Is blood thicker than borders?

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Who will forget the striking image of terrified six-year-old Elian Gonzales caught in the sights of the automatic weapon of an American Immigration Department official in the early hours of Saturday 22 April?

This sensational story of the Cuban boy whose mother drowned attempting to escape with him to the United States, whose father wants him returned to Havana, and whose US relatives refused to hand him over, has cast him in the lead role in a real-life soap opera unfolding before the world's cameras.

In the US, Attorney General Janet Reno gave priority to a father's request for his child to be returned to him over an American non-parent's refusal to send him back to a life under communism and Castro. But how would this case have played out in an English court?

As the colours of our rainbow society blend into one another, judges are being asked almost daily to decide where children should live and with whom. Tug-of-love cases like Elian's are usually considered as a matter of custody and care rather than immigration. Whether the child or parent is English should be largely irrelevant.

But it is not always the case, as Hasan Keranovic knows only too well. Eight years ago, his granddaughter Edita was smuggled into Britain and adopted under false pretences. Today she is no nearer being restored to her blood family. Edita's story began in May 1992, when at the height of their campaign against Bosnia's Muslims and Catholics, Serb forces attacked the hamlet of Hrustova.

Few villagers survived the ensuing massacre. Miraculously however, Edita, then only seven months old, was plucked out, injured but alive, from beneath a pile of bodies that included her mother, brother, and grandmother. After spending time in hospital and an orphanage, in November 1992 she arrived in London on a flight from Slovenia with an elderly couple, Alan and Deborah Fowler. They baptised Muslim Edita, initiated adoption proceedings, concealing the fact that some of her family were still alive.

It was not until 1995 when a US television team visited the Keranovic's at their new home in Switzerland that her family learned of Edita's whereabouts. They began proceedings to have her returned. But in 1997 Sir Stephen Brown, the then president of the Family Division of the High Court, ruled that Edita had been with the Fowlers too long to face the trauma of another dislocation. Despite acknowledging that her adoptive parents had misled the authorities on over 20 separate counts, Sir Stephen awarded custody to the Fowlers.

Almost eight years on, Hasan is no closer to getting custody of Edita despite Sir Stephen's judgment that she be re-integrated over time with her birth family. He feels helpless in the face of a legal system he believes has been an accessory to ethnic cleansing. "Britain is protecting kidnappers. I wonder what the British government would do if it was a British child who had been smuggled into Bosnia, adopted by people who lied to the court, and the authorities then decided that the child should stay with them."

Osama Daneshyar, counsel for Hasan Keranovic, believes that racial and religious prejudice underlie the court's rulings. "This is the most disgusting and upsetting case I have ever had to work on. I got the impression that deep down there was this prejudice that to bring up Edita in an English culture would be more beneficial for her."

Edita's ordeal continues despite a general presumption in English law that the best interests of a child lie in the child's home country, unless of course, the political and legal conditions there fail to allow for that. The court must act in a way best suited to serve the welfare of the child and to do so it retains a discretion to investigate the merits of which country the child should live and with whom.

Also of vital importance is the question of who the child will stay with. In the absence of natural parents, in English courts there is a strong supposition that members of the child's extended family are preferable to outsiders.

Edita's is not the only case to reveal how these guiding principles are often ignored. Last year, 39-year-old Azmi Jibeili failed to persuade the Court of Appeal to overturn on order preventing him from taking his daughter to Israel. The decision marked the end of a seven-year legal battle which the Palestinian father believes exposes the double standards of British justice.

In 1995, three years after the breakdown of his marriage, Mr Jibeili made an application to the Family court to be allowed more contact time with his daughter so that he could introduce her to his religion and culture. Refusing the application, Judge Simon Goldstein said: "Spending time with a child is all about fun and McDonald's, not jamming her throat with Arabic text books and the holy book."

Again, a complaint by Mr Jibeili to the Lord Chancellor proved futile. In his response, Lord Irvine of Lairg appeared to justify Judge Goldstein's comments. "The judge tells me that the purpose of contact he had in mind was so that you could re-introduce yourself to your daughter, then still under three years old, to have some quality, fun time, with her, rather than to take her to religious education, which he believes could come later. He assures me his remarks were in no way racist." An attempt to win a retrial also failed with Lady Butler-Sloss, the new head of the Family Division saying she could "see why" Judge Goldstein "had made that point".

Mr Jibeili has been declined permission to take his daughter to Israel to see her dying grandfather. "It's outrageous. Basically what they are saying is that I am a kidnap threat," he says. "And by extension every foreigner in this country is a potential kidnapper unless he proves otherwise."

The decision appears harsher still when you consider that Israel is a signatory to the Hague Convention. This means that should Mr Jibeili abduct his daughter the Israeli authorities would be bound to return her to British jurisdiction.

Where judges choose to apply it, the Hague Convention is a useful legal instrument. If a child has been abducted and brought to England from a country bound by the convention, for example Hungary or South Africa, a court must decide whether there has been a defined abduction and whether return will expose the child to physical or psychological harm.

However, where the child has been removed from a non-convention country, for example Cuba, the "welfare of the child" is paramount. If Elian Gonzales were British, English courts would have to weigh up whether his natural parents were able to provide an adequate quality and standard of parenting.

Even if they could not provide the security a western family might, how well could they meet the child's physical and emotional needs? How far would any potential loss of culture and contact with the natural parent impact on the child? And how would his father being stigmatised in Cuba by his wife's escape attempt affect his chances in life?

With all these factors to consider the court cannot make anything but a subjective adjudication. There is input from interested parties; the child, the child's family, interested carers and independent professionals. In Elian's case US officials have simply weighed the merits of him living with a natural parent in Cuba against those of staying with a close American relative in the Cuban district of Miami.

Whatever one thinks about the rights and wrongs of the case we have at least been able to access the evidence for ourselves.

That is more than can be said for the cases that come before the British courts. Here restraining orders and injunctions, which serve as much to shield judges from criticism as they protect children from the public glare, prevent custody disputes becoming television dramas.