Tim Elliot: Welcome to Lawgical, the U.A.E.’s first, and still the only, legal podcast. My name’s Tim Elliot. Now Lawgical is brought to you by the Dubai-based legal firm, HPL Yamalova & Plewka. As always, the Managing Partner, Ludmila Yamalova, it is lovely to see you.
Ludmila Yamalova: Great to see you too, Tim, as always, and thanks for doing this for us.
Tim Elliot: You’re very welcome. Now, this episode is genuinely fascinating. It’s one of those real human stories, and it features, for the purposes of this podcast, a lady that we’re going to call Ann. Now recently, and we will get to the story in a moment, Ann found herself in an unusual situation. She didn’t feel well and finding out what it was, it was something quite unexpected, causing her medical distress.
I was having a really bad headache, and I didn’t know what it was. I thought my blood pressure was just really high and giving me this extreme headache, so, I was brought to one hospital. Keep in mind, these were the lockdown days here in Dubai. I was brought to one hospital and they couldn’t fix my blood pressure, so I was brought to another hospital the next day. And then one night, I think one-year basis – yea, after one night, they still couldn’t bring my blood pressure down, and then the next day they figured out that there was a baby that was causing my blood pressure to go up. So, after figuring that out, I had to go for an emergency CS.
Tim Elliot: That’s Ann. Now, stressful, Ludmila, really doesn’t cover, I guess, how she must have really been feeling.
Ludmila Yamalova: Indeed, because on the one hand, she just found out that she was having a baby, and not only that, but the baby was arriving in just a matter of a few hours at best, and that is for someone that did not know she was pregnant all along. Then also, and this is the part of the mixed emotions, is that connected to the fact that she did not know that she was pregnant, the father of the baby, that wasn’t really factored into the equation either. She wasn’t aware who the father of the baby might be. Then obviously, as a result of that, she wasn’t married at that point, so that is another mixed bag of emotions. And being in the U.A.E., there were obviously repercussions and consequences. All those who have lived in the U.A.E. long enough, always knew that this is just not something that you want to encounter in your life while in the U.A.E., that is, being pregnant out of wedlock because these kinds of events, and I call them events now, they were considered to be criminal offenses under the law.
Tim Elliot: Yea. The law has since changed, and we will come to the changes in particular with this story. So, this is May 2020, and what happened for Ann? She was going to go back home. She had cancelled her visa and was about to leave the country, wasn’t she?
Ludmila Yamalova: Yes. That was the plan until this happened, and as part of her being admitted to the hospital, because this was an expected event, it also resulted in a number of health consequences to her. The baby was born prematurely, so obviously the baby ended up being in the hospital for extended periods of time, so require medical care, quite close medical care. So, both of them ended up being in the hospital, so whatever plans she had to leave the country had to be cancelled because not only was she in the hospital, but even after she was discharged, the baby continued to be in the hospital until it was safe for the baby and the baby’s health to be released.
But even then, prior to being released from the hospital, she started feeling the pressure of submitted certain documents in order to ultimately be released. This is the general protocol in the hospitals in the U.A.E. when they deliver a baby. Normally you would expect that you are pregnant, so you would have perhaps already opened a file with the hospital a head of time, and as part of opening that file, you would be registered and submit a number of documents. The list of documents pertain, in short, to both parents and the relationship between the two parents. Among other things, she needed to submit not only her passport copy and her emirate’s ID, but also the passport copy and emirate’s ID of the father of the baby, and more importantly, a marriage certificate, none of which she obviously had, and until such time that these documents were submitted to the hospital, the hospital wasn’t too eager to discharge her. So, she started feeling the pressure of having to produce some kind of documents just in order to be discharged. So, in addition to her medical complications and the baby’s medical complications, there were legal complications of having to submit the documents which she did not have.
Tim Elliot: There are two cases ultimately here. I mean, the hospital says they can’t issue a birth certificate because we don’t have the appropriate documents. I can understand the thinking there. But then a criminal case ensues and obviously a civil case ensues. Can you talk us through what happened from when the hospital said that we can’t do the birth certificate, we can’t get it issued for you?
