Lawyers' warning to UAE families facing child custody battles

Legal experts recommend court orders to prevent children being 'abducted'

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Parents in the UAE who are dealing with acrimonious custody battles have been warned about the risk of former spouses "abducting" their children over Christmas.

Senior lawyers in the Emirates said instances of partners taking children abroad on holiday and refusing to return home were relatively common.

In legal terms, cases of a parent going through a separation and ignoring requests to return to the UAE with their child is known as wrongful retention.

Experts said the scenario played out especially frequently over Christmas or the summer holidays, when children have a break from school –  "basically every time there's a school holiday", said Byron James, a partner with Expatriate Law in Dubai.

“It always follows the same pattern – people go away for a holiday with their children and don’t come back,” he said.

“Morally, they feel it’s not an abduction because they believe all they are doing is staying home.

"But legally, it is an abduction if the other parent has not consented to it – it's termed a wrongful retention."

DUBAI, UNITED ARAB EMIRATES. 19 DECEMBER 2019. For a story on parents taking travel bans to prevent ex spouses taking kids out of country. Byron James speaks about the legalities involved. (Photo: Antonie Robertson/The National) Journalist: Patrick Duncan. Section: National.

Mr James told The National he estimated there were hundreds of couples involved in custody battles in the UAE and Middle East each holiday.

He said many parents, especially mothers, felt helpless in preventing former spouses from dictating their children’s future.

In many cases, wives are living in the Emirates under their spouse's visa, with the husband the sole breadwinner in the household.

He said in some instances, applying to courts for a travel ban to prevent children from leaving the country without permission was a suitable step.

“Our clients have had disputes over which country the children should live in or if they should be allowed to go on holiday to a certain country,” Mr James said. “One problem with children travelling abroad is that parents might worry whether the children are going to be brought back by the other parent, which then leads to a parent objecting to any kind of international travel for the children.

“In some cases, a parent can feel trapped and powerless to speak out about not being able to get permission to take the children out of the country, whether temporarily or permanently.”

Mr James said his company had represented several clients over the past three months who had turned to English and Welsh courts for assistance.

He said if a parent wanted to prevent a spouse from taking a child out of the country they needed a Prohibited Steps ­Order.

If they wanted the right to take a child out of the UAE – whether temporarily or permanently – because consent was not being given by their spouse, then they could apply for a Specific Issue Order.

He also said that a parent wanting to make the application did not necessarily need to be from England or Wales.

His firm recently established that the parents of children who live abroad and who are in the process of obtaining a divorce in England or Wales can now apply for either of the two orders.

He said this was of great importance to anyone living outside of England or Wales with their children but who would prefer those courts to determine any welfare disputes arising between parents.

"It means that as well as having the option of applying in the court in Dubai, parents of English children can now more easily apply in England for a determination of a welfare dispute," Mr James said.

"Whether it is a mother looking to relocate permanently to England from Dubai or a father living in Dubai being denied access to his children, these parents are now more easily able to seek a remedy in the English courts if they wish to."

While English and Welsh courts do not have jurisdiction in Dubai, they can still make orders against a person and criminalise, under English law, the behaviour of someone in breach of an order.

This criminality is something most people would wish to avoid, even if they live in the UAE, as it has consequences for international travel and obtaining and maintaining employment around the world.

It also prohibits a return to the UK without the risk of being arrested and charged.

The National spoke to two mothers who had been involved in custody disputes with their former husbands in Dubai.

Sharon, 34, from England, said she had lived in Dubai for seven years but fled the country with her two children after suffering physical and mental abuse from her spouse.

“One time [when] he attacked me when we lived in Dubai I reported him to the police,” she said.

“The very next day I came home to find the children gone. He had gone back to his home in the UK.

“He left me without any money or credit cards and sent me a message saying if I apologised he would pay for a flight for me to join them.”

Morally, they feel it's not an abduction because they believe all they are doing is staying 'home'. But legally, it is an abduction

Sharon described feeling helpless as she, along with their two children, aged 6 and 3, were under her husband's sponsorship.

“He assaulted me again when we came back to Dubai and it just so happened I had a holiday booked back to the UK with the children shortly after that,” she said.

“I had saved up a little money after the first assault because I was afraid of what might happen and wanted to be ready.

“I was able to go to the court in England and get out a domestic violence injunction against him.

“He still didn’t pay maintenance for months.

“I was lucky the judge didn’t take his attempts to regain custody of them seriously.”

Another mother who was left feeling vulnerable during a divorce with her husband was Suzanne, 31, also from England.

The mother of two said when she discovered her spouse was seeing another woman in Dubai, she knew the marriage was doomed.

She felt trapped because she believed she could not mention her husband’s new relationship to a Dubai court, in case it led to his prosecution and subsequent loss of maintenance for her and the children.

This led her to look to the courts in her home country, where a relationship outside marriage is not illegal.

“When my husband told me he wanted to separate I had to completely follow his word because I didn’t work and we were completely reliant on him for maintenance,” she said.

“I needed to get his permission to travel abroad with the children and he made every decision about their welfare.

“He manipulated the perception of local law against me. He would say he would take the children away from me if I didn’t do what he told me.”

 Hassan Elhais, Senior Partner at Al Rowaad Advocates & Legal Consultants at his office in Dubai on Thursday March 31, 2016. Mr. Elhais was quoted by reporter Jenn Bell in a story about underage drinking in the UAE. ( Navin Khianey for The National) Assignment ID: 80053 *** Local Caption ***  nk3103-lawyer_elhais_05.jpg

Hassan Elhais, another UAE lawyer, said he understood why some residents felt it preferable to use courts in their home countries.

He said it was common for spouses involved in a divorce to seek orders known as travel bans, preventing children from being allowed to leave the country.

Unlike some countries, he said, the UAE did not offer joint custody to parents going through a separation.

But he argued that going through local courts should not be dismissed as an option, as UAE courts always rules in a child's best interest.

“The law currently states a boy should stay with his mother until the age of 11 and girl until they are 15,” he said.

“After that [age], if a father wants to leave the country he can request the mother to follow him with the children.

“However, if she objects to that it is up to the courts to decide. The courts here will always rule in the best interests of the child.”