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C. Separation from parents

124. Article 26 of the Constitution provides that: “The family, which is rooted in religion, morality and patriotism, is the cornerstone of society and the law shall protect its structure and strengthen its ties.”

125. Article 12 of the Rights of the Child Act stipulates that: “The law shall guarantee to every child the enjoyment of his or her legitimate rights, in particular the right to establish his or her parentage, to be breastfed, nurtured and maintained, and to see his or her parents, in accordance with the provisions of this Act and the laws in force.”

126. Measures adopted to that end: family relationships are regulated by the provisions of the Personal Status Act No. 20 of 1992, as amended, which cover the relationship between spouses and the obligations of each spouse towards the other with a view to thus bringing about devotion, compassion and family cohesion. Article 34 provides that custody is reinstated to the person who forfeited the right thereto when the reason for the forfeiture no longer applies.

127. Article 141 of the Personal Status Act provides that the mother has a greater right to custody of her children after divorce or after the death of her spouse.

128. Article 142 also affirms that if the mother dies or if her right to custody is invalidated, custody is transferred to the maternal grandmothers and if they are unavailable, to the minor’s maternal aunts, followed by the father and then the paternal grandmothers. If they are unavailable, it is then transferred to the mother’s paternal grandmothers, followed by the child’s sisters, maternal female cousins, nieces from a sister, nieces from a brother, paternal aunts, paternal female cousins, the father’s paternal aunts, the daughters of the father’s paternal aunts and the daughters of the father’s paternal uncles in that order. If no women are available, custody is transferred to the nearest male agnatic relative, in the absence of which it is transferred to the nearest male uterine relative and thereafter in the case of absence to nonagnatic relatives and then to uterine relatives. At each degree, the relative who has two causes in her or his favour takes precedence over the relative who has only one and maternal relatives take precedence over paternal relatives. All being equal, custody is given to whoever is most fit to assume the task and if both are equally fit, it is for the judge to override the order of precedence in regard to the award of custody if he believes that it is in the interest of the minor to do so.

129. If the period of custody ends and the child is self-sufficient, he or she chooses between his father and his mother in the event of dispute between them, bearing in mind his or her interest. If carers other than the father or mother are in dispute, the judge shall choose the person who will benefit the interests of the child, having first sought the opinion of the minor.

130. The Civil Code stipulates that a person attains legal majority on reaching the age of 15 years, provided that he is in possession of his mental faculties and is rational in his behaviour at the time, in which case he has the legal capacity to exercise and administer his civil rights. An older age at which a person is entitled to exercise or enjoy any other rights may be stipulated in special laws, as underlined in section 3, articles 27 to 35, of the Rights of the Child Act, which explicitly refers to the right of the child to enjoy full custody and care in such circumstances as the child or the family may find themselves.

131. In according this right to the child, the above legal provisions have helped separated couples to resume their previous marital life where they come to feel that the rift in the conjugal relationship should be repaired in the interest of the child. There is no legal provision to prevent the child who is separated from one or both parents from regularly maintaining a personal relationship and direct contact with either parent. In fact, the Yemeni legislator ensures to the child the right to maintain a regular personal relationship with both by emphasizing to parents that the child must be availed of that right.

D. Family reunification

132. Family reunification is not prevented under any legal provision; the Nationality Act guarantees rights for the children of any expatriate holding Yemeni nationality on his departure from the national territory who has not relinquished that nationality in accordance with the law at his explicit request, even if he has acquired the nationality of the country of his residence and is entitled to freedom of movement and of travel to and from the country.

E. Illicit transfer and non-return of children

133. Article 249 of the Penal Code explicitly provides for the punishment of any person who commits such an act by prescribing a penalty of up to five years’ imprisonment for anyone who abducts another person. If the victims of the abduction are female or male children who are of young age, insane or suffering from other psychological problems and illnesses, or if the abduction is affected through the use of force, threats or deception, the penalty is a term of up to seven years’ imprisonment. If the abduction is accompanied or followed by bodily harm, assault or torture, the penalty is increased to a term of up to 10 years’ imprisonment, without prejudice to the right to retribution (qisas) or indemnity for bodily injury (diyah) or for the shedding of blood (arsh), as the case may be, if such is warranted by the harm caused. If the abduction is accompanied or followed by a murder, adultery, prohibited sexual assault or sodomy, a harsher penalty, which can be as high as the death sentence, is imposed.

134. Article 3, paragraph 4, of the Rights of the Child Act also emphasizes that children must be protected from all types of exploitation, which, under the Act, are regarded as acts constituting a criminal offence.

135. Article 147 of the Rights of the Child Act underlines the role of the State in protecting children from all forms of sexual and economic exploitation and stipulates that it must adopt stringent measures to protect children from engaging in any immoral activity. Article 155, paragraph 3, provides that: “Any person who deliberately sets about to conceal a child or substitute one child for another or hand over a child to anyone other than the child’s parents shall be punished with a term of imprisonment of up to two years.”

136. Measures adopted to that end: In order to counter the problem of transfer of children abroad through various ports, the Government has adopted preventive security measures in that no passports are issued to children until after precautionary measures have been taken to ascertain the identity and person of whomsoever submits the passport application and his relationship with the child’s family. These measures include the following:

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  The passport applicant is required to present an official letter from his employer;
  
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  The passport applicant is required to provide any certificates or other evidence to prove that he is a relative of the child;
  
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  Control posts have been put in place to monitor all points of entry by land, sea and air.