justice, and hence, a system that addresses not only the legal, but also the social aspects of the conflict.

While Takla viewed the new family courts as primarily a mechanism for delivering family-oriented justice, other influential advocates of the new courts system pursued this legal reform for different goals. These advocates were both individual actors and state institutions. The individual actors were a group of prominent women’s rights advocates who adopted the initiative of the new family courts as part of their larger goal of lobbying for a series of legal reforms to address the inequalities and challenges that women faced in the family domain. These advocates pursued their goal through their roles in state institutions. But these institutions also had their own goals for pushing for legal reforms such as the new family courts. For them, the new courts system was part of a state project aimed at realizing the goals of development and modern governance intertwined with state feminism,⁵ a project influenced in part by factors such as the country’s international standing and its commitments vis-à-vis international organizations, international conventions, and aid donors. These state institutions were the NCW, the NDP, and the NCCM.

Among these prominent women’s rights advocates were Mona Zulficar. Zulficar is a legal expert in investment banking law and the cofounder of and senior partner at the Shalakany Law Office. She served on numerous international committees working on gender and women’s rights. Since the late 1980s, Zulficar had been a key figure in a relatively loose coalition of women’s rights activists, academics, senior legal figures, government officials, and public thinkers who lobbied for a series of new personal status laws with the goal of addressing gender-based inequalities faced by women (Singerman 2005). The resultant reforms from these efforts were the new marriage contract, PSL No. 1 of 2000, PSL No. 10 of 2004, PSL No. 11 of 2004, and PSL No. 4 of 2005. Zulficar had also been a longtime key member of the NCW legislative committee.

The late Zeinab Radwan and Fawzeya Abdel-Sattar were two other prominent professional women who, like Zulficar, made use of their roles in the NCW (and the NDP) to lobby for gender-sensitive legal reforms. Radwan was professor of Islamic philosophy and former dean of the Faculty of Dar al-Ulum, Cairo University, Fayoum branch. She was also the deputy speaker of the parliament from 2005 to 2010, and served on the NCW executive and legislative committees. Radwan pursued her advocacy work both through her role as a member of the NDP Women’s Committee and her role as a scholar with expert knowledge in Islamic religious sciences. Radwan, in fact, played a key role in the NDP proposal for a comprehensive, gender-sensitive family law, which I will elaborate on in chapter 5.

Abdel-Sattar, professor of criminal law at Cairo University, directed the legislative committee in parliament from 1990 to 1995.⁶ She chaired the NCW legislative committee from 2000 to 2001. Like Radwan and Zulficar, she was also part of the coalition that lobbied for PSL No. 1 of 2000. Abdel-Sattar, furthermore, published a book titled al-Mar’a fi-l-tashri‘at al-masriya (The Woman in Egyptian Legislation), as part of an NCW initiative to advocate for legal reforms to address gender-based inequalities. The book examines women’s legal rights in different domains and highlights the existing gaps hindering gender equality (Abdel-Sattar 2000). Abdel-Sattar devotes a chapter in the book to the gender-based shortcomings in personal status laws and points out the connections among gender inequalities in different legal domains. Three updated editions of the book were published by the NCW, the latest being in 2005. In the third edition, the author also added explanations and comments on the new laws that were passed, including PSL No. 10.

In lobbying for the new laws that were introduced in the period from 2000 to 2005, Zulficar and her colleagues adopted a two-pronged reform strategy. One prong was to employ procedural reforms as a pathway to gradually and strategically addressing gender inequality and expanding women’s rights. The second prong was to pursue gender reforms through close work with relevant state institutions. Zulficar was the key figure in this circle of prominent women’s rights advocates who was closely involved in the lobbying for the new family courts. She took note of the idea of specialized, mediation-based family courts in the mid-1990s when she became informed about Takla’s writings and initiative at the Association for the Union of Egyptian Women Lawyers, an association of which she was also a member. During this time, Zulficar was already lobbying for PSL No. 1 through her role as the deputy convener of the legislative committee at the NCW.⁷ Zulficar believed that since women constituted the largest number of litigants in personal status cases and were often the more disadvantaged in the legal process, they would benefit greatly from the main features of the new courts system, namely: specialized judiciary, alternative mechanisms of dispute resolution, and mechanisms of enforcement of court judgments.⁸

