How the UAE’s Recent Personal Status Laws Provide a Legal Framework That Prioritises the Best Interests of Children in Relocation Cases

In the UAE, family matters are governed by personal status laws. Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law governs the family matters of Muslims in the UAE. On the other hand, Federal Decree Law No 41 of 2022 on Civil Personal Status governs the family matters of non-Muslims in the country, except in the emirate of Abu Dhabi. Within the emirate of Abu Dhabi, the family matters of non-Muslims are governed by Abu Dhabi Law No 14 of 2021 (the “Abu Dhabi Civil Personal Status Law”).

UAE child custody laws

Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law and the civil personal status laws under Federal Decree Law No 41 of 2022 on Civil Personal Status and the Abu Dhabi Civil Personal Status Law contain distinct laws governing the custody and affairs of children following the divorce of their parents. The Sharia-based Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law provides for custody and guardianship of children. Under Article 112 of this law, the mother of the children is generally granted custody of the children, which entails the day-to-day care and responsibilities for the children such as food, clothing, health and well-being. Consequently, she has physical custody of the children. The father, on the other hand, is granted guardianship over the children. This includes the overall supervision of the affairs of the children. The father also has financial responsibility for the children, which includes providing for their food, clothing, shelter, education, healthcare, etc.

Under Article 123 of Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law, the mother will have custody of the children until they reach the age of 18 ‒ regardless of the gender of the children ‒ unless she is disqualified from exercising the right as per the prescribed law. Nevertheless, Article 122 of Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law grants children the right to choose between their parents upon reaching the age of 15, provided that the court does not decide that such choice is against the best interests of the children.

Article 10 of Federal Decree Law No 41 of 2022 on Civil Personal Status and Article 9 of the Abu Dhabi Civil Personal Status Law allow for joint custody of the children following the divorce of their parents. Thus, both the father and the mother have an equal and joint right over the children. Children are considered to have a right to not live under the control of a single parent, so as to conserve their psychological health and to limit the effects of divorce on them. Article 4(4) of the Federal Decree Law No 41 of 2022 on Civil Personal Status allows for joint custody until the children reach 18 years of age, whereupon they may choose between the parents. Article 16(4) of the Abu Dhabi Civil Personal Status Law allows joint custody of children until the children are 16 years of age ‒ after which, they may choose between the two parents.

Under both civil personal status laws, either parent may voluntarily give up their custody right over the children. Parents may also be disqualified from custodianship owing to incompetence as prescribed by law.

Non-custodial parents are granted visitation rights under Article 121 of Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law, Article 23 of Cabinet Decision No 122/2023 on the Implementation of Federal Decree Law No 41 of 2022 on Civil Personal Status, and Article 34 of Abu Dhabi Decision No 8/2022 on the Approval of the Regulation of Civil Marriage and Divorce Procedures in the Emirate of Abu Dhabi. If the custodian parent denies the other parent their right to visit the children, the court may intervene at the request of the aggrieved parent to enforce this right, as well as to provide a schedule for visitation as per the best interests of the children.

Parental consent and child relocation

A parent may wish to relocate with their children either temporarily or on a permanent basis. In each case, consent of the other parent is key while making such decisions, given that UAE law underscores the importance of the involvement of both parents in the affairs of their children as provided under Article 112 of Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law, Article 10(1) of Federal Decree Law No 41 of 2022 on Civil Personal Status and Article 9(1) of the Abu Dhabi Civil Personal Status Law. If the other parent does not consent to the relocation of the children, the relocating parent may approach the court for a decision.

Permanent relocation

As per UAE law, a parent must not relocate the children without the written consent of the other parent. Previously, a father could file a relocation petition to the court if the mother refused to give consent for relocation. A mother could object to the relocation on the ground that it could cause harm to her. Until now, such application could only be filed by the father. However, under the new UAE personal status law (ie, the Federal Decree Law No 41 Of 2024 on the Issuance of the Personal Status Law), the sole right of the father to apply for permission to relocate has been removed. This has opened the doors for relocation applications by both parents, as currently the Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law, the Federal Decree Law No 41 of 2022 on Civil Personal Status, and the Abu Dhabi Civil Personal Status Law neither prohibit nor organise relocation claims from either of the parents.

Key points considered by UAE courts when deciding whether to permit relocation

When adjudicating relocation matters, the court will consider the financial and psychological circumstances of the parent seeking relocation, as well as taking into account the child’s best interests. The court will also consider other reasons such as:

• employment opportunities in the new country;
• the relocating parent having immigration issues due to which they are no longer legally permitted to reside in the original country; and
• the relocating parent’s desire to live closer to family.