Ludmila Yamalova: So, it did not even happen that clearly. It wasn’t that she was asked to present these documents in order to have the birth certificate issued. It was more that she was required to present these documents as part of her stay at the hospital and part of even having a file in the hospital. I don’t believe it was even that clear for her that you need these documents in order to have the birth certificate. It was more you need to have these documents in order to be able to leave the hospital and go home.
Tim Elliot: Right.
Ludmila Yamalova: Then at some point, because it is a two-step process, one is to get discharged from the hospital, and two is that you need to submit all sorts of documents and fill out an application for the issuance of the birth certificate. That was the second step, but since she had not even gotten to the second step, she just needed to have the basic documents submitted on who the alleged father was and the marital status, and those documents she did not have obviously on hand.
How it used to happen in the past is that in these kinds of cases whenever, in short, there is no marriage certificate, the police would get involved. The police would get involved because the hospital does not have these documents. The internal protocol, I guess, with the hospital is they needed to call the authorities, the authorities here being the police, because giving birth to a baby without a marriage certificate in the U.A.E. at that time was a criminal offense which falls under the jurisdiction of the police as a starting point. So, the police would normally get involved, and the mother would go with the police either at that point in time straight from the hospital or at some point in time would be required to appear at the police station and give testimony.
I say “in the past” in two different ways, one before the law changed, but also before the pandemic. For the pandemic, there were often more immediate criminal sanctions in the way that not only would the mother go to the police, but there might have been some temporary jail sentence or a stay in a jail, at least at the police station, until the file was being opened and populated with some sort of testimony. Then, she would be released on bail until the police ended the investigation and it gets transferred to prosecution.
But because of the pandemic, and she did give birth in May, as you said May 2020, which is in the thick of the pandemic when the country had just shut down, so in a way that played into her favor on two different fronts, one with regard to the documents for the hospital, and two with regard to her visit and her interaction with the police.
With regard to the documents through the hospital, this woman is from the Philippines and she did have what is called a common-in-law husband in the Philippines from whom she had children, but they were never married. But at the very least, she had a copy of his passport that she could present to the hospital and in the past the hospital would have required either the original passport itself or a legally attested copy of the passport. Now, because of the pandemic, those services were not available and legalizing documents was not an option because the embassies and consulates were not legalizing documents. They limited their services only to the really urgent services, and because of that the hospitals knew that they could not expect to have original documents or legalized documents or even perhaps have the father be present because the country was closed. The world was in lockdown.
So, there were a few factors that played into her favor where she was able to at least present some kind of documents or just copies of documents and not be questioned too severely because of the pandemic. On the other hand, the police also were only really focusing their limited resources at the time on the most urgent issues, and this was obviously not one that was a public safety issue or where they wanted to dedicate many resources, and so even her interaction with the police was limited, staying, for example, even the temporary jail sentence, or the stay in jail was no longer required because the police were really limiting who they would bring into the police station and who they would hold on their premises. So, that also played into her favor because of the pandemic.
The third factor that played into her favor, because of the pandemic everything moved a lot slower in terms of the police getting involved and her giving evidence of to the police and for the police to review the process, the evidence, and the files. Then ultimately, the way these kinds of criminal cases work in the U.A.E., is first they with the police. The police do its own investigation and populates the file with whatever evidence. Then, if they feel there is enough evidence for it to actually be a case, it transfers to prosecution. Then the prosecution reviews the evidence and either dismisses the case if it does not have enough evidence or does further investigations and then ultimately argues it to the court. It is a three-step process. You have the police, you have prosecution, and then you have the court.
What happened here is because of the pandemic, everything was moving slower, which played significantly to her advantage. By the time the police finished their investigation and was ready to close or transfer the file to prosecution, the law had changed. The law changed in September 2020 just three months after she delivered the baby. While the law changed in September, at least on the books, the world and the country did not really become aware of it in the ways that we are obviously aware of now until about December or so of 2020. By the time her file was transferred to prosecution by the police, the law had changed and the day the prosecution received her file from the police, the very same day, they opened a file or a case which they were administratively required to do, and they closed it that same day. They needed to have a case file in order to be able to open and close it. The prosecutor closed it on the grounds that this was no longer a crime.
