The concept of Legal guardianship is determined as per the UAE Federal Law Number 28 of 2005 on personal status and its amendments, commonly referred to as the ‘Personal Status Law’.
The UAE personal status law follows the Shariah law as can be seen from its concept of “Legal guardian”. This constitutes an interesting facet of UAE custody laws wherein the concept of “legal guardian” and “Custodian” exists.
The legal guardian of a child is required to financially support the child, and it is the legal guardian that is allowed to take all the major decisions related to the child’s upbringing. Unlike the legal guardian, the “custodian” is required to look after the child affair’s in terms of their daily upbringing. For this reason, the Custodian has the physical custody of the child as opposed to the legal guardian and is tasked with the duty of educating and providing the basic care of the child.
The mother of the child is accorded by the law the role of a “custodian”, and the father of the child is accorded the role of a “legal guardian”. Pursuant to the UAE laws, the Mother is given the custody of the children up to a certain age which is, till the age of 11 for a male child and till the age of 13 for a girl child and further extensions are possible subjects to the approval of the Court.
Pursuant to Article 156 of the Personal Status Law,
1. The right of women to fosterage of a child shall end upon his reaching the age of eleven years, if a male, and thirteen years, if a female, unless the Court deems that extending this age to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest.
2. Unless the interest of the fostered child otherwise requires, the women fosterage shall continue in case the child is of unsound mind or suffering of a disabling illness.
Taking this law into account, the UAE Courts in a majority of the cases, allow the custody of the child to the Mother, and this is considering the fact that the child at a younger age needs the care and attention from their Mother the most. Also, pursuant to the UAE laws, if the legal guardian dies, then the guardianship passes to the male heir on the father’s side of the family. However, despite this, the Courts are duty-bound to look after the best interests of the children, which is why they are required to handle each case on its own merit, and it possible for the courts to decide that one parent is to accord both the roles of custodian and legal guardian. Considering the unique facts of each case, the courts have to make the decision that favors the best interests of the client.
In order to challenge the custodianship of the mother, it should be established before the Courts that the Custodian is to be deemed ‘unfit and thereby custody is to be revoked. In order to establish that a parent is ‘unfit,’ it must be conclusively proven before the courts by presenting evidence and witness testimony.
There are certain specific grounds on which custody can be challenged, and it includes amongst others:
It is important to note that despite the general guidelines the UAE courts are obligated to take the decision always in the best interest of the child.
Article 4 of the Federal Law no. 3 of 2016 on ‘child rights’ states that:
The protection of the child and his/her best interests shall have priority in all the decisions and actions taken in his/her regard. The competent authorities and the concerned entities shall work on achieving the same by taking necessary measures, namely:
a- Ensuring to meet the moral, psychological and physical needs of the child under the special circumstances of his/her age, health and family surroundings, and particularly his/her right of custody.
b- Giving the child priority of protection, care, rescue and guidance in cases of emergencies, disasters, armed conflict and any crime committed against him/her.
c- Not harming the child psychologically in all the stages of collecting evidence, investigation and trial, whether the child is a party to the case or a witness.
Keeping the same in mind, the courts have issued landmark judgments wherein custodianship has been denied to mothers and also, instances wherein the legal guardian was not allowed custody of the child when the child completed the majority age as provided under article 156 of the personal status law.
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