Cassation No

Traveling with the Child in Custody:

- Taking the child in custody outside the country requires the written approval of the guardian. If the guardian refuses, the custodian can bring the matter to the judge, who will assess the justifications for travel and the reasons behind the guardian's objection. The forfeiture of the custodian's right is based on the conflict of travel with the child's interests, not merely the act of traveling itself.

Custody, Its Nature, the Mother has the Priority to Take Care of her Child:

- Custody involves the preservation, upbringing, and care of the child. The mother has the first priority in caring for her child, and in emergencies, custody may be transferred to the father. The determination of custody considers the child's best interests, prioritising this over the order of individuals entitled to custody.

Deficiencies in Factual Reasoning:

- An example of deficient reasoning is evident in obliging the appellant to return his children from their original homeland in the State of Chad to the UAE despite their settling down and enrollment in schools in their home country.

In accordance with the stipulations outlined in Islamic Sharia and the Personal Status Law, the custodian is expressly prohibited from undertaking international travel with the child without obtaining prior written consent from the guardian. In the event that the guardian withholds consent, the matter may be escalated to judicial review for evaluation. Furthermore, both during the course of matrimony and the Iddah period following a revocable divorce, the mother is precluded from relocating or traveling with the child outside the marital residence without the explicit written authorisation of the father.

Subsequent to a separation, the mother retains the prerogative to relocate within the confines of the country with the child, provided that such a move does not disrupt the child's upbringing, is not injurious to the father, and does not impose an undue burden or extraordinary expenses on him for visitation. In cases where the custodian is a party other than the mother, any travel with the child necessitates written authorisation from the guardian. Similarly, the guardian, whether the father or another individual, is proscribed from traveling with the child during the custody period without obtaining the written consent of the custodian.

It is imperative to note that the forfeiture of custody for a divorced mother is impermissible solely due to the father relocating to a different country. Such forfeiture is only admissible if the relocation serves settlement purposes, is non-detrimental to the mother, and the geographical distance between the two countries hinders visitation and same-day return through regular means of transportation, 1- in accordance with the Maliki and Hanafi schools of thought. Islamic Sharia, in its benevolence, underscores the assignment of custody to women over men as a manifestation of the mercy and compassion bestowed upon women by the Creator for the welfare of their children. The paramount consideration in all instances remains the best interest of the child in custody.

The provisions of Islamic Sharia firmly establish that custody is the inherent right of the child over both parents, constituting a shared obligation as long as the marital union persists. This underscores Islamic Sharia's progressive stance on safeguarding, nurturing, and fostering the child in accordance with the directives of the Creator, may His Glory be exalted, aiming for the child to become a constructive member of society. Islam places considerable emphasis on the family unit, encompassing all its members. In its earnest commitment to the perpetuity and stability of the family structure, Islam has ingeniously devised pre-emptive solutions and regulations to address anticipated issues, thereby alleviating the burdens and mitigating the resultant effects. The Sharia's concern for children is congruent with their educational and emotional requirements, reflecting a holistic approach to their well-being.

The legislation regarding child custody after divorce takes into account various variables and specific circumstances, prioritizing the child's best interests, life, and safety.

The mother is considered more entitled to custody as an act of kindness and respect for her, acknowledging her maternal affection if she is fit for custody. If an emergency arises for her, then custody may be transferred to the father. This approach aligns with the teachings of Prophet Muhammad, may God’s prayers and peace be upon him, his family, and his companions (All of you are shepherds and each is responsible for his flock, and the man is a shepherd of his family and is responsible for his flock, and his saying, may God’s prayers and peace be upon him, his family, and his companions. It is enough sin for a person to lose those he supports and provides for).

The evaluation of the child's best interest in custody is regarded as a factual matter within the purview of the trial court, and it possesses the jurisdiction to conduct such assessments without necessitating additional review, provided that its decision is founded upon justifiable and substantial grounds. Subsequently, the court is not compelled to align itself with the contentions and arguments put forth by the opposing parties, so long as it elucidates the legal principles underpinning its judgment and includes a refutation of any conflicting assertions.