It was a very interesting turn of events, in particular because it applies to an event that used to be a crime, and it happened before the law changed. In legal terms, while it is expected that the new law would apply prospectively to all things that happened after the law was introduced, here it was also applied retrospectively to an event that happened before the law was introduced and which was criminal. Really there were a number of factors that played to her advantage because, if it were not for the pandemic, upon discharge from the hospital she would have ended up with the police and then ultimately in jail which was the previous method of dealing with these kinds of cases.
Tim Elliot: It’s interesting because back in September last year we were aware that things were starting to change in the legal system, and there was a number of things happening. We have done lots of podcasts on that. And that leads to a criminal case being dismissed, but there is still no birth certificate for the baby. So, in the absence of a marriage certificate, in order to get that birth certificate, you had to file a court case.
Ludmila Yamalova: Yes. The first and the biggest hurdle, and that is for this particular event to be considered a crime, was ultimately resolved because it was no longer a crime. That was a huge relief and a huge burden off her shoulders and our shoulders. The first part of it, this is no longer a crime. I don’t need to go to jail, and I don’t need to go to jail with my baby. As a result, serving time in jail, especially with a newborn, is quite an experience obviously, and then the result without have been deportation after that. So, the first realization, it is great that I don’t need to go to jail. Hooray!
Once that passed, okay, but now I am happy to go. Now I am going to back home to the Philippines. But to go back home to the Philippines, the baby needs to have a passport to go. The baby needs to have a legal identity. To have a legal identity for the baby, and in particular to apply for a passport, the baby needs a birth certificate. That is when the issue of the birth certificate really came into light. The hospital still would not produce the birth certificate.
I want to clarify one thing. It is not the hospital that produces the birth certificate. It is actually the Ministry of Health that issues it, but the hospital is a moderator, I guess, in the process. In the past it would be through the hospital that you would make the application for the birth certificate and it would be through the hospital that the birth certificate would become available. But it is not the hospital itself that issues the birth certificate.
The hospital obviously wasn’t able to give her a birth certificate because in the eyes of the hospital she still had not produced the right documents in order to submit the application. This is where we got involved more significantly and tried to understand perhaps what we were hoping the new protocol would be for the issuance of the birth certificate. In short and in legal terms, there are specific regulations that govern the issue of birth certificates, and these regulations, importantly, are a separate source of a legal authority than, for example, the criminal law which had changed.
The criminal law, in particular Article 356, changed by virtue of the change in the language which in the past had penalized any kind of relationship that was called an assault on honor, even if consensual. The new wording of the law ultimately only penalized assault. It was no longer an assault on honor, even if consensual, but just mainly physical assault or rape. So, while the fundamental law changed, the regulations on issuance of the birth certificate was a different source of law that had not changed.
In relevant terms, the regulations as part of the application for the birth certificate require all the details on the father, and that is the passport of the father himself, and at the very least if the father is not available, the legalized original copy of the father’s passport and OC and ID and other documents on the father, and the original marriage certificate which has to be at the very least six months from the time that the marriage occurred and the baby arrived in order for it to be considered legal or valid for purposes of issuance of the birth certificate.
These are the regulations that are very detailed in terms of what the authorities will require from parties before they can issue a birth certificate, the authority being the Ministry of Health, and those regulations have not changed. Therefore, the hospital could not, in legal terms, do very much of anything because they needed to follow the regulations, and the regulations required a marriage certificate, among other things.
So, we approached the Ministry of Health and worked from different angles with trying to identify a representative from the Ministry of Health who could shed some light about how they are going to handle these kinds of cases now that the fundamental law has changed. In short, once again, they were limited in what they could do because the regulations which govern the issuance of birth certificates and in particular to which the Ministry of Health is subject to have not changed. They are not a judicial authority to be able to change those on their own just because the fundamental law has changed.
Tim Elliot: So, you then decide on a strategy that you would file a court case to issue a birth certificate for Ann’s child without naming a father in it. That strikes me as being kind of a brave new world, isn’t it?
