UAE: Parent cannot take child abroad without partner’s consent amid custody battle

Consent of both parents is mandatory when either decides to take the child to another country. Failure to do so may be considered parental abduction and can lead to legal consequences including criminal charges and potential loss of custody right, legal experts have said.

A lawyer referred to a custody battle that unfolded in an Ontario court, where a Dubai-based father sought the return of his two children, aged 5 and 8, who had been taken to Canada by their mother on the pretext of a family visit.

The legal action was initiated after the mother informed the father that she intended to keep the children in Ontario, refusing to bring them back to Dubai. This prompted the father to seek an order from the Ontario court for their return. In her counterclaim, the mother alleged that her children would face serious harm if they were removed from her custody.

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The father’s legal team, led by Emirati family lawyer Diana Hamade, argued that the UAE had adequate laws in place to protect the children’s best interests, emphasising that the Ontario court should defer to UAE jurisdiction in matters of custody. Ultimately, the Ontario judge ruled in favour of the father, stating that the children should return to Dubai, allowing the local courts to adjudicate the custody issues.

Hamade said: “When a child is removed without the consent of a parent, the left-behind parent must file a complaint in the jurisdiction where the child has been taken to seek a return order.”

Hamade also emphasised the importance of establishing the child’s habitual residence as the location they were living before the removal. “The court must also effectively address all aspects related to the child’s security, safety, and well-being,” Hamade told Khaleej Times.

Protection of child’s best interests

Hamade highlighted that custody cases often require expert testimony, particularly on matters related to the child’s habitual residence. “In a custody case filed in England, for instance, if the child is a habitual resident in the UAE, the judge will examine expert testimony to highlight how UAE custody laws protect the child's best interests and provide parents with the necessary rights to co-parent effectively,” she noted.

In family cases involving children, courts typically consider the emotional and psychological impacts of separation on young children. Relocation can have profound emotional effects; therefore, Hamade advises parents to thoroughly document concerns regarding potential harm. “Parents must establish the child's habitual residence and address all aspects related to the child's safety and well-being,” she stated.

Whether it’s the emotional, psychological, educational, or financial impact, this documentation can be presented in court, where judges prioritise the child’s best interests above all else.

Legal recourse

The case highlighted above is not an isolated one. As reported by Khaleej Times in September, a toddler, who was flown to the UK by his mother without the father’s consent, was brought back to Dubai after a court order. The UK high court recognised Dubai as the boy’s “habitual residence” and upheld the father’s right to have his child brought back to the UAE.

Samara Iqbal, managing partner at Aramas International Lawyers, warned: “Unlawfully taking a child can lead to severe legal consequences, including criminal charges and the potential loss of custody rights.”

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