A parent may object to the other parent’s request to relocate the child on the grounds that such a decision could be detrimental to the child or might not be in the child’s best interests.

Imposition of travel ban

Both parents have the right to impose a travel ban on the child to prevent the child travelling outside the UAE. This is explicitly provided under Article 22 of Cabinet Decision No 122/2023 on the Implementation of Federal Decree Law No 41 of 2022 on Civil Personal Status and Article 38 of Abu Dhabi Decision No 8/2022 on the Approval of the Regulation of Civil Marriage and Divorce Procedures in the Emirate of Abu Dhabi. If either parent is apprehensive that the other party may flee the UAE with the child, without said parent’s consent, they may submit an urgent travel ban application to the UAE courts.

Once such a ban is in effect, if a parent wishes to travel outside the UAE with the child, then they may approach the court requesting that the court allow the child to travel with them.

Short-term travel

Consent is essential when it comes to short-term travel with children. UAE law ‒ under Article 116 of the Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law, Article 21 of Cabinet Decision No 122/2023 on the Implementation of Federal Decree Law No 41 of 2022 on Civil Personal Status, and Article 37 of Abu Dhabi Decision No 8/2022 on the Approval of the Regulation of Civil Marriage and Divorce Procedures in the Emirate of Abu Dhabi ‒ allows travel with children after obtaining the written consent of the other parent. If the parents are unable to reach an agreement regarding travel or its duration, they may seek an order from the court. Article 116 of Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law grants both parents the right to travel alone with their children on one or more occasions per year, provided that the total travel period does not exceed 60 days for either parent. This period may be extended if the travel is in the best interests of the children, for medical treatment, or for an urgent need.

Custody of travel documents

Article 117 of Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law allows the father ‒ as guardian of the children ‒ to retain the passport of the children, except when they are travelling with the mother (ie, the custodian), where he is required to hand over the passport to her. If the father refuses to hand over the passport, the mother may ask the court to order that the passport be handed over to her.

Similarly, the mother ‒ as custodian ‒ has the right to hold the identity documents of the children. However, under Article 124 of Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law, the court may order her to hand over the documents to the father if she attempts to misuse them.

Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law has imposed penalties in the event of non-compliance with the laws by either parent. If individuals refuse ‒ without justification ‒ to hand over official documents as ordered or if they misuse the document that is in their custody, they may be subjected to fines and/or imprisonment, as per Article 251 or Article 252 respectively. Furthermore, under Article 252, similar penalties may be imposed if a parent transports a child out of the country without the consent of the other parent or the court.

Article 15 of Federal Decree Law No 41 of 2022 on Civil Personal Status and Article 18 of the Abu Dhabi Civil Personal Status Law state that, if the civil personal status laws do not cover certain provisions, the provisions of Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law will apply. Thus, although the civil personal status laws do not provide for penalties, the above-mentioned penalties may apply to instances of non-compliance by parties subject to the civil personal status laws.

Parental settlement agreements

If a parent wishes to relocate with a child to the UAE and obtains the necessary consent from the other parent, both parents may enter into a settlement agreement to outline the terms and conditions governing such relocation. In the UAE, such an agreement may be ratified with the help of the UAE courts. The parents may enter into the agreement before a UAE court or execute the agreement online to ensure that the agreement is signed before the child travels to the UAE. This agreement is equivalent to a judgment rendered by a local court.

To ratify the parental settlement agreement, the parties may approach the family guidance department situated within the family court premises. The agreement may mirror an already-existing court order issued by a foreign court or may contain new terms and conditions as agreed between the parties. Once executed as prescribed, this agreement may be regarded as a court order with the enforcement power of a court decision. Thus, the agreement may be invoked by either party in the event of a breach of the terms of the agreement.

Either party has the right to submit an application to the family guidance department, requesting to execute a parental settlement agreement, provided that at least one of the parties involved is a resident of the UAE.

Enforcement of foreign relocation orders in the UAE

The UAE is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Consequently, UAE courts apply their own local laws to determine cases involving non-consensual international child relocation. When a foreign order is submitted before a UAE court, seeking to restitute parental rights and return the child to the custodial parent, the UAE court will apply the UAE Civil Procedure Code under Federal Decree Law No 42 of 2022 Promulgating the Civil Procedure Code to determine the matter. Article 222 of the UAE Civil Procedure Code states that judgments and orders delivered by a foreign country may be ordered to be enforced in the UAE.

The enforcement case is registered on the basis of a petition to the enforcement judge and the judge will issue their order within five days. Although such order can be appealed, doing so will not automatically suspend the execution of the order unless the court authorises such suspension. Before issuing the order, the court must verify:

• whether the UAE courts had exclusive jurisdiction over the dispute at hand;
• whether the foreign judgment was delivered according to the law of the country where it was issued and whether the judgement was duly ratified;
• whether both parties to the dispute were summoned and duly represented;
• whether the foreign judgment placed before the UAE court is a final decision; and 
• whether the judgment is in conflict with any order issued by the state court and whether the judgement is against UAE public policy.

Additionally, the enforcement judge may request additional supporting documents before issuing their verdict. The law also states that these provisions must not prejudice the stipulations of treaties and agreements that the UAE has established with other countries regarding the implementation of foreign judgments.

Parental child abduction

Parental child abduction occurs when a parent removes the child from the other parent or retains the child without the consent of the other parent. This may occur when a parent relocates with the child to the UAE from a different country or when a parent relocates to another country from the UAE.

Relocation to the UAE from a different country

When a parent abducts the child from a different country and travels to the UAE, the other parent may submit a request for the UAE courts to order the return of the child, based on an existing treaty between the UAE and that country, in line with the UAE Civil Procedure Code. Any judgment issued by foreign courts can be enforced in the UAE, subject to prerequisites of the aforementioned provisions of the UAE Civil Procedure Code.

However, if there are no existing treaties between the UAE and that country, the other parent can file a new application for relocation. In this scenario, the court will ascertain which parent has custody over the child, whether there is an existing and valid foreign judgment seeking to return the child, whether the child was abducted, and ‒ most importantly ‒ the best interests of the child.

If the parent has a foreign court order regarding the custody of the child, then they may approach the court for recognition of that order, provided that it satisfies the requirement laid out in Article 222 of the UAE Civil Procedure Code and the acceptance of such foreign court order is subject to the approval of the UAE courts.

If the parent brought the child to the UAE after giving an undertaking that the child would be returned, and the parent has then refused to return the child, then the other parent may file a petition for enforcement of the undertaking.

If the mother has suffered harm and the child is within the custody age, she may request an urgent court order to deliver the child back to her. The courts usually examine the best interests of the child in custody matters and, as such, decisions on such urgent applications may vary from case to case.

If the prejudiced parent has a court order stating that she has custody of the child, she may file a criminal complaint for child abduction pursuant to the court order. However, the acceptance of such application is subject to the discretion of the criminal court and the prosecution. Moreover, the prejudiced parent may file a new custody petition in the UAE to get the child custody order and also request a temporary decision on custody until the dispute is settled.

Relocation from the UAE to a different country

When both parents are residents of the UAE and one of the parents abducts their child to a country outside the UAE, the remaining parent must first ensure that they obtain legal custody of the child. For this, the parent may file a petition before the UAE family court for custody of the child. Upon the declaration of the parent as custodian of the child, the parent may initiate the execution of the judgment.

They may also pursue a criminal complaint of kidnapping against the other parent as per Article 380 of the UAE Penal Code under Federal Decree Law No 31 of 2022 Promulgating the Crimes and Penalties Law. According to Article 380, if a parent or a grandparent kidnaps a child ‒ even if without fraud or coercion ‒ or refuses to return the child, that person is liable to be imprisoned or fined. Upon the filing of the criminal complaint, the parent is entitled to ask the public prosecutor to notify Interpol for an extradition request in accordance with Federal Law No 39/2006 on International Judicial Cooperation in Criminal Matters (the “Judicial Cooperation Law”).

The Judicial Cooperation Law regulates collaborations 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 communication 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 support 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. Consequently, the father filed this petition seeking the court’s approval for sole custody of the children under Federal 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 children’s affairs to ensure a decent, stable and secure life for them. Moreover, the mother’s unilateral decision to remove the children from the country ‒ without 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 outside 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 securing 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, Article 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 decision 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.

Summary

UAE law and UAE courts prioritise the best interests of a child when determining child relocation matters, regardless of whether the parties are subject to the civil personal status laws or the Sharia-based Federal Decree Law No 41 of 2024 on the Issuance of the Personal Status Law. UAE law also underscores the importance of the involvement of both parents in the lives of the children after a divorce. Consequently, a parent cannot unilaterally decide to relocate with a child, particularly if this would affect the other parent’s custody or visitation rights. UAE courts assess each case based on its facts and circumstances, ensuring that the child’s welfare takes precedence over other matters.