Ludmila Yamalova: It is a brave new world, and the reason we decided – though it was not so much a matter of decision – it had to be done. There were no other options. Because as part of the requirements in these birth certificate regulations is that if there is no father, or there is no marriage certificate, or the marriage certificate is less than six months, or any other kind of circumstances that basically fall outside of the norm, then what you need to submit in exchange in lieu of the marriage certificate is a court decision. The requirement of submitting some sort of a court decision is also part of this birth certificate regulation.
While we were hoping that requirement would go away in accordance with the substantive law changing, it has not gone away still today. Therefore, the only option was to submit a document in lieu of the marriage certificate and the father’s passport that was a court document. While we tried to see if we could reason with the authorities and do it without a court document, ultimately, it was obvious that the only option right now is to follow the process as it always existed, so the court process.
Now, what did change, however, with the court process, is there is a fairly new judicial tool that is now available and has been used quite frequently for other kinds of matters called an order on petition which is an expedited judicial tool. It is not your full-blown court case. It is also done through the court, but it is an expedited process. For example, the first stage does not require the party or the defendant to be served, which in itself used to take quite a bit of time and procedural headache just for the case to start. The order on petition does not require that, and so we chose, after much research, to proceed with the order on petition which, in relevant terms, you file a case against some other party and then the court issues a decision at least by law within a day or two. Then once the court issues a decision, unless it has some questions along the way, once you have a decision, then you serve the decision on the other party. Because of that, it is less confrontational approach, and it is obviously a lot more expeditious.
We chose to proceed with this order on petition.
Step 1 was to file a court case.
Step 2, what kind of a court case? It was going to be an order on petition.
Step 3, who are we filing the case against?
There is a concept in the U.A.E. legal system which has been used in the past for similar cases like this, and it is called proving of lineage where ultimately you go and file a case against the father. On this case, we didn’t really have an identifiable father. There was not even a proving of lineage. It was not an option that we could really exercise because we could not come up with some hypothetical being out there. In legal terms, that was not going to work.
But at the end, we thought logically. Who is it that we want to be the party? The party is the ultimate authority that would issue the birth certificate. In this case, the ultimate authority that issues a birth certificate is the U.A.E. Ministry of Health. Since we did not have the father to file a case against for proving of lineage, the only other option for us was to go and file a case directly against the authority that would issue these documents because ultimately as part of the case what we would request from the court is a decision, an order to the authority to issue a birth certificate, so the authority of the Ministry of Health seemed like a logical candidate. I am not sure if it has ever been done before. There is a lot of debate internally about doing that.
At the end, because of this format of this judicial tool being the order on petition, it is truly not an adversarial kind of a relationship. It is mostly administrative. If the authorities thought it was improper, they would tell us so, and we would know, and since we are truly in the thick of legal history in the making, we thought this would be an interesting opportunity for us and for the courts ultimately to learn and set a precedent.
Tim Elliot: Let’s just quickly hear from Ann once again on how she hopes that if this does set that precedent that it is good news for others in a similar situation.
There are like 200 more of us here, and I am the only one who got the birth certificate at the moment. So, if this would help others in the process to get the birth certificate, it would be really a big help for them to have at least a guide on what to do and then where to go. Because like me, they are also very stressed at the moment on how to keep up with the daily expenses for the babies and they also want to go home. If I was able to get one with the help of Madame Ludmila, then I hope they all can get one as well so they can also all go home.
That’s Ann once again on the precedent that her case may well have set. So, the court ultimately issues an order to the concerned authority, the Ministry of Health in this case, to issue a certificate. So, you have kind of created, or been able to use, procedure. Because ultimately it turns out that this is a procedural step, isn’t it, in legal terms, Ludmila?
