Last week, the President of the Family Division of the High Court, Sir Andrew McFarlane, refused an application made by the ruler of Dubai, Sheikh Mohammed Al Maktoum, for an order to impose reporting restrictions on applications made to the High Court of England and Wales by his estranged wife, Princess Haya Bint al-Hussein.
As a result of the court’s refusal to order reporting restrictions, it is known that Princess Haya has applied to the court for a Non-molestation Order to protect against domestic violence and for Forced Marriage Protection Orders and wardship orders in respect of their two children. Sheikh Mohammed has applied for an order for the children’s summary return to Dubai under the inherent jurisdiction of the High Court. It is not known whether any substantive orders were made by the court in respect of the parties’ respective applications.
Princess Haya, 45, initially fled to Germany from Dubai with the children to try to seek asylum there and is now living in Central London. Sheikh Mohammed has a total of 6 wives and 23 children. Princess Haya, the youngest of his wives, is reportedly the third female member of his court to run away from Dubai. In December 2018, one of Sheikh Mohammed’s daughters, Sheikha Latifa, made a mysterious reappearance after being missing for nearly ten months and the case attracted significant press attention.
The ongoing proceedings in the High Court have the potential to test not only relations between the UK and Dubai, but also between Dubai and Jordan, as Princess Haya is the half-sister of Jordan’s King Abdullah.
A summary of the parties’ respective applications and the law is listed below.
Non-molestation Orders
Non-molestation orders protect victims from being abused or subjected to domestic violence by the alleged perpetrator, including physical violence and/or threatening and intimidating behaviour. These orders are a type of injunction made under The Family Law Act 1996 and, if breached, carry a power of arrest together with a sentence of up to five years in prison.
Forced Marriage Protection Orders
Forced Marriage Protection Orders prevent a victim from being forced into marriage either in the UK or abroad and are designed to prohibit marriages which lack full, informed consent of either or both parties. Forced Marriage Protection Orders can be made before a forced marriage is intended to take place or after one has already taken place.
The court possesses a wide range of powers in respect to forced marriage cases, and there is a raft of protective orders that the court can make. For example, orders can be made to prevent forced marriages from taking place; prohibiting a victim from being taken abroad against their will; Non-molestation Orders; Occupation Orders and orders granting seizure of the victim’s passport for safekeeping.
Forced Marriage Protection Orders can be made against multiple parties to protect the victim from reprisals as a result of either refusing to enter into a marriage or taking steps to leave a marriage. Breach of a Forced Marriage Protection Order is now a criminal offence and is punishable by up to 5 years imprisonment.
Application for summary return under the inherent jurisdiction
A child removed by one parent to the jurisdiction of England and Wales from a non-Hague Convention country, without the consent of the other parent, remains subject to the common law of England and Wales. The left-behind parent can make an application to the High Court of England and Wales under the court’s inherent jurisdiction for the child’s summary return to their home jurisdiction.
The inherent jurisdiction is an overarching protective jurisdiction, which the High Court can exercise in respect of children who are habitually resident or physically present in England. The test for determining whether a child is habitually resident in a place depends on the facts of each case, but it is generally the place where the court considers that the child is settled and integrated into a social and family environment.
Applications for a child’s summary return often invoke wardship proceedings in the High Court. When a child is made a ward of court, the court takes over the ultimate responsibility for the child, sharing parental responsibility with the child’s parents and exerting control over important decisions.
The child’s welfare is the court’s paramount consideration when determining an application for summary return the court must apply the welfare checklist set out in the Children Act 1989, which is as follows:
The ascertainable wishes and feelings of the children concerned (considered in light of their age and understanding);
Their physical, emotional and educational needs;
The likely effect on them of any change in their circumstances;
Their age, sex, background and any characteristics which the court considers relevant;
Any harm which they have suffered or are at risk of suffering;
How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the children’s needs;
The range of powers available to the court under this Act in the proceedings in question.
If it is alleged that the child would be at risk of suffering harm upon their return then the English court would consider what protective measures could be put in place in their home jurisdiction to ameliorate against the alleged risk of harm, if a return order is made.
The family team at Bindmans LLP regularly assists clients with international family law issues, including cases involving domestic violence; forced marriage, abandoned spouses, child abduction and applications for a child’s summary return under the inherent jurisdiction. Please do not hesitate to contact our team if you require specialist advice in relation to a cross-border family dispute.