Re Al M: an oasis of transparency in a desert of secrets – Athalie Matthews

There was never going to be anything ordinary about a custody battle between the billionaire ruler of Dubai and a Jordanian Princess.

Even so, the judgments in the recent case of Re Al M are extraordinary, not only in their implications for the futures of both parties and their families but for their novel application of the law surrounding the identification of children in family proceedings, the law of privacy and the evolving judicial approach to publicity in the family court.

In a complete departure from the ‘normal’ dynamic in family proceedings, the President of the Family Division of the High Court has ruled that the children in the case should be identified by name, the proceedings should be widely reported in the press, and the world should know the truth about how the applicant in the proceedings, one of the most powerful men in the world, has apparently treated three women in his family.

The case began in May 2019 when Sheikh Mohammed bin Rashid Al Maktoum, the Prime Minister of the United Arab Emirates, applied to the High Court for the return of his two youngest children, Jalila, now 12, and Zayed, now 8, who had been brought to England by their mother, Her Royal Highness Princess Haya bint al Hussein in early 2019.  (The ‘inherent jurisdiction’ of the High Court is a common law power to hear cases where a child needs protection, no matter where they are, and is used in relation to cases involving wardship and international abduction. Hence, the Prime Minister and Vice President of the United Arab Emirates was able to become the ‘Applicant Father’ from 3400 miles away.)

However, and perhaps unsurprisingly for an Oxford-educated equestrian champion, Princess Haya responded by seeking a non-molestation order (which protects a party from violence, harassment and threats by someone with whom they are ‘associated’)  and a Forced Marriage Protection Order (which protects a person from being forced into marriage, or from an attempt to do so) in respect of the children.

Until recently, very little else was known about the case for two key reasons.

Firstly, in accordance with the Family Procedure Rules, the hearings were held in private with accredited members of the press permitted to attend but prevented by reporting restrictions from reporting all but the scantest information.

Secondly, after the court made an excoriating fact finding ruling against the Sheikh on 13 December 2019, he tried desperately to