The idea of reforming the court system as a necessary step in the pursuit of gender justice was also justified by the recorded experiences of female disputants, which highlighted the many gaps in the system hindering women from obtaining fair and quick resolutions in family disputes. In 1999, for instance, Nefertiti Tosson, a senior counselor at the National Center for Judicial Studies in the Ministry of Justice, undertook a study on women’s access to justice in five personal status courts over a three-month period. The study, which was under the auspices of the Alliance for Arab Women, was part of an initiative to gather evidence-based arguments for the legal reforms that were being proposed at the time. Tosson pointed out to me that before she undertook the study, she read the draft PSL No. 1 which the Ministry of Justice had prepared then in coordination with the NCW.⁹ Tosson and her team researched the procedural and substantive laws regulating divorce, maintenance, post-divorce compensation alimony (nafaqat al-mut‘a), and obedience awards. The study found numerous gaps that resulted in lengthy and unjust legal processes for female disputants. One of the main recommendations of the study was to establish a specialized and unified legal system that would handle all personal status cases.

In addition to Tosson’s study, an extensive body of international and national literature also found gaps in the previous court system that disadvantaged women. For example, the number of divorce cases that were being filed yearly was staggering. Some of the studies estimated it as half a million divorce cases per year (Hammond 2000; Shah 2000). Other sources estimated that a quarter million women resorted to court every year (Sakr and Hakim 2001; Tadros 2000), resulting in an enormous backlog of five million cases. The number of judges, furthermore, was insufficient. For example, in 1997, fourteen million lawsuits were filed but there were only four thousand judges to preside over all cases (Singerman 2005). These gaps as well as others had their adverse effects on women disputants in particular. For example, whereas a man could divorce his wife unilaterally and without the need for court permission, divorce cases initiated by women sometimes lasted several years during which female disputants’ lives and future plans were put on hold. Furthermore, court orders that obligated husbands to pay spousal and child maintenance were frequently hard to implement because of corrupt and poorly trained law enforcement authorities, as well as the lack of effective sanctions against husbands who failed to comply with court orders.

Thus, Zulficar and other members at the NCW legislative committee set out to work on PSL No. 10. Zulficar played a central role in the NCW committee work on the new family court law. She provided detailed comments and revisions to the draft law PSL No. 10, which the Ministry of Justice had prepared, working closely with other members of the committee such as Judge Mahmoud Ghoneim from the Judiciary Inspection Unit at the Supreme Constitutional Court. Zulficar also served on the joint committee, which was subsequently formed from the Ministry of Justice, the NCW, and the NCCM, to revise the draft law.

Zulficar shared with me a folder containing documents pertaining to her committee work. In the folder, she kept a record of the committee work on PSL No. 1, PSL No. 10, and PSL No. 11. The folder contained, among other things, several versions of the draft law for the new family courts showing its development. The folder also contained written comments and suggestions from the NCW committee members; comments and recommendations from the NCCM; and a report from the NDP. The NDP report argued that the social and economic challenges caused by lengthy court procedures and ineffective mechanisms of enforcement necessitate a series of legal reforms, one of which would be the establishment of a new courts system with alternative mechanisms for dispute resolution. The report also discussed the role that civil society and the ruling party could play in promoting the proposed legal reforms.¹⁰ Another document in the folder outlined briefly the NCW plan to work on a new initiative for a comprehensive family law that would address various gender-based inequalities in the existing laws such as unilateral repudiation, judicial divorce, polygamy, wifely obedience, and so on.¹¹ On the whole, the contents of the folder reflected the ways in which the various legal reforms that were being introduced or planned at the time were interconnected. The enclosed documents also reflected the close collaboration between the NCW and the NDP with regard to these various legal reforms.

The agenda driving the government’s advocacy for the new legal reforms, including the new family courts, was driven by multiple interrelated goals. The Egyptian state saw the reform of personal status laws as a means of modernizing the country, enhancing its development, and enabling state governance of the family (and thus of society). The state agenda was also driven by the goal of maintaining the support of international donors and the international community by navigating the country’s commitments toward international conventions pertaining to gender equality such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), while at the same time avoiding the opposition of the religious establishment and conservative sectors in Egyptian society. Scholars of Egyptian family laws such as Ron Shaham (1999) and Nadia Sonneveld (2012) noted, for example, the chronological proximity between various family law reforms since Sadat’s era and onward, and the holding of international conferences on women’s issues and rights. PSL No. 44 of 1979 was passed before the July 1980 United Nations World Conference on Women in Copenhagen. PSL No. 100 of 1985 was enacted before the UN Conference on Women in Nairobi that took place in the same year. The new marriage contract proposal was considered by the government after the International Conference on Population and Development in Cairo in 1994. And lastly, the latest legal reforms (that is, PSLs No. 1, No. 10, and No. 11) were passed before the United Nations World Conference on Women in 2005 and the 2005 World Summit. The influence of the international community in pushing through these legal reforms is also illustrated by the fact that PSL No. 10 of 2004 was drafted and promulgated in a little over a year and the new family courts began to operate in 2004, even before its central and distinct features could be implemented (separate and adequate premises, specialized judges, adequate training of judges and other court personnel, and so on).

