Filing Travel Ban in the Family Matter

14 Mar 2022

According to article 29 of the UAE’s Constitution, “The freedom of movement and residence will be granted within limits of laws”. There is freedom of movement in the UAE, but sometimes this freedom can be objected to by law as a travel ban. A travel ban is a restriction of entering, re-entering or exiting the country, and there are different types of travel bans in the UAE; we can categorize into four (4) groups:

  • Criminal offenses;
  • Unpaid debts;
  • Breach of immigration laws; and
  • Family matters.

Concerning the travel ban for family matters, article 149 of the Personal Status Law (PSL) lays down that the custodian(mother) is not allowed to travel abroad with the Child without the prior consent of the guardian(father). Furthermore, article 157 of PSL states that the custodian must keep the Child’s passport, but in case of travel of the Child, the custodian can have it. The United Arab Emirates is a Muslim country, and the custody decisions are based on Islamic law (Shari’a Law). A parent can obtain a court order that places a travel ban for a child that will be imposed at all the airports in the country, but if a parent attempts to travel with the Child who has been placed under a travel ban, this can bring him/her legal consequences.

But how to fill a travel ban for a child in UAE? these are the steps:

  1. Obtain any evidence about suspicions that your couple will leave the country and translate them into Arabic.
  2. To provide all the pieces of evidence and documents to the family lawyer, he/she will make an application to the Civil UAE Court for a judge to apply a travel restriction on the Child to avoid the travel of the Child. The issue of a travel ban could be decided within 24 hours of an application being made; the reason for this process’s speed is to avoid child abduction and its consequences.
  3. If the judge issues a travel ban, the other party must be notified of the decision.
  4. The Court will give immigration authorities instructions not to allow the Child to leave without the guardian’s written consent.

 

The travel ban will be available in all the UAE airports. On the other hand, child abduction is the illegal removal of a minor from the Child’s natural parents’ custody or legally appointed guardian. In the international context, we can find the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Convention) that is a multilateral treaty with the main object to defend children from the injurious effects of wrongful removal and retention across international boundaries by providing a process to bring about their quick return and warranting the protection of rights of access. According to article 8 of the Convention lays down that any person or body claiming that a child has been separated or retained in violation of custody rights may apply either to the Central Authority of the Child’s usual residence or to the central authority of any other contracting State for support in securing the return of the Child. The applications must contain

  1. Information about the applicant’s identity, the children, and the person who has retained the Child.
  2. The date of birth of the Child.
  3. The reasons on which the applicant’s claim for return of the Child is based.
  4. All the information concerning the whereabouts of the Child.
  5. An authenticated copy of any important decision or agreement.

 

Nevertheless, the UAE has not signed the Convention, but parental child abduction is a criminal offense in the UAE treated as a child custody case. A parent shall apply for custody and approval to bring the Child back to his/her habitual residence through the UAE Courts. The Federal Law Number 3 of 1987 (the Pena Code), penalizes in article 344 the act of kidnapping “anyone whosoever illegally kidnaps, arrests or detain any individual from his/her freedom by any means and whether by himself or through a mediator shall be sentenced to imprisonment.”, according to this article, parent-child abduction is considered as kidnapping, and the punishment could be imprisonment. The concerned party can apply to remove the travel ban on a child to the Court, but the applicant must convince the Court that:

  • There is a good motive for the child to leave the UAE.
  • The child will be brought back again.

Decision number 33 of 2021 issued in the Emirates of Dubai organized the liberty of travel with the Child and the travel ban resolution. As per Article 14 of the decision, the right to travel with the Child must be secured by the force of law, and protection of this right is beside the father and mother’s right. If one of the parents wish to impose a travel ban, it will be considered the following factors:

  • The nationality of the parents, Child, and if one of them is a UAE citizen or not;
  • The proof that one of the parents is preparing to travel with the Child;
  • The Proof that the other parent traveled with the Child before without the consent of the applicant;
  • The proof that traveling with the child must affect his/her health (physically or moral) or it will be a risk for the child;
  • The Child and the parent must have a valid residency visa; and
  • The custodian’s family should not be residents of the UAE.

A critical advantage of this decision is that for the first time, the guardian has the right to travel with the infant for a short term even if the custodian has refused, nevertheless this right to travel with the Child of the custodian have certain conditions, such as:

  • The guardian must present proof that the custodian refused the travel without a valid reason. The custodian’s benefit is much less than the harm received by the guardian of the Child.
  • All the parties must have a residency visa in the UAE: the custodian, the guardian, and the Child
  • The family of the guardian must be living in the UAE
  • The custodian is admitted to an education institution
  • The guardian must be working in the UAE
  • The age of the Child
  • The judge will contemplate the destination, the distance, and the safety measure
  • If the application is made within the academic year or annual.