For divorcing or already divorced parents who are expats in UAE, disputes involving custody of children, relocation or travel with children are not straightforward.
By Michael Rowlands.
Unlike in many other countries there is no possibility of enforcing English Court Orders concerning children in UAE.
The decision to relocate is a big one. If you intend to take children with you and their other natural parent will remain in England, you will need the agreement of that parent or permission of an English Court.
The process can be expensive and take up to one year. There is no certainty of success. Safeguarding will be required, possibly an enforceable agreement but only if the children are legitimate, it is understood. It is also difficult to find examples of how problems connected to these agreements and judgments are resolved by local Courts.
Parents travelling with their children experience no difficulties. However, where children of separated parents travel, for example to visit their father in UAE, it is not straightforward. An English Court recently rejected the possibility of such a visit as it was concerned about the lack of safeguards for their return.
Decisions made by local Courts are always made in the best interests of the children, which usually means that minor children will live with their mother. Remember, however, that, in UAE, children stop being minors at an earlier age (approximately 11 for boys and 13 for girls) than in the UK. When the children reach maturity custody will then revert to the father if he applies for it.
Unlike in the UK, children’s wishes and feelings are not taken into account by the local Courts until they reach an ‘age of discretion’. Fathers’ views have a strong weight, particularly if they are Muslim and the mother is not. A local Court may be asked to apply foreign law, however making it happen is apparently quite difficult.
It is worth mentioning that illegitimate children have no status in the UAE, meaning disputes regarding parenting cannot be taken to a local Court. In theory the parents of illegitimate children can face arrest (sex out of marriage is a sin punishable under the Penal Code) and deportation.
UAE is not a signatory to the international treaty, the Hague Convention on Child Abduction. If a child is taken to UAE by a parent without consent it may be hard, or impossible, to have them returned. This also applies to children being taken from the UAE to England (perhaps a mother returning to obtain jurisdiction for divorce).
In theory international arrest warrants exist as a deterrent and possible means of achieving the children’s return. However the unauthorised movement of children raises problems that obviously should be avoided.
Any parent concerned about access and custody as a result of a separation from their partner should be well advised in local law.
The author is Michael Rowlands, family law partner at Kingsley Napley LLP and a member of the firm’s International Families practice.
See also the related article ‘Divorce In Dubai Or England – What Are Your Options?’