The state discourse that linked the legal empowerment of women to the development of the country and its international standing was also reflected in the fact that the reform of personal status laws constituted a central component of the NCW’s five-year national strategy at that time (2005–2010). One key component in the strategy aimed at improving the implementation of PSLs Nos. 10, 1, and 11. Another component of the strategy aimed at lobbying for a new and comprehensive substantive personal status law that would revisit all aspects of marital and parental rights and obligations. The third component of the strategy focused on creating a societal environment that is conducive to the sound implementation of the new personal status laws through: carrying out awareness-raising campaigns, supporting efforts to appoint female judges in the new family courts and in the State Judiciary Council, and strengthening women’s scope for agency and autonomy by facilitating their acquisition of national identity cards and registering them to vote. The fourth component of the NCW strategy was aimed at eliminating discrimination against women in other state laws such as labor, social welfare, citizenship, and criminal cases. The fifth and last component of the strategy linked the aforementioned goals of the legal empowerment of women to the international arena and its global feminist agenda by aiming at removing the reservations that Egypt placed on CEDAW.

The understanding of the new family courts as part of a state project to modernize its institutions and improve their performance was also reiterated by a senior administrator at the NCW, Isis Mahmoud, who was the general coordinator of all committees at the NCW and the focal point between the council and the parliament. As part of her responsibilities, Mahmoud attended the meetings of the legislative committee at the time. She noted that the NCW first proposed the idea of establishing the new courts to the Shura Council in 1998 as part of the council’s national plan to modernize and develop the legal institutions and accordingly facilitate women’s access to justice (two goals that the council saw as interconnected).¹² Subsequently, the Shura Council included the call for the establishment of unified and specialized family courts in its 1998 report that outlined the gaps in personal status laws. Since 2002, the legislative committee at the NCW led the lobbying and advocacy efforts toward the establishment of new family courts. Furthermore, when the new courts began to function in 2004, the NCW established a special committee to monitor its work, led by Amal Ousman, a lawyer and former minister of social affairs and former speaker of parliament.

The new family courts were also a development goal that the government pursued with support from international donors. For example, the training of the judges and the mediators in the court settlement offices was administered by both the Ministry of Justice and the NCCM through a United States Agency for International Development (USAID) project called the Family Justice. This five-year project officially started in December 2006 and aimed at supporting the implementation of PSL No. 10 by training and developing the skills of court personnel, raising awareness about the new courts, and collaborating with NGOs to provide preventive support to families and children at risk. In the preparatory stage of the Family Justice Project, Zulficar and Takla conducted a series of one-day workshops for judges and other court personnel, to educate them about the new law. Also, under this project, a series of training workshops was organized by the National Center for Judicial Studies. Counselor Tosson, who had previously undertaken the study on the gaps in the procedural and substantive personal status laws, was assigned the responsibility of planning these training workshops. Tosson and her team organized three-day workshops for the judges, one-week workshops for the court-based settlement specialists and court experts who would be undertaking the mandatory pre-litigation and while-litigation mediation respectively, and one-week workshops for public prosecutors. These training sessions, which targeted courts nationwide, lasted six months.

