UAE Trends and Developments Contributed by: Hassan Elhais, Awatif Mohammad Shoqi Advocates & Legal Consultancy
The Judicial Cooperation Law regulates collabora - tions between the UAE and other countries with regard to criminal matters in the absence of a bilateral or multilateral treaty with a foreign country. Article 33 of the Judicial Cooperation Law authorises the public prosecutor to ask the relevant authorities to request that foreign countries extradite a person if the person is sentenced to a minimum of six months in prison or accused of crimes penalised by a minimum of a one-year imprisonment. According to Article 34 of the Judicial Cooperation Law, in urgent circumstances, the public prosecutor or their delegate is required to inform the relevant authorities in the requesting state of the judicial arrest warrant issued pursuant to the conditions decided by law to arrest and temporarily detain the requested person; the arrest warrant will be communicated via the Ministry of Interior’s com - munication section. UAE case law pertaining to parental child abduction To better understand the application of UAE law with regard to child custody and parental child abduction, it is worth looking into recent cases that dealt with the non-consensual relocation of children. Case 1 – father granted custody of children after the mother relocates with the children without the father’s consent In a case before the Dubai court of first instance, a father sought sole custody of his children. As per the facts of the case, the couple was divorced in a prior case whereby the wife received custody of their two children (aged 17 and nine) – along with child sup - port and corresponding maintenance charges – and the father was appointed as the children’s guardian. Subsequent to the divorce order, the mother abducted the children and travelled outside the UAE. Conse - quently, the father filed this petition seeking the court’s approval for sole custody of the children under Feder - al Decree Law No 41 of 2022 on Civil Personal Status. The court ruled that it was duly satisfied by the father’s competence as a guardian, stating that he is an adult, rational, mature, reliable, able to fulfil the obligations of guardianship, and competent in managing his chil - dren’s affairs to ensure a decent, stable and secure life for them. Moreover, the mother’s unilateral deci -
sion to remove the children from the country – with - out the father’s approval or awareness – has infringed upon his rights and responsibilities, contravening the children’s best interests and thereby establishing her ineligibility for custody. The court indicated that, considering the recent developments in the case, the prior custody order was liable to be overturned. As a result, the court awarded the father sole custody and guardianship of the children in accordance with the Federal Decree Law No 41 of 2022 on Civil Personal Status. The court ordered the mother to surrender the children’s passport and other documents to the father. Case 2 – mother retains custody of the children after she relocates with minor daughter A mother travelled with her five-year-old daughter out - side the UAE without the prior knowledge or consent of the father. The child’s father commenced divorce proceedings in accordance with Federal Decree Law No 41 of 2022 on Civil Personal Status. Upon secur - ing the divorce, he petitioned for sole custody and guardianship of the child. He also requested that the court order the mother to hand over the passport and other relevant documents belonging to their daughter. The court stated that, pursuant to Federal Decree Law No 41 of 2022 on Civil Personal Status, divorce results in joint and equal custody of children. Moreover, Arti - cle 18 of Cabinet Decision No 122/2023 defines the conditions under which a parent may be excluded from shared custody of a child. The father’s petition for exclusive custody of the child was based on the mother’s international travel with the child, undertaken without his prior approval. However, this reason does not constitute grounds for disqualification of a parent from joint custody. Moreover, taking into consideration the child’s gender and minor age, the court ruled to reject the father’s request for sole custody. The father appealed the decision before the court of appeal. However, the court of appeal upheld the deci - sion of the court of first instance. The appellate court also added that sole custody could not be granted to the father because there was no competent female to look after the young daughter.
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