It comes as a surprise to many that it is not possible to bring any action or present any agreement to a court in the UAE in respect of a child born out of marriage (sometimes rather unkindly referred to as ‘illegitimate children’). This fact was established in the proceedings leading to the recent Court of Appeal decision in Re B (Children)  EWCA Civ 1302, which was a case involving the relocation of two children to the UAE from England.
The UAE Federal Law of 2005 Concerning Personal Status does not refer to the issue, however the practice of the UAE courts is that they must be provided with the marriage certificate of the parents of the child who the proceedings concern before issuing any application concerning children.
In Re B, the Court of Appeal found that despite the fact that there could be no legal protection of the children through the courts of the UAE, the combination of the provision of financial security (a charge over a property) and an enforceable (by contempt proceedings) English court Order would be sufficient incentive for the mother in this case to comply with the arrangements/Order made to protect the children’s relationship with their father.
What is the position of children born outside of marriage, who already live in the UAE and have an English parent?
With no ability to approach a court, there is a risk that possession becomes “nine tenths of the law”. No application can be made regarding with whom a child lives, the time they should spend with the absent parent or how a child would be financially supported. If one parent wishes to return to England and there was no agreement about the return, there is no forum to assist the parents, leaving them with the unsatisfactory options of taking a defensive (hold on to the child) or offensive (leave the country without consent) approach.
It is understood that it is impossible to obtain a travel ban in respect of these children to prevent them leaving the UAE.
Fortunately, however, there are a number of routes available for parents to establish a claim in the courts of England and Wales despite the fact that they are living in the UAE, including:
- Habitual Residence
It is be possible to bring an action in a court in England and Wales if a child is habitually resident in England and Wales. Habitual Residence is a question of fact and there is no rule that a child automatically has the same domicile as its parents. Habitual Residence is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned, something that could depend on a host of factors such as the reason for the stay, the duration and the parents’ intention. It follows that a child who has lived for a number of years in the UAE, attended school and built or become part of a social and family environment there, could not be said to be Habitually Resident in England and Wales and therefore would have no right to bring a claim here.
- Article 12 Council Regulation (EC) No 2201/2003 (Brussels II Revised Regulation 2003)
The UK Supreme Court in a case concerning a child living in Pakistan, I (A Child)  UKSC 10, confirmed that as long as both parents agree or acquiesce to the jurisdiction of the courts here and have a substantial connection with England and Wales, then the court can make Orders despite the fact that the child does not reside in a European Member State.
- Parens Patriae
If neither of the two routes above apply, perhaps because there is no consent between the parents for the proceedings to take place in England and Wales, then there is the possibility of an English court exercising jurisdiction under this rather ancient provision. Parens Patriae relates to an old proposition that if a child owes allegiance to the Crown, then the Crown in return has a protective role for the child wherever the child lives. It is thought that the fact that there is no judicial remedy available to children born outside of marriage in the UAE would make the children’s situation, in some circumstances, “sufficiently dire and exceptional” so as to allow the courts of England and Wales to exercise their jurisdiction.
Orders that can be made by an English Court in respect of children living abroad and who are born outside of marriage
The following list of possible Orders is not an exhaustive list and all decisions made by an English court would be based on a full welfare analysis of what is in the child’s best interest:
- With whom a child should live and the time that that child should spend with the absent parent
- In what country the child should live
- The prevention of forced marriages
- Decisions regarding medical interventions
- Financial claims under Schedule 1 of the Children Act 1989
English Court Orders are not enforceable in the UAE. Before embarking on any of the options mentioned in this blog, consideration must first be the connection that the parent against whom the Order is being made has with England and Wales. Of particular importance might be whether that parent has assets, income, family and/or a need to travel to England and Wales now or in the future. A parent facing an Order made in this country would have to make a decision, before failing to comply with it, whether to become permanently exiled and/or face severe sanctions (possibly imprisonment or the sequestration of assets) for that failure.