By a judgment handed down on 27 January 2020 and published on 5 March 2020 (the “Publication Judgment”) the President of the Family Division ordered the publication of two further judgments (the “Fact-Finding Judgment” and the “Assurances and Waiver Judgment”) in proceedings concerning His Highness Sheikh Mohammed bin Rashid Al Maktoum (the “Father”), Her Royal Highness Princess Haya bint Al Hussein (the “Mother”) and their two children. The Father sought to appeal the Publication Judgment, but by judgment handed down on 28 February 2020 (the “Appeal Judgment”) the Court of Appeal dismissed that appeal and refused permission to appeal to the Supreme Court. By a decision dated 4 March 2020 the Supreme Court (Lord Hodge, Lord Wilson and Lady Black) dismissed the Father’s renewed application for permission to appeal to the Supreme Court and awarded costs against him.
Her Royal Highness Princess Haya bint Al Hussein was represented by Baroness Shackleton, Ben Parry-Smith, Nick Manners and Katie Parkes of Payne Hicks Beach and a Counsel team led by Charles Geekie QC, Sharon Segal, and Lucy Maxwell of IGC Family Law. Guglielmo Verdirame QC and Kate Parlett of Twenty Essex acted on issues relating to immunity. Timothy Otty QC and Isabel Buchanan of Blackstone Chambers acted on issues relating to the assurances. Justin Rushbrooke QC and Kate Wilson of 5RB acted on the appeal in relation to publication issues.
In the Fact-Finding Judgment, the President conducted a fact-finding process on matters relevant to the welfare of the children. In particular, the Court enquired into whether the Father had:
ordered the unlawful abduction of another of his daughters, Sheikha Shamsa, from the UK in 2000 and her detention thereafter;
ordered the forcible return of another of his daughter, Sheikha Latifa, to Dubai in 2002 and 2018 and her detention thereafter; and, conducted a campaign of harassment against the Mother.
In brief summary, the President held that:
in the summer of 2000, Sheikha Shamsa was abducted from the UK by three or four men who worked for the Father, was forcibly removed from the UK to Dubai and was detained upon return;
in 2002 and 2018, Sheikha Latifa had sought to escape Dubai, was forcibly returned and was detained upon return; and,
the Father had acted in a manner from the end of 2018 which had been aimed at intimidating and frightening the Mother, and that he had encouraged others to do so on his behalf.
In the Assurances and Waiver Judgment, the President considered the weight that could be placed on certain assurances and waivers of immunity signed by the Father, the Foreign Minister of the UAE and the Director General of the Government of Dubai Legal Affairs Department. These assurances and waivers had been given by the Father and the UAE in order to meet the Mother’s concern that, as the Ruler of Dubai and Head of Government of the UAE, the Father’s position under international law could protect him (or others acting on his behalf) against any enforcement in relation to the possible abduction of the children from this jurisdiction. The President found that the waivers were limited and notably did not extend to persons acting on the Father’s instruction. Further, he found that there was no mechanism for enforcing the assurances that had allegedly been given by the Father and the UAE. The Court held that in these circumstances it was not possible to place any weight on either the assurances or waivers as providing the children protection from the risk of abduction.
In the Publication Judgment, the President held that the case in favour of publication of the Fact-Finding Judgment was “strong to the extent of being almost overwhelming” and that an additional reason in favour of the immediate publication of the Assurances and Waiver judgment was that it would “provide some measure of additional security for the protection of the children” and that it was “in the interest of the children and the orderly operation of the security services for the judgment to be readily available as soon as possible”.
In the Appeal Judgment, Underhill LJ (giving the unanimous judgment of the Court of Appeal) upheld the Publication Judgment, dismissing the Father’s two grounds of appeal and refusing the Father’s application to amend his Notice of Appeal to add a third ground of appeal on a point not argued at first instance.
Links to the four judgments may be found here: