In this video, Dr Hassan Elhais discusses several important legal information relating to Child Abduction laws in the UAE. Dr and a few actual cases where such laws were applied in the UAE.
Transcript
Introduction
0:03
In my part, I will cover the abduction from outside of the UAE to the UAE.
0:07
Practically we saw many cases where we could
0:09
succeed in returning children who have been abducted to the UAE.
0:13
But there is no one solution to be handled in every case.
0:16
Since we have already three laws, the Federal Law for Muslims and we have for non-Muslims two laws.
Laws Governing Child Abduction in the UAE
0:23
One applied in the six emirates and one local law
0:26
for non-Muslims applies in the Emirates of Abu Dhabi.
0:31
Since the UAE is not part of the Hague Convention we will have to find
Legal Solutions and Case Scenarios
0:35
a solution under the applicable laws and apply the solution in each case:
0:41
So let's assume that we have a case where a child got abducted from out of the UAE to the UAE,
Case Scenario #1
0:47
and the mother could get a judgment or the father could get a judgment
0:50
to return the child back from the foreign country to the UAE.
0:54
The first question we have to ask ourself is 'Can we apply this order here (UAE) or not?'
0:58
And to apply the foreign order
1:00
we will have to consider if there's a treaty or not. (between the foreign country and the UAE)
1:04
If there's a treaty for the recognition of foreign judgments it will be much easier;
1:08
but as everyone knows we don't have a treaty with every single country in the world.
1:16
Sometimes, we cannot apply the foreign judgement due to the lack of a treaty.
1:21
Recently, the UAE accepted the recognition of
1:23
English court orders based on the equal treatment principle.
1:27
However, we don't have the same concept applied with all other countries.
1:31
And even if we'll apply the foreign judgments in the UAE,
1:34
we still have a lot of challenges which has to be considered.
1:39
Since the application of the foreign judgment is subject to
1:43
specific requirements which has to be fulfilled.
1:47
One of the requirements is that the UAE shall not have exclusive jurisdiction to deal with the case.
1:55
The other point which we have to make sure that exist – that the foreign court
2:00
has jurisdiction to deal with the case,
2:02
and the respondent has been notified in the
2:05
foreign courts and has been given enough chance to present himself,
2:08
and the judgment itself is a final judgement and this foreign
2:13
judgment did not contradict any local judgement issued by the local courts.
Case Scenario #2
2:18
The other option we might take is in case the child got abducted from
2:22
out of the UAE to the UAE and then before getting the child abducted,
2:28
the father or the mother signed an undertaking to return the child back.
2:31
In this case, even if there's a judgement from the
2:33
foreign court if it does not fulfil the requirement as per the local laws
2:38
then we cannot enforce the foreign judgement to return the child back.
2:41
So, we have to start from the beginning, we have to use the undertaking,
2:44
we have to apply for an order to return the child back to his home country.
2:51
Such order could be submitted by two options,
2:54
whether to apply it on urgent matter basis and the other option which we may try,
2:58
we may apply on substantive claim which might take quite a longer time,
3:03
using the undertaking to enforce the husband to execute what he promised to do.
Urgent Matter Court Application
3:08
In case the child got abducted in the UAE, one of the options
3:11
that we might approach the urgent matter courts
3:14
requesting from them to return the child back on urgent matter basis
3:18
since we have a potential risk on the child's safety or the child's welfare.
3:22
The judge here will have to check according to the evidence submitted;
3:28
do we have any urgency to take the case on urgent basis, number 1.
3:33
Number 2, if the urgency existed is it really a risk to affect the child's best interest?
3:40
and if the judge believes that there's urgency
3:42
and the child's best interest has been seriously affected,
3:45
then we may have a chance to get it, to get the decision and approval in returning back the child.
Case Scenario #3
3:50
In case the child got abducted but we don't have
3:52
a foreign judgment or we have it but we cannot enforce it,
3:56
and we don't have even an undertaking to be used against the husband,
3:59
in this case, we will have to file a new case to return the child back.
4:03
Usually, when we file the case we apply for custody court order and relocation of
4:08
the child back or returning the child back to the place where the child got abducted.
4:11
The first part is the easiest part - to get the custody judgment;
4:15
but the biggest challenge we face here is returning back the child,
4:19
because according to the laws applied for Muslims,
4:23
the father is the guardian and the child should be
4:25
with the father in the same country where the father is.
4:27
In such type of cases usually we might recommend the client to apply the foreign law.
Application of Foreign Laws
4:33
UAE laws give the parties the right to apply the foreign laws.
4:37
The law of place of concluding the marriage for
4:40
Muslims and the law of your home country if you're a non-Muslim.
4:45
However, applying the foreign law itself has challenges.
4:48
According to Article 24 of UAE civil law, you cannot apply the foreign law
4:49
if one of the parties has dual citizenship.
4:51
According to Article 24 of UAE civil law,
4:55
you cannot apply the foreign law if one of the parties has dual citizenship.
4:58
So this option might not work in such a scenario.
5:01
We have under the new law the concept of joint custody.
Concept of Joint Custody
5:04
Joint physical and legal custody and if we apply this concept in new cases,
5:09
we may argue since now the mother has the right to maintain the child with her as
5:15
half custodian and half guardian or legal custodian I would say.
5:18
Since she has the right to be with the
5:20
child in the same country with equal rights like the father,
5:24
we may in similar scenarios in the future apply the new
5:27
law without the need to apply the foreign law,
5:30
and using the new law to get the child back on the basis of equal rights between parties,
5:34
and on the basis that one of the parties decide to breach the obligations under the existing law,
5:39
and took the child from the primary address to the
5:41
UAE without the consent of the other joint physical and legal custodian.
Originally published on 22 May 2024
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.