UAE: Parent cannot take child abroad without partners consent amid custody battle
If one parent wishes to take the child to a different country for whatever reasons, the consent of the other parent is also required. Failing to do so may amount to parental abduction from joint consent and can lead to the most severe legal ramifications such as being imprisoned and even losing the right to have any custody of the child, as warned by legal practitioners and experts.
In this connection, a lawyer cited an example from the Ontario court, where a father based in Dubai was trying to get back his children who were 5 and 8 who were taken to Canada by the mother on the pretext of a family visit.
When this started to solidify, the mother told the father that she wished to leave the children in Ontario and not return them to Dubai. As a result of his filing, the father sought a clean order for the children’s return. In her defence, the mother stated that removing the children from her custody would result in them suffering serious injury.
The father’s team of lawyers, under the leadership of the Emirati family lawyer Diana Hamade argued that the UAE was able to show all legal measures in order to care for the welfare of the children and that the Ontario court has to respect the UAE court on all custody issues. In the end, however, the judge in Ontario sided with the father, saying that the children must go back to Dubai where the local courts will settle the custody issues.
Hamade said: “If a child abduction is committed by the other parent and the child is taken forcibly, the left behind parent is compelled to pursue a claim in the area or country where the child has been taken for the purpose of obtaining a return order.
Hamade further noted the necessity of specifying the child’s customary place of residence with the place where he or she resided prior to removal: “Here the court shall also in general deals effectively with all issues relative to protection, safety and wellbeing concerning the child.”
Protection of child’s best interests
As Hamade pointed out, matters of custody are difficult as they often call for expert opinions specifically around the issue of where the child is domiciled. For instance, she posited, ‘Let’s say a custody case was filed in England and the child is a habitual resident in the UAE, the parents will be required to provide expert witness evidence demonstrating how the best interest of the child and circumstantial co-parenting laws in the UAE are viable.’
In such family law cases, with the focus on the children, the courts in such family law cases, focus on the social and emotional trauma caused by the absence of a young child from their parent or legal guardian. The relocation might have emotional geographies therefore, Hamade recommends that parents be very careful to record all concerns about risks caused by the relocation. “Parents must define the habitual residence of the child and deal with all issues regarding the child’s security and other welfare issues,” she said.
This information can be adduced in court, and the judges’ primary consideration is the welfare of the child regardless of the emotional, psychological, educational, or even the financial implications.
Legal recourse
The case exemplified above is not an exceptionally rare one. Just recently in September, a child who was taken from his father by his mother and later brought back to Dubai after the court had ruled so. The father had been given permission by the UK high court to bring his child back to the United Arab Emirates together with other parents, as the child was regarded as a “habitual resident” of Dubai.
As per Samara Iqbal, who also happens to be the managing partner of Aramas International Lawyers, any parent who behaves this way and forgoes the legal procedure opens themselves to great legal liability, including dealing with the police and losing access to the child: “The unlawful taking of a child comes with huge ramifications, it is a crime and one may lose custody rights on top of being charged”.
Oftentimes there may be proper legal channels that the left behind parent can use to their benefit. Iqbal outlined this when she stated that; "If a child has been removed illegally then that child’s parents must alert the authorities and su lawyers in the UN courts to prevent exportation of the child".
She also reminded practitioners that if the child is already overseas it is imperative to remit to the UAE Ministry of Foreign Affairs, so that the practitioners can make sound engagements with foreign representatives.
Reforms in custody laws
Dubai also observed a broadening scope of laws of custody disputes especially for expatriates which makes the system more flexible when considering global custodial arrangements. The new non-Muslim personal status act which was launched in Abu Dhabi ,has a provision which is more flexible for expatriates in family law cases. “The new law facilitates the joint custody provisions and ensures that a child’s best interest is given priority like in the international convention,” Iqbal said.
“It would not be a surprise if we witness UAE family law tweaked in several aspects to globally attractive yet persevering local customs because UAE continues to transform into a global expat center,” she further said.
Comments