Another goal underlying the state’s role in legislating the new family courts and other related legal reforms was connected to what Frances Hasso calls the “governmentalizing project.” In her book on family crisis and the state, Hasso argues that the processes of reforming family laws in the Middle East and North Africa (MENA) region have often been part of the state’s “governmentalizing project.” Hasso focuses on Egypt and the United Arab Emirates, and specifically on recent new laws tackling different types of legally and socially contested marriages. She explains how “legal rationalization” and reform in family laws became mechanisms by which the state managed the population and the society, through producing particular kinds of norms, relationships, and practices within the family (Hasso 2011: 168). I agree with Hasso, and see illustrations of such a governmentalizing project in the explanatory memorandum for PSL No. 10 as well as in the NDP report on the family courts, both of which were contained in Zulficar’s folder on the NCW legislative committee work. The explanatory memorandum of PSL No. 10 began with a paragraph about how the family was the foundation of society; how the pillars of a healthy family were religion, morality, and patriotism; and how the state had a role to protect “the true character” of the family.¹³ The NDP report began with emphasizing the obligation of the state to enable women to partake in the development of the country, which necessitated eliminating gender-based legal discrimination against women. The report also stressed the role of the new family courts in ensuring the “stability” of the Egyptian family. Then the report proceeded to outline the gaps in the previous court system that resulted in lengthy litigation periods, inefficient mechanisms to enforce court judgments for spousal and child maintenance, and men’s abuse of the right to unilateral repudiation and polygamy versus women’s difficult access to judicial divorce. The report noted that these legal shortcomings resulted in social and economic problems that were hindering good governance and the development of society—more families became entrenched in adversarial and prolonged legal conflicts, more family households became headed by women and live in abject poverty as husbands abandon their families and take new wives, and more children end up on the streets. The new family courts were presented as an important component of the solution to this problem as they would provide efficient and family-friendly mechanisms for solving family disputes. The report also noted that the NDP had a role to play in raising societal awareness of the significance of personal status issues and in monitoring the work of the new family courts.¹⁴

To sum up, one could say that the initiative of the new Egyptian family courts came about as the result of three agendas. One was that of the pioneer of the idea, Takla, who had a vision of establishing a therapeutic, problem-solving, family-friendly justice system based on a global model. The other agenda was that of a coalition of professional women who were pursuing (through a top-down, state-centered advocacy) gender reform in the family domain by lobbying for a series of new personal status laws. And thirdly, there was the agenda of state institutions, driven by the goals of development and governance. While these three agendas may have the shared goal of new family courts, their underlying priorities and understandings regarding the various functions of the new courts system were dissimilar in some significant aspects. The outcome was a written law that fell short of meeting some of the main goals of these different actors. In what follows, I will outline PSL No. 10, describing the main structure and features of the new courts system. I will highlight and reflect on some of the gaps in the written text of the law and how they pose challenges for the various agendas that pushed this legal initiative.

Personal Status Law No. 10: Text and Process

The Personal Status Law No. 10 has fifteen articles. The main features of the new family courts system can be described as follows: First, instead of the old system of dividing family law cases between ‘summary’ and ‘first instance’ courts, the new law stipulates that all cases are to be reviewed in ‘first instance’ family courts. Second, mediation is incorporated into the legal process. Before a disputant can file a lawsuit, he or she is obligated to file for a settlement. This means three settlement specialists, with training in law, psychology, and social work respectively, hold mediation sessions with the two disputants. This process, which is to be concluded within two weeks, takes place in settlement offices that are part of the courts system. Upon the consent of the two disputants, the mediation period can extend to two additional weeks if there is hope of reaching a settlement. If mediation fails, disputants can file a court case within a week. However, if settlement is reached and approved by the disputants, it is legally binding.

Each case is reviewed by a panel of three judges who are assisted by two experts trained in social work and psychology respectively. These experts, one of whom must be a woman, are obligated to attend court sessions, meet with disputants, and submit reports to the court. The role of the experts entails two functions: to provide another opportunity for mediation between the disputants and to submit reports to the judges with information about the dispute, the disputants, and the outcome of the court experts’ mediation efforts.

In addition, a prosecutor office is established in each family court. The role of the prosecutor is to attend all court sessions and to submit to the judges a memorandum of opinion on each case. The rationale is to provide another mechanism through which the adjudication process is improved. All disputes concerning each family are also compiled in a single court file so that the judges can be well-informed about interconnected disputes. Furthermore, special departments have been set up to enforce court judgments. Lastly, court sentences in the new system can only be appealed at the Court of Appeal and not at the Court of Cassation.¹⁵

But if we examine more closely the written text of the law, we find some gaps and contradictions, perhaps due to the divergent priorities and understandings of the main actors who lobbied for the new family courts. For example, Article 5 in PSL No. 10 instructs that in each court district, an office for the settlement of family disputes will be established and it will be staffed by three settlement specialists and a director of the office. Article 6 states that disputants are obligated to submit a petition for settlement to the office before they can file a lawsuit in front of the court, and are to meet with the settlement specialists who “after listening to them are to inform them about the different aspects of the dispute and its consequences should they continue with it and are to provide them with advice and guidance with the aim of settlement.” This article does not adequately explain the role of the settlement specialists. Does their giving “advice and guidance” also entail reconciliation efforts? Are they to provide counseling services? How do these functions relate to the goal of mediation and settlement? And which functions or goals constitute the primary role of the settlement specialists? Furthermore, Article 8 in the law legislates that whatever settlement is reached by both disputants with the assistance of the settlement office is binding, but it does not spell out how this settlement is to be implemented. This has led to many implementation problems, which I will discuss in chapter 2.

