In this blog, Family Law in Partnership associate Hannah Greene and Legal Assistant Matilda Pigneguy analyse the range of orders sought by the parties in the legal battle between Princess Haya and her husband, Sheikh Mohammed Bin Rashid Al Maktoum, the Ruler of Dubai.
The case between Princess Haya and the Ruler of Dubai initially heard in the Family Court Division of the High Court in London at the end of July, has been set to be heard further in the English courts during the week commencing 11 November 2019.
Princess Haya has sought a forced marriage protection order for one of her children together with a non-molestation order and a wardship order, the latter of which it is said Sheikh Mohammed is contesting who in turn is seeking the summary return of their two children to Dubai.
Would the Sheikh have had a more powerful case had he had the power of The Hague Convention on his side?
It is believed that the initial application made by the Sheikh may have been filed in Dubai before being transferred to the High Court in London.
The United Arab Emirates are not a party to the multilateral treaty known as the Hague Child Abduction Convention (the Hague Convention) which if they were, may have had a drastic impact on how this case was dealt with.
The Hague Convention’s primary aim is to preserve child arrangements which were in force immediately before the supposedly wrongful removal or retention was made. The convention does not alter any basic human rights but regulates which country has the jurisdiction to make the decision as to where the child is habitually resident. The Hague Convention then ultimately requires a return of the children to that country. As the UAE is not a signatory to the 1980 Hague Convention, the case will be heard under English law. In fact within the MENA region only Iraq, Israel, Morocco and Tunisia are currently Hague signatories therefore the Sheikh will have to rely on the discretion of the High Court in his request for an order of the summary return of the children to Dubai. It goes without saying that the Sheikh would have been much assisted by the power of the Hague Convention were his country a signatory to it.
Under the Hague Convention, any applicants for return of a child are entitled to non-means tested legal aid in whichever country that child has been wrongfully retained. Should the Sheikh have been applying for the return of a wrongfully retained child to country which was party to the Hague Convention, despite his immense wealth he could have done so with legal aid funding.
Under its inherent jurisdiction, it is the duty of the court to ensure a child is protected. Should a wardship order be made, the child who is the subject of the order will become a ‘ward of the court’ which in effect results in the court becoming the legal guardian of the child. This puts the court in the position where it takes over the Parental Responsibility from the parents. Although this is an unusual step in domestic cases, this is a common step taken in disputes containing an international element and is an order which can only be made in the High Court. Interestingly, a child who is a ward of the court may not be removed from England and Wales without the court’s permission and therefore in this case, would ultimately prevent the Sheikh from taking the children out of the jurisdiction without the court’s permission.
The other orders sought by Princess Haya:
A forced marriage protection order (FMPO)
Forced marriages have featured heavily in the news in recent months and the use of forced marriage protection orders in the UK is rising. It is said that more than 1,800 forced marriage protection orders have been made in the last 10 years and the UK itself saw its first successful prosecutions last year with 126 orders being issued in the first quarter of this year. The Home Office reports that they have seen a 47% increase in reported forced marriages this year alone.
The forced marriage protection order extends the court’s principle that the welfare of the child is always paramount and aims to protect children’s freedoms in other jurisdictions. The relevant legal statute is the Family Law Act 1996, which deals with injunctions. Interestingly in this case, Princess Haya has asked the court to make orders regarding children who are not habitually resident in England.
There are three classes of person who are able to apply for an FMPO, and these are:
- The child themselves;
- A parent or associated person (most likely a family member); or
- The local authority.
The court is able to make forced marriage protection orders which not only prohibit travel to other jurisdictions but also require parents to arrange the return of children to England. Of course, an order for return may run into issues should the child be in a country which is not party to the Hague Convention such as the UAE. Such orders have been made to return children from Pakistan, which became the 96th signatory to the Hague Convention in December 2016.
The court has the power to make an FMPO without notice, but when considering whether one should be made they must apply the criteria in section 63A of the Family Law Act 1996 and be satisfied on the available evidence that the order is necessary and proportionate. Although a without notice FMPO is a ‘very serious step’ (Williams J: West Sussex County Council and another v F and others  EWHC 1602 (Fam) (22 June 2018), the court has the power to make such orders where the case is robust – i.e. where the court is satisfied there is high risk of harm to a minor.
When deciding whether to make an FMPO the court must:
- ‘have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected’ (section 63A(2), FLA 1996)
- ‘consider the wishes and feelings of the person to be protected, so far as they are ascertainable and it is appropriate to do so in light of that person’s age and understanding’ (section 63A(3) FLA 1996).
Whilst the couple themselves have released a statement to confirm the case has nothing to do with their separation or divorce and is only to do with the children, Princess Haya has apparently sought a non-molestation order for herself. Non-molestation order are injunctions made by the family courts to safeguard an associated person and/or a relevant child. There is therefore some ambiguity at present as to whether Princess Haya has applied for such an order to protect herself, her children or in fact both.
The Family Law Act 1996 makes provisions for several types of injunction and the most common ones are Non-Molestation orders (NMOs) and Occupation orders. These injunctions have the power of arrest attached to them, which means if a respondent breaches such an order, the police are able to immediately arrest them.
It is advisable where one obtains an NMO or Occupation order to notify the police, so they are aware of their obligation to arrest the respondent should they breach the order. NMOs are often applied for where the applicant has been harassed by a former partner, and can have provisions which prohibit the respondent from verbally or physically harassing the respondent, and in some cases even from contacting them.
The court also has the power to grant an Occupation order – which prohibits the respondent from returning to the family home. In order to grant an Occupation order, the court must consider the balance of harm test which sets out the court’s duty to balance the harm caused to the applicant, the respondent and any children, if the order is or is not made. For example, if an occupation order leaves a respondent homeless, this harm may outweigh the harm to the applicant. It has been reported that Princess Haya is living in an £85 million property in Kensington. Should this property be owned jointly with the Sheikh she would have to seek an Occupation order to exclude him from her Kensington home.
Princess Haya’s choice of sanctuary in England should come as no surprise to those familiar with the protective measures offered by the English family court. The English focus is decidedly on the welfare of the children and places this above any rights of the parent. Although the Sheikh is clearly a powerful individual – the Family Court of England and Wales will need to consider all the facts through the prism of the children’s welfare rather than the Sheikh’s rights as a father. It is telling that in England, we refer to ‘Parental Responsibility’ rather than ‘Parental Rights’.
The collection of applications that Princess Haya has made flag up that she contends a return to Dubai is of high risk and consequence for her two children. The court will need to consider all the aspects carefully before making a final decision about whether they will grant the Sheikh’s application to return the children, or Princess Haya’s application which would see the children remaining in England indefinitely.
This article written by Hannah Greene and Matilda Pigneguy is also published on Family Law, Lexis Nexis.
For information or advice regarding any of the topics discussed, please contact any of our top London divorce lawyers at Family Law in Partnership on 020 7420 5000 or contact us at: firstname.lastname@example.org