Given the circumstances outlined, it is evident that the contested ruling failed to take into consideration crucial factors, including the conditions of legal relocation to the original country. The appellant's relocation, aimed at settling and not detrimental to the mother, aligns with the legal requirements for such moves. Moreover, the geographical distance between the two countries impedes the appellant from visiting the child in custody and returning on the same day through regular means of transportation. Contrary to the established legal and material facts, the contested judgment erroneously compelled the appellant to repatriate the children from their original homeland in Chad, despite the prior agreement between the parties. This agreement, made in consideration of the cancellation of the appellant's work-related activities due to the COVID-19 pandemic, was contingent upon his impending move to the Republic of Chad, where his residency is in the process of cancellation for permanent return and relocation. The contested ruling lacks sufficient rationale and deviates from the legal consequences of the relocation, which is substantiated by written and judicial evidence. Notably, the relocation was for settlement purposes and did not pose harm to the mother. The judgment, therefore, fails to appropriately consider the established legal and factual circumstances surrounding the appellant's relocation. Furthermore, the children have already relocated to their homeland and seamlessly integrated into their schools and familial environment, underscoring the impracticality of bringing them back to the state. It is crucial to note that the repatriation is contingent upon social and economic conditions and the approval of administrative authorities, aspects that have not been substantiated to have been obtained subsequent to their return and settlement in their original homeland. Regrettably, the contested ruling failed to duly consider and examine this meritorious defence. This oversight renders the ruling deficient in reasoning and constitutes a breach of the right of defence. Also, the ruling relied on insufficient reasons that lacked the requisite support. By failing to recognise this crucial aspect, the ruling erred in comprehending the factual reality and assessing the evidence, resulting in a violation of the tenets of the noble Islamic Sharia and the law. Consequently, it is imperative that the ruling be reversed.

Whereas, Article 13 of the Personal Status Law No. 28 of 2005 stipulates that if the Court of Cassation reverses all or part of the contested ruling, it shall adjudicate on the merits.

The Court

Whereas in the facts of the case, the plaintiff-respondent initiated legal proceedings against the appellant, seeking an order for the defendant to bring back the children [Names] from their country in the State of Chad. The plaintiff argued that the appellant, her husband, had caused her harm by returning the children to their homeland without her proper authorisation, leading her to seek legal intervention.

The court of first instance, in a session on 27/7/2020, dismissed the case, citing the plaintiff's acknowledgment that the defendant, who is the natural and legal guardian, resides in Chad, his country of origin. The court found that the relocation was for the purpose of settling down, and as a result, rejected the plaintiff's claim.

Discontented with this decision, the plaintiff appealed the ruling.

Subsequently, in a session held on 11/1/2021, the Court of Appeal reversed the appealed ruling, instructing the appellant to bring the children back from their country in the State of Chad to the UAE.

In response to this, the appellant filed an appeal in cassation against the decision of the Court of Appeal. After presenting the cassation appeal to the court convened in a Council Chamber, the panel deemed it valid for consideration, and a session was scheduled to hear it, with both parties notified of the proceedings.

The appellant objects to the contested ruling, asserting that it violates the provisions of Islamic Sharia and the law, breaches documented facts, and contains flaws in inference. Specifically, the appellant takes issue with the court's decision to compel him to bring the children back from Chad to the UAE, despite having settled there and being enrolled in schools. The appellant argues that there was a prior agreement with the respondent to return to their homeland after the company's activity was canceled due to the COVID-19 pandemic, asserting that his residency is under cancellation and an intention to relocate permanently to Chad, which constitutes a meritorious defence that the trial court did not address, leading to deficiencies in causation and a breach of the right of defence, warranting a reversal of the ruling.

This objection lacks merits, since in accordance with the stipulations outlined in Islamic Sharia and the Personal Status Law, the custodian is expressly prohibited from undertaking international travel with the child without obtaining prior written consent from the guardian. In the event that the guardian withholds consent, the matter may be escalated to judicial review for evaluation. Furthermore, both during the course of matrimony and the Iddah period following a revocable divorce, the mother is precluded from relocating or traveling with the child outside the marital residence without the explicit written authorisation of the father.

Subsequent to a separation, the mother retains the prerogative to relocate within the confines of the country with the child, provided that such a move does not disrupt the child's upbringing, is not injurious to the father, and does not impose an undue burden or extraordinary expenses on him for visitation. In cases where the custodian is a party other than the mother, any travel with the child necessitates written authorization from the guardian. Similarly, the guardian, whether the father or another individual, is proscribed from traveling with the child during the custody period without obtaining the written consent of the custodian.

It is imperative to note that the forfeiture of custody for a divorced mother is impermissible solely due to the father relocating to a different country. Such forfeiture is only admissible if the relocation serves settlement purposes, is non-detrimental to the mother, and the geographical distance between the two countries hinders visitation and same-day return through regular means of transportation, in accordance with the Maliki and Hanafi schools of thought. Islamic Sharia, in its benevolence, underscores the assignment of custody to women over men as a manifestation of the mercy and compassion bestowed upon women by the Creator for the welfare of their children. The paramount consideration in all instances remains the best interest of the child in custody.

The provisions of Islamic Sharia firmly establish that custody is the inherent right of the child over both parents, constituting a shared obligation as long as the marital union persists. This underscores Islamic Sharia's progressive stance on safeguarding, nurturing, and fostering the child in accordance with the directives of the Creator, may His Glory be exalted, aiming for the child to become a constructive member of society. Islam places considerable emphasis on the family unit, encompassing all its members. In its earnest commitment to the perpetuity and stability of the family structure, Islam has ingeniously devised pre-emptive solutions and regulations to address anticipated issues, thereby alleviating the burdens and mitigating the resultant effects. The Sharia's concern for children is congruent with their educational and emotional requirements, reflecting a holistic approach to their well-being.

The legislation regarding child custody after divorce takes into account various variables and specific circumstances, prioritizing the child's best interests, life, and safety.

The mother is considered more entitled to custody as an act of kindness and respect for her, acknowledging her maternal affection if she is fit for custody. If an emergency arises for her, then custody may be transferred to the father. This approach aligns with the teachings of Prophet Muhammad, may God’s prayers and peace be upon him, his family, and his companions (All of you are shepherds and each is responsible for his flock, and the man is a shepherd of his family and is responsible for his flock, and his saying, may God’s prayers and peace be upon him, his family, and his companions. It is enough sin for a person to lose those he supports and provides for).

The evaluation of the child's best interest in custody is regarded as a factual matter within the purview of the trial court, and it possesses the jurisdiction to conduct such assessments without necessitating additional review, provided that its decision is founded upon justifiable and substantial grounds. Subsequently, the court is not compelled to align itself with the contentions and arguments put forth by the opposing parties, so long as it elucidates the legal principles underpinning its judgment and includes a refutation of any conflicting assertions.

Given the circumstances outlined, it is evident that the contested ruling failed to take into consideration crucial factors, including the conditions of legal relocation to the original country. The appellant's relocation, aimed at settling and not detrimental to the mother, aligns with the legal requirements for such moves. Moreover, the geographical distance between the two countries impedes the appellant from visiting the child in custody and returning on the same day through regular means of transportation. Contrary to the established legal and material facts, the contested judgment erroneously compelled the appellant to repatriate the children from their original homeland in Chad, despite the prior agreement between the parties. This agreement, made in consideration of the cancellation of the appellant's work-related activities due to the COVID-19 pandemic, was contingent upon his impending move to the Republic of Chad, where his residency is in the process of cancellation for permanent return and relocation. The contested ruling lacks sufficient rationale and deviates from the legal consequences of the relocation, which is substantiated by written and judicial evidence. Notably, the relocation was for settlement purposes and did not pose harm to the mother. The judgment, therefore, fails to appropriately consider the established legal and factual circumstances surrounding the appellant's relocation. Furthermore, the children have already relocated to their homeland and seamlessly integrated into their schools and familial environment, underscoring the impracticality of bringing them back to the state. It is crucial to note that the repatriation is contingent upon social and economic conditions and the approval of administrative authorities, aspects that have not been substantiated to have been obtained subsequent to their return and settlement in their original homeland. Regrettably, the contested ruling failed to duly consider and examine this meritorious defence. This oversight renders the ruling deficient in reasoning and constitutes a breach of the right of defence. Also, the ruling relied on insufficient reasons that lacked the requisite support. By failing to recognise this crucial aspect, the ruling erred in comprehending the factual reality and assessing the evidence, resulting in a violation of the tenets of the noble Islamic Sharia and the law. Consequently, it is imperative that the ruling be reversed with an unequivocal adjudication.

Whereas, Article 13 of the Personal Status Law No. 28 of 2005 stipulates that if the Court of Cassation reverses all or part of the contested ruling, it shall adjudicate on the merits.

Based on the foregoing.