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The Summary Return of Children

With this article we want to share another perspective of Dubai, which is strictly related to single parents who want to leave with their children and they are not allowed. Quite a struggle for many of them who feel trapped and with not many escapes.

Getting out of Dubai is not always easy

Unless a mother has the consent of the father, she cannot remove her children permanently from the UAE. There is no judicial process that enables her to ask the court for permission to leave, and “travel bans” preventing children leaving the region are an everyday administrative exercise of paternal control.

A parent who removes a child from the country in which they are habitually resident without the consent of the other parent is, on the face of it, abducting them.

The Hague Abduction Convention is an international treaty which ensures, between countries that have signed up, the swift return (broadly speaking) of the children to the country from which they have been taken. The UAE is not a signatory to the treaty.

The courts of England and Wales take their responsibility seriously with returns happening very rapidly in most cases.

It is fair to say that there are very many mothers trapped in the UAE because of their inability to leave with their children. Swimming is not an option. It follows that very often, when expatriate marriages in the UAE run into trouble, the stakes are high and every year mothers and children take pre-emptive action and leave Dubai without consent.

Michael Rowlands, partner in the family team at JMW solicitors says, “This summer in particular, Covid has meant that many mothers have extended their escape from the heat of the Dubai summer, stayed longer than anticipated and then decided to remain here permanently. Despite the antics of some lawyers who practice in this specialist area, procedurally what happens next is not a supercharged return of the children. The father who rocks up at the High Court in London with a demand that his children are returned that day, can only expect to be sent packing.”

There are actually two procedural possibilities for the father.

  1. An application requesting the High Court to use its Inherent Jurisdiction to make the children wards of court and start a process commonly described as a summary return, which on average takes between two and three months; or
  2. An application, which will usually end up in the High Court, under Section 8 of the Children Act 1989 for a Specific Issue order; the return of the children to the country that they have been taken from.

The rules of engagement can be found at Practice Direction 12D, par1.1

“It is the duty of the court under its inherent jurisdiction to ensure that a child who is subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.”

Mostyn J this year in N (A Child) [2020] EWFC35 emphasised the need for there to be “exceptionality” before the court's inherent power could be invoked.

“I have referred above to the need to establish exceptionality if the path chosen is an application to the High Court under its inherent powers. It is hard to conceive of circumstances where this would be justified. The matters referred to by Lord Wilson, namely urgency, complexity or judicial expertise can be fully accommodated by allocating the matter upwards within the Family Court, if necessary to High Court judge level. That is what has happened in this case.”

Whichever approach is adopted, the courts will always be required to do two things

  • Decide if the children should stay or go; and
  • Manage and protect the children’s relationship once that decision has been made.

The challenge for the courts in England and Wales has always been the same, how to balance the interests of the children and both parents, where the UAE offers no judicial route for a mother to make a request to leave with her children.

Effectively the process under the Inherent Jurisdiction/Wardship route experienced by many mothers is a fast tracked permission to leave (the UAE) application, making the S 7 Children Act procedure by far the most comprehensive when subject to a rigorous approach to time tabling.

My experience has been that very few children are returned to the UAE for the following reasons

  • There has usually been a solid primary case for the children's relocation, rarely a whim.
  • It is difficult for guarantees to be put in place that prevent the undermining of the mother's future relationship with her children by subsequent proceedings in the UAE courts.
  • Whilst it is possible for parents to make agreements capable of registration in the Personal Status Courts of the UAE as orders, there is limited experience of them being tested with extreme prejudice and even local experts give them at best a 70% guarantee.

Inevitably, the dilemmas faced by parents in these situations are severe. Mediation before the event is clearly not an option as the father would be on notice and lawyers will never (I imagine) feel able to encourage the actual move without notice, leaving mothers very much on their own. However, there are a handful of lawyers in both jurisdictions with specialist experience who can advise on the consequences of such a move and particularly the appropriate tactical and practical approach.

Source of information: Joslyn Hill Communications