The ill-defined nature and authority of the settlement offices diverge from Takla’s vision of the alternative mechanisms of dispute resolution in the new courts system. Takla (2003b) envisioned the legal process in the new courts as consisting of three distinct stages: reconciliation, mediation, and litigation. In the first stage, efforts are made to reconcile the disputants. Takla proposed that these efforts be carried out by specialists in family relations, psychology, and family law. If reconciliation efforts fail, then in the second stage the disputants are assisted to reach a resolution to their dispute through a mediated settlement. Takla suggested that this role be carried out by the prosecutor. If mediation also fails, then the disputants resort to litigation, at which point the case is referred to the court, along with the reports of the specialists and mediators. The idea of a reconciliation stage, carried out by the specialists in social work and family counseling, is to create the space for guided healthy communication between the disputants with the aim of attending to the family bond, whereas the second stage (mediation) is about helping the two disputants resolve the conflict and claim their rights through a process mediated by court personnel with legal authority (that is, the prosecutor). In other words, for Takla, the distinction between the three stages, particularly between reconciliation and mediation, is important to ensure that the alternative mechanisms of dispute resolution are robust and can yield meaningful consequences.

In earlier drafts of the law prepared by the Ministry of Justice, there was a proposal that the prosecutor undertake the function of reconciliation. There was also a proposal in another early draft that a religious scholar assist the prosecutor with reconciling the disputants. These suggestions were rejected by the members of the NCW legislative committee (as illustrated in the drafts that Zulficar shared). In an article published in al-Ahram, Takla (2003b) also rejected the proposal that the prosecutor undertake the reconciliation. Takla argued that the prosecutor’s office, due to its inherent legal function, is not suited to reconcile between the disputants. It is in the subsequent stage when disputants need assistance in reaching a legally binding settlement that the prosecutor or a legal figure such as a retired judge can play a role. However, the final draft of the law did not distinguish between reconciliation and mediation; mediation (which was assumed to include efforts of reconciliation) was assigned to the settlement office. It is noteworthy that Takla’s emphasis on the distinction between reconciliation and mediation, a distinction that was absent from the written text as well as the work practices of settlement specialists (more on the latter point in chapter 2), was not motivated by any gender-based concerns. Rather, it was about ensuring that the multidimensional structures and roles of the new courts system function. But what about the position of women’s rights advocates? What were their expectations and concerns regarding the law? And were these aspirations and fears reflected in the written text of the law?

As mentioned earlier, Zulficar’s goal was to draft a law that would institutionalize a specialized, unified, and efficient legal system for personal status disputes—a system which she believed would benefit female disputants. Zulficar’s espousal of alternative dispute resolution mechanisms was thus based on the understanding that this feature was part of what made this kind of court system accessible, quick, and affordable. Unlike some of the women’s rights activists and organizations in the civil society, Zulficar believed that this mediation-based legal system would be beneficial to women and would address some of the gender-based inequalities in the family domain. She did not share the concern that there could be potential gender-based pitfalls in the structures and functions of the new courts system themselves that would impact women negatively. However, a few of the important women’s rights activists and some organizations that worked on the reform of family laws had concerns and reservations about the new law.¹⁶ For example, the director of a well-known women’s rights organization was concerned that the mandatory pre-litigation mediation would result in women being forced by settlement specialists to reconcile with their husbands, especially since the substantive personal status laws and the social norms continue to affirm hierarchical gender relations and unequal rights.¹⁷ Similar concerns were voiced by another prominent women’s rights activist who has a long experience in advocacy work on the reform of personal status laws.¹⁸ This latter interlocutor also pointed out that since disputants normally exhaust all possibilities of mediation through the family, the work of the settlement office was redundant and alien to Egyptian culture, and thus would probably result in either prolonging the legal process or coercing female disputants into reconciliation or unfair and undesired settlements. Similar concerns about how mediation could work against women were also voiced by the director of another well-known women’s rights organization, as well as a prominent women’s rights activist and journalist.¹⁹ In addition, a common concern of these women’s rights activists was that the focus on the family, as highlighted by Takla and which was reiterated in the explanatory memorandum for PSL No. 10, would encourage settlement specialists to pressure women to reconcile with their husbands. This concern was validated by the prevalent perception often reflected in print media that the primary role of the settlement offices is to work toward the reconciliation of the disputants and the salvaging of marriages.²⁰