According to the Egyptian Family Law the custody is preferably given to the mother rather than given to the father, which lead to the result that many fathers are prohibited from seeing their children, especially if they are foreigners, as seeing the child is controlled by the custodial parent in case of agreement between parents or by a court order in case it is difficult to arrange a visit with the children by agreement.
A. Enforcement of Foreign Custody Orders in Egypt1
A parent can request from the Egyptian Courts that a foreign custody order be recognized in Egypt, but enforcement will result only if the order does not contravene Shari’a law and “paternal rights.” Therefore, as a practical matter, foreign custody orders are generally not automatically recognized in Egypt and the left-behind parent must work within the Egyptian court system in order to obtain legal custody over the child in Egypt.
Shari’a law as it is applied in Egypt primarily favors the mother. Mothers are most commonly considered to be the appropriate custodians of children until the age of 15. Generally, if custody disputes arise between the parents, Egyptian courts uphold presumptive custody.
B. Custody and Abduction of Children in Egypt2
The removal of a child by the non-custodial parent to or within Egypt is not a crime in Egypt unless the child is subject to Egyptian court-ordered travel restrictions.
The abduction of a child by either parent or grandparent from the person who, by a decision of the judicial authority in Egypt, has the right of guardianship or custody of the child is an offence according to Article 292 of the Egyptian Penal Code No.95 of 2003. In addition, the refusal of a parent or grandparent to deliver a child to a person with the right to claim the child according to a judicial decision is a crime according to the same article. Custody order must be decided by the Egyptian Court to consider kidnapping as a crime.3 Egypt is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction which is a multilateral treaty. The Hague Convention on the Civil Aspects of International Child Abduction seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The Convention ensures that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states.4
In October 2003, the U.S. and Egypt signed a Memorandum of Understanding (MOU) that purportedly confirms both countries’ commitment to facilitating parental access to children in the other country. However, currently it only provides for the possibility to have some access in Egypt. It does not address international child abduction. In practice it has no teeth and is relatively meaningless.
As of May 2010 there were 27 active cases in the Secretary of State’s Office of Children’s Issues of American children abducted to Egypt. The Secretary of State has no power to get them back. As of May 2010, not one abducted child had been returned to the US from Egypt within the prior two years through judicial or official means.
C. Egyptian Government Efforts5
In February 2000, by a Ministerial Decree, the Egyptian Ministry of Justice established the Committee “International Cooperation Committee” for custody disputes related to children born from mixed marriages. It is also known as the ‘Good Office Committee’.
The Committee’s aim is consistent with the Ministry of Justice’s policy to promote international cooperation in settling conflicts arising from the custody of children born from mixed marriages, according to the provisions of Egyptian legislation and the international conventions ratified by Egypt, as well as the relevant bilateral agreements.
In the light of what the parties amicably agree to or propose, the Good Office Committee issues convenient recommendation that suits the case. In fact this recommendation is issued based upon both parties being willing and understanding to resolve their dispute. Work of the Good Office Committee6 does not prevent the parties from the right to initiate court proceedings or to continue any ongoing court proceedings. This is affirmed by the fact that the recommendations issued by the Good Office Committee are non-binding. Meaning that the parties can go to the Good Office Committee, while at the same time pursuing the matter through the courts.
D. Custody according to Egyptian Family Law 7
The women’s right to the custody of children shall be terminated with the son or daughter attaining the age of fifteen (15).8
The right to the custody of children shall be established for their mother then for the female relatives who are in degrees of consanguinity that prohibit marriage. The priority in this regard shall be given to the mother’s female relatives over the father’s female relatives.
Each one of the parents shall have the right to see the children. In case it is difficult to arrange visiting right of the children by agreement, the Court shall organize that, providing it shall take place where there is no psychological harm to the children.
Visiting rights shall be not less than three (3) hours a week between the hours of nine in the morning and seven at night, taken into account as much as possible that this visitation is during the official holidays, and does not contradict with the regularity of the young child in his education.9
As a result, many fathers are prohibited from seeing their children according to the Egyptian Law as it will give them only 3 hours a week which is not enough to communicate socially with their children.
A report by the Egyptian Gazette on April 13th, 2011 mentioned that many fathers, prohibited from seeing their children, recently demonstrated outside the Ministry of Justice. It is the Law on Visitation Rights that prevents them from communicating socially with their children.10
Seven million children and 5 million fathers are harmed by this law that was issued by ex-President Mubarak, supported by his wife.
In the light of such protests, it is expected that incumbent Minister of Justice Abdel-Aziz El-Guindi will issue a decision allowing fathers to host their children in the custody of their divorced wives for 48 hours a week, instead of seeing them for just 3 hours a week, according to the Law on Visitation Rights.
We are still waiting for this decision which will give a hope to fathers.
|July, 2011||Abdel Hameed Galal|
|Meyer-Reumann & Partners – Cairo|