Ludmila Yamalova: Yes. Yes. It’s a procedural step. The court still needed to review the substantive documents in order to decide basically what order to issue, but it is a procedural step. A procedural step, that is, we needed a court document to give to the authorities so that they would issue the birth certificate. In order to apply for this court document, we needed to actually file a case and submit documents as part of the case. It was interesting in this particular case because in addition to submitting the documents, what are the documents we are submitting to the court? It is Ann’s own identification documents, passports and such, and also we submitted the history of the case and the relevant documents from the police file, and we did this because our request to the court was to please issue an order for the issuance of the birth certificate in the name only of the mother. There is no father, and the reason there is no father, we substantiated that with the relevant excerpts from the police file. Because how do you ask the court to issue a decision to the Ministry of Health where there is only one parent? You need to be able to justify it. So, as part of our substantive case in this procedural step, we also argued that the birth certificate should be issued only in the name of the mother and justified that in some reasonable terms, which we did through the relevant excerpts of the police file. Yes, at the end, the court issued to – I have to tell you, really truly, to our surprise and it was a very big day in the office and a massive cause for celebration, it was a very happy day in the office because we received the court order that with that very decision – to the Ministry of Health to issue a birth certificate in the name of the mother only.
Also, as part of this decision, what we also found quite groundbreaking was because of the previous criminal case there was a lot of confusion and there were different facts and different names in the police file itself, there was a mismatch between the names of a potential father and such, and in fact, there is another document before the birth certificate was issued, and it is called the birth notification which is used as a foundational document before the birth certificate is issued, and in this birth notification document there was a name of a different man that was already included. So, through this court process, not only were we requesting for the Ministry of Health to issue the birth certificate but also to correct an already existing record where there was the name of a man that appeared in the birth notification which was not the correct person. We asked the court to please correct that record and asked for the hospital to amend the birth notification and remove the name of that man and on the back of that, issue the birth certificate which obviously only has the name of the mother. The court issued the decision exactly mandating that. That is what happened. A very happy day in the office.
Tim Elliot: Ludmila, I don’t often ask you personal questions because I feel that this is a professional relationship, of course, but just tell me, what made you take this case on? Because I should point out that Ann was not in a situation where she was able to hire a legal team. You did this pro bono, i.e., for no money.
Ludmila Yamalova: Indeed. Yes. We did it pro bono. The reasons were multifaceted. One is perhaps, as unlikely as it may sound, this is a cause that we as legal practitioners care about. I have been practicing law in the U.A.E. for the last 14 years and have heard a lot of stories and seen a lot of cases that used to lead to rather severe circumstances or consequences. Peoples’ lives would be turned upside down. And it is not just the life of the mother, but it would also be the life of the father and ultimately the baby. It’s a cause that was dear to us as legal practitioners, and so we were very excited and very welcoming of the legal change. That in itself, for the substantive, and then on a personal level, this was a huge announcement and a huge development for us, and we are excited about it.
On the other hand, as legal practitioners we also wanted to see what it really meant in real life and how it would be applied and how quickly it would be applied. There is also professional curiosity and inquisitiveness to understand and see how this very, very new law would apply and how quickly. This particular law was so important because emotionally and psychologically and culturally, this is an issue that very few people thought would actually be changed so quickly and to this extent.
In fact, the cultural perception and perhaps psychological perception still remains to this day where a lot of people believe that this is not the case, that a pregnancy out of wedlock is still criminal, and even in our search to try to figure out the best way to issue a birth certificate we spoke with many representatives, from government representatives to police representatives to regulatory representatives to even other legal minds, and still it was quite interesting to see how the perception remains, the perception that it is still a crime and that there will be severe consequences.
For us, therefore, it became also a matter of professional curiosity and determination to show that it is not the case. The law has changed, and therefore, we need to change perception, but to be able to really speak about that with that level of confidence, we needed to have an actual case at hand. So, there was a personal motivation, a professional motivation, and also there was, I guess, a social reason, and that is this particular person we knew about through a contact, a client of the firm, and she was a natural person for us to want to help. I knew this person because she was of tremendous help to a friend of the firm who I care very deeply about, so I wanted to help. I also wanted to help our client, the friend of the firm, and my personal friend, and this particular person, Ann, that is, she was extremely helpful and a tremendous support for my friend, so I just wanted to personally be able to help.
Tim Elliot: Here is Ann once again.
So, when my case was dropped, they approached me. They wanted to help me out with getting the birth certificate for the baby. Thankfully, they did what they had to do. Yea. It was successful, just to have all the loving people behind me as well, if I didn’t, I don’t think I’ll would have been able to survive all this.
Ann there, and you can really hear the emotion because, I mean, one of the things I should point out, at the time of recording, we are not even in the middle of August 2021, the birth certificate was issued on August the 2nd, not even – what? – 10 days ago, Ludmila?
