Written by Dr. Hassan Elhais Through this article, I will highlight three important points to be considered by either spouse, if the other spouse has abducted the child from another country to the UAE without proper authorization and consent. Children are always caught up in these despicable events. Nevertheless, such situations can be prevented by taking calculative legal steps within the UAE.
Custody and guardianship are distinguished concepts under the UAE Federal Law No. 28 of 2005 regarding Personal Status, which applies to the Muslim population of the UAE. On the other hand, under the newly enacted Federal Decree-Law No. 41 of 2022 which applies to non-Muslims in the UAE, custody and guardianship have not been differentiated, and the parents are required to contribute on an equal basis towards the upbringing of the child. Non-Muslims can also apply the law of their home country if they wish to do so, for their matters.
Regardless of UAE Family Laws, UAE has promulgated several rules and regulations concerning child abduction and ways to return the child to the rightful custodian.
Even though UAE is not a signatory to Hague Convention 1980 Concerning International Child Abduction and to Uniform Child Custody and Enforcement Act, the country has entered into various bilateral treaties for prioritizing the welfare of a child in cases of child abduction. Nevertheless, UAE courts generally tend to follow their laws to adjudicate such matters. More or less, child abduction cases are taken into consideration as custody cases; however, if proven that the parent has abducted the child, he or she may face criminal punishments.
Henceforth, below are the three important points which need to be considered, if you face an issue of international child abduction:
The first and foremost step is to engage a family lawyer in UAE who can legally represent you before all relevant authorities and courts to obtain custody of your child or to ensure his safe return to his home country.
The second step to prevent child abduction is to file a case for custody within UAE family courts under the applicable personal law, post obtaining a divorce decree either from UAE courts or from another country. According to the personal law for Muslims, mothers are the natural custodian of the child age 13 years for a girl and 11 years for a boy, and this age may be extended by the court if it is in the child’s best interests. However, custody can be challenged by the father on the grounds of incompetent behaviour and second marriage.
On the contrary, non-Muslim mothers can apply either their home country's law as long as it does not conflict with the UAE local Law, or apply the provisions of the non-Muslim federal law. According to the non-Muslim civil personal status law, custody by default is 50-50 for the parents but can be challenged by one of them on grounds of ineligibility, danger or failure to meet the child’s best interests. Custody may also be waived by either spouse.
In a third scenario, if the father of the child is Muslim and the mother is non-Muslim, the custody of the child will be transferred to the father, due to the same religion as that of the child.
If there is fear of the abduction of the child by your spouse, you may request the court for a travel ban to be imposed on the child. Either parent may request the judge to rescind the order of travel ban, upon submitting a guarantee of a child's safe return. The court has the discretionary power to apply travel restrictions based on the merits of the case and the child's best interest.
Legal Update:
The above information might not apply if both parties are non-muslim. Starting from the 1st of February 2023, UAE issued specific family law to be applied between non-muslim expatriate residents in case none of them wanted to apply his/her home country's law in the UAE. To know more information about this law, please feel free to click this link.
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