Okay. So that the course clarified the child in the UAE does not have a right of choice with regard to the parent he or she wants to live with.
It is only upon the competent court to decide what is in the best interest of the child.
Judgements regarding the extension of female custodianship indicate that courts are indeed willing to extend
the statutory the female custody beyond the statutory age limits whenever the mother is the custodian.
It is also noteworthy that when the mother is the custodian and the custody is extended, it is usually up to the very limits of the law.
Puberty and marriage.
I did not come across a single judgement that ordered an extension of female custody at a different age in between the two options.
The 2005 Court of Personal Status also determines the exact order of custody, as mentioned before in Article 146.
However, courts in the UAE did not always adhere to that order.
In 2006, just one year after the new code entered into force, the Dubai Court of Cassation pointed out that the courts do,
in fact have the right to allocate custody, assign custody according to the classical Maliki rules.
That is, with the maternal grandmother and not the father following the mother immediately in vain.
This judgement serves as an example of how legal reform initiated by the legislator does not always resonate with the judiciary immediately.
Thus far, there have been no cases recorded in which the courts had to decide upon the custody of a non-Muslim mother for her Muslim child.
Research in this area of the law has to wait for the first cases to be tried, according to Article 145 of the new code.
These judgements will throw valuable light on the significance that is placed
upon religious affiliation when courts determine the welfare of the child.
And one of the recent Kurdish occasions in the Arab Gulf, the Carter Family Code of 2006,
stands out in defining in what exactly constitutes the welfare of the child.
According to the Qatari code, judges are to consider the custodian's affection for the child and his ability or her ability to raise the child,
as well as provide a sound environment, education and medical care.
The Emirati legislator did not include such stipulations in the new codification, and thus it is upon the courts to define the welfare of the child.
When analysing judgements from the past seven years since the qualification in the UAE,
it becomes clear that the Emirati court's definition of what constitutes the welfare of the child is similar to the statutory provisions in Qatar.
Two reoccurring themes are the quest one the question of what is harmful to the child, and second, the affection of the custodian.
At the same time,
the courts in the UAE have thus far refrained from defining in clear terms the welfare of the child in a way that the Qatari legislator did.
I know selected two cases to illustrate how high courts use their discretion in deciding the
best interests of the child without actually defining what constitutes the child's welfare.
According to Article 144, as mentioned earlier,
a woman with a woman will lose custody if she remarries two men who is not prohibited from marrying the child under custody.
However, the Dubai excuse me, the Abu Dhabi Court of Cassation decided to the contrary,
according to a judgement from 2011, a mother between custody of her son.
As the Court established that the existing marriage to the non-related men did not cause any harm to the boy.
The ruling maintained that a continuation of the mother's custody was more beneficial to the child than a transfer into his father's custody.
Thus, in the interest of the child, the court actually ruled against the statutory provisions of the code as it established the mother's
strong affection for her child and her continued ability to raise him despite of the new marriage.
The second judgement further illustrates the Court's use of judicial discretion.
In 2006, the UAE High Court granted a woman custody of her five minor children, all boys aged 5 to 14,
even though she had previously convicted of a so-called crime against honour, which includes adultery.
Her husband divorced in 2004 after he caught her in private with an unrelated man in their house.
And after the divorce, the father initially claimed custody for his five children,
some of whom had mental and physical disabilities, in order to care for the children, probably properly.
His mother, the children's paternal grandmother, lived with them.
So all the conditions that are required to be fulfilled by the father were indeed fulfilled.
The mother now filed a lawsuit against her former husband to have her five minor children handed over into her custody.
And in order to establish the mother's ability to take care to care for the children.
The court of first instance had already interviewed a facility for children with special needs that worked with the family.
The facility's staff testified to the mother's strong affection for the children and her ability to raise her.
And the UAE high court confirmed the verdict. The court maintained that it was within the court of first instance competence
to establish the welfare of the child and that the reasoning was flawless.
A strong bond between the mother and the children was of utmost importance for their welfare,
since the mother further had the ability to care for the children and raise them.
As testified by that facility. The Court did not see any reason to transfer the children back into their father's custody.
The mother's custodianship was thus controlled despite of her previous convictions.
The court argued that the welfare of the child outweighed the father's eligible claim to custody for his children.
Okay, so to conclude, let me say that judgements of high courts in the UAE has in fact closed some of the gaps which the new code contain.
Examples are the age at which puberty is to be assumed,
and the question of custody within an existing marriage have both been clarified by the courts,
where the code reflects the division of parenting functions along gender lines and a curtailment
of rights that classical Islamic law granted mothers in the pre-qualification period.
The courts have, at the same time shown considerable flexibility in applying the law.
Judges do make use of their large discretion when assigning custody, such as the different age limits for female custodianship,
and they sometimes even go beyond the statutory provisions, for example, when granting a remarried mother custody of her child.
However, the court's definition of the welfare of the child mostly remains that courts frequently named the affection for the child as well.
The ability to raise him or her as indicators to when to as indicators for the child's welfare.
These factors are, however, difficult to measure.
High courts in the UAE have thus far refrained from defining a clear frame of reference for establishing the welfare of the child.
It is also rather difficult to find an answer to the question if the codification of
Muslim personal status law in the UAE succeeded in bringing about legal certainty
through an analysis of custody judgements as such just undertaken because a
review in this of verdicts in this area proves that even after the codification,
the large judicial discretion prevails. So judgements from the pre and the post codification period do not differ significantly why
the court did establish fixed age limits and conditions to be fulfilled by the custodian.
The code still grants the judiciary large discretionary powers to decide to the contrary,
mostly whenever such a deviating judgement is in the best interests of the child.
And courts do make use of this discretion. Therefore, legal certainty can only be guaranteed in so far as it concerns the absolute necessity
for the courts to always consider the welfare of the child when allocating custody.
Thank you very much.