Ludmila Yamalova: Yes. It’s really a very emotional result and an emotional time because it has taken over a year for her to actually have some kind of legal documents for her baby, for the baby’s legal existence, and now with these documents she has the ability to leave the country and start a new life. That is what she is choosing to do. She is going back home to the Philippines with her baby. She will have a family and that is so incredibly exciting. That is after ultimately a miserable year. Something in a miserable year which stemmed from what should have been a very happy moment in life, i.e., the birth of the baby, but because of the legalities surrounding these kinds of events in this country, it ended up being a very challenging and very emotionally difficult year.
There are other aspects to this that also cause and might make it so emotional is that, as we know in this country, we can only live and sustain ourselves if we have a job and we get paid. But because of the different aspects of this particular case, she could not use her visa because for so long her passport was with the authorities, and obviously, her visa had expired, so she had overstay fines, and she did not have an actual visa to work and to earn a living. Now you have a baby to take care of and the baby could not have medical insurance coverage because the baby does not have a legal identity. Ann did not have the ability to really properly earn a living, not only for her baby but even for herself because of the challenges to her own legal status in the country, in particular immigration. So by the end, fast forward a year plus, a year and a half later, now she finally has the birth certificate in hand and on the back of the birth certificate – by the way, also we helped her with waiving immigration fines. When the court decision was issued, we went to the immigration authorities, and showed them the court decision and they were able to at least waive those fines. With this, and with the court decision with the birth certificate, and the waiver of the fines, now there is also the option of leaving the country without a criminal record, and so you can come back into the country. You can still come back and that is also another groundbreaking development to this new law, because in the past after you served your sentence for one year you would be deported, and the deportation was for life. At least now, that is no longer the only option.
The final reason and motivation for us doing this is because we know firsthand, full well, that there are so many other women out there that are affected by this. We thought if we can have a firsthand test case in our hands that we can share with the greater public, the greater community, and empower them, all those other ones to at least know that there is a light at the end of the tunnel and what the process is all about and how to follow it and help educate the public and hopefully allow them to help themselves because let’s face it, we are only a small team, so we could not take all of these pro bono cases ourselves, but certainly having done what we have done, we have the substantive information which is exactly what we are doing through this podcast is setting out a roadmap that would allow others to follow suite. That truly is perhaps the main reason why we are doing it is just to educate the public about what the new law is, what its implications are, and how to apply it to their own personal cases.
Tim Elliot: Let’s give the last word to Ann.
For LY Law and the whole team, I’m very, very thankful that they stepped in and helped me out, because I think if they didn’t, I wouldn’t be able to get what I needed for the birth certificate, because nobody could answer me on what I needed to do, actually only them, so I’m very, very thankful that they helped me through all of it and then it was a very successful effort for all of us. Thankfully, we are going home, thanks to them. Thank you for all the help!
Ludmila Yamalova: Well, it’s great to hear from Ann. I appreciate how emotional this case was for her. It was equally emotional for us, even though we were just her advocates in this case, but I am really pleased with the result. Ann’s own comments speak for themselves.
Tim Elliot: That’s another episode of Lawgical, this time a recent case in which Ann received a birth certificate for her baby despite being unmarried here in the United Arab Emirates. As always, our legal expert here on Lawgical was Ludmila Yamalova, the Managing Partner here at Yamalova & Plewka in JLT. Thanks, Ludmila, for your time, and of course, for your legal expertise as well.
Ludmila Yamalova: Tim, thank you very much for having this discussion with me and with Ann. It’s a very groundbreaking development in our history, and we are very excited to be able to share it, and you are the perfect man in control to break this news to the world.
Tim Elliot: I appreciate the thought. It’s easy to find us at LY Law on social media. We’ve also now got an easy to search library of hundreds, and I mean that, hundreds of podcasts, on all manner of legal issues and precedents in some cases here in the U.A.E. that are free to listen to. To have a legal question answered, however, in a future episode of Lawgical, or if you’d like a consultation with a qualified U.A.E. experienced legal professional, just click the Contact button at LYLawyers.com.
