Unlike legal concepts in UK, parents do not share equal parental responsibility for the child in UAE where the mother by default will become the ‘custodian’ of young children, and the father the ‘guardian’. Custody and guardianship of a child are two separate issues that must be addressed individually.
The Custodian has actual, physical custody of the child and must raise, take care, and bring up the child.
The Personal Status Law No. 28 of 2005, provides that the custodian must be:
- Rational;
- Mature enough and have attained the age of puberty;
- Honest;
- Able to bring up and take care of a child;
- Free from infectious disease;
- Not have been sentenced for a crime of ‘honour’ (e.g. killing a family member).
The custodian mother must be the same religion as the child and if she is not, her custody may be forfeited after divorce, unless a Judge finds that it would be in the best interest of the child to stay with the mother. A mother’s re-marriage is also a trigger for a transfer of a custody at any age to a father.
Following divorce, if the court finds the mother “incompetent” or unfit, custody can be awarded to the father, however, he must have a suitable female relative living in his home to care for the child and who must also share the same religion as the child.
In accordance with Article 149 of the Personal Status Law, the custodian may not take the child for travel outside the state without the written consent of the guardian. If the guardian does not approve, the matter shall be referred to the Judge. Therefore, in the absence of written consent, an application for permission to travel or for a travel ban will have to be submitted to the court. The court will look at the facts of the individual case and will direct the immigration authorities accordingly. If a travel ban is made in the mother’s favour and the father wishes to travel with the child, he must submit a written request to the court to remove the travel ban and permit the child to travel with him.
As a contrast, the guardian is a person who financially maintains the child, makes important decisions about the child’s education and upbringing, and generally takes care of the child’s affairs. Guardianship therefore involves supervising, protecting, educating and preparing a child for life, and agreeing to the child being married when necessary. There are set obligations on the guardian to guide the child in terms of morals, education and religion. One of the roles of the guardian entitles him to retain any children’s passports. Guardianship will be removed if the guardian has committed a serious office such as rape or disgracing conduct. It can also be removed if the guardian was sentenced to punishment for a crime that affects the well-being of the child, the guardian was sentenced to imprisonment, or if he subjected the child to excessive danger. When investigating such cases, the court may temporarily decide to hand over guardianship of a child to a specialised social organisation.
When the father of the children passes away, usually guardianship passes to the closest surviving male relative of the father. When a non-Muslim child resides in the UAE, in theory, the child’s law of nationality (unless it cannot be proven or interpreted and applied or is offensive to UAE Sharia/public morals) is mandated as the applicable law. When the law of nationality is not applied, or if the child is a Muslim, then he/she is subject to UAE Sharia law. This may result in the child’s paternal grandfather or uncle being appointed as the guardian and therefore having more rights over the child than the mother of the child, following the death of the father.
The UAE government has put a number of options in place for non-Muslim expats, to allow allocation of guardianship to be chosen by the parents – such as explicitly stating that in the event of the death of the father, the mother should become the guardian of the child rather than a male heir on the father’s side. Such options involve putting in place a valid Will and registering it through one of the registration platforms now available. More information on this issue can be obtained from our Wills department.
Federal Law No. 3 of 2016 concerning the rights of children (also known as Wadeema’s Law) was introduced to enforce that all children must be provided with appropriate living standards, access to health services, education, equal opportunities in essential services and facilities without any kind of discrimination. The law also protects children against negligence, exploitation, physical and psychological abuses and applies to all children up to the age of 18.
Further, the Ministry of Interiors Child Protection Centre was set up to undertake the role of developing, implementing processes that aim to provide safety, security and protection for all children living in the UAE and those coming as visitors.
It is mandatory for everyone connected to the child, be it a teacher, doctor, or family friend or neighbour, to report any signs of child abuse or neglect to the authorities. Any person who knows about the abuse is now legally bound to report it. The matter should be reported to medical experts and the police and witnesses provided, where available. Such matters like excessively disciplining a child ie hitting a child around the face or beating to cause bruises or marks, should be reported.
For further information or advice in relation to any matters concerning children, please contact our Family Department on Enquiries.
Head of Family Law / Senior Consultant