Arabian nightmares... Image

Arabian nightmares...

Posted: 26/02/2016

The United Arab Emirates (UAE) is a country of superlatives. In which other country do the police force drive around in a fleet of Lamborghinis, Ferraris and Bentleys? The good life on offer in the UAE is undeniably a strong lure for expatriates to the extent that local Emiratis are outnumbered 11 to one.

But a recent decision of the English Court of Appeal may take some of the shine off the expat dream, highlighting an uncomfortable issue which could affect unmarried parents when one parent wishes to relocate to the UAE and take the children with them.

In Re B [2015] EWCA Civ 1302, a mother and father who had never married became caught up in a highly litigious dispute about the mother’s wish to relocate to Abu Dhabi with their two daughters to live with her new husband. Following the breakdown of the parents’ relationship, the children had spent almost half of their time in their father’s care and he was a genuinely “hands on” father involved in all aspects of his children’s lives.

The initial expert advice given to the court indicated that, despite the fact that the father had never been married to the mother, in the event of difficulties with contact between the father and the girls after the move, the father would be able to enforce his rights of contact with them through the courts in the UAE if the need arose.

As many may be aware, it is a criminal offence in the UAE for men and women who are not married to live together or to engage in consensual sex with someone other than their spouse. In this context, it was perhaps surprising to the parties to hear that an unmarried father should have no difficulty in enforcing his parental rights there. The mother’s application to take the children to live with her in Abu Dhabi was successful.

After further enquiry and consultation with another expert, it transpired that, even if the father’s arrangements were embodied in a comprehensive English order, the court in Abu Dhabi would not recognise or enforce any parental rights held by an unmarried father. The father appealed and invited the English court to reconsider its initial decision in light of this new information.

On hearing the second expert’s evidence, the first expert accepted that his initial assumptions were incorrect. Despite this, the English court still ruled that the children should be allowed to relocate to the UAE with their mother. Although the father appealed this decision, the Court of Appeal upheld the decision agreeing that the first instance judge had carried out a thorough analysis of what was in the children’s best interests.

This decision may surprise readers given the prospect that the courts of the UAE are unlikely to support this father in the future if he has difficulties seeing his daughters. However, the circumstances of this particular family were such that the court felt able to allow the mother to move with the children subject to certain safeguards put in place to try to ensure that the contact arrangements between the children and the father would be upheld. One of these was the provision of security over one of the mother’s new husband’s properties in London. However, the position remains that, while the father has the right to enforce the order in England, he has no legal recourse in the UAE should the mother not comply.

This highlights an uncomfortable legal truth that there are stark differences between the attitudes of English courts and those of the UAE. In English law, there is a concept of parental responsibility (PR) which is defined in English law as “all the rights, duties, powers, responsibilities, and authority that by law a parent of a child has in relation to the child and his/her property”. Broadly, this means that each parent with PR will have an equal say in the major decisions in a child’s life (for example, schooling, religious upbringing and medical treatment).

In the UAE, however, the courts’ interpretation is based on Sharia law which the UAE mandates is used as the primary legal jurisdiction on matters involving family law. Thus, in the UAE, parents do not share equal PR for a child and the roles of a mother and father are far more prescriptive, made up of a female “custodian” and a male “guardian”. The practical effect of this is that the mother custodian is responsible for the day-to-day care of the child while the father guardian is the child’s source of financial support.

Time will tell how this arrangement will play out in practise but there will doubtless be many parents, and indeed, lawyers who advise across these two jurisdictions, who will be paying close attention.

Ellie Hampson-Jones and Kate Molan, the article authors, are based in England and the guidance is provided from an English legal perspective. This article was prepared with the assistance of ‘Family Law: A Global Guide From Practical Law” (3rd edition) of which James Stewart of Penningtons Manches LLP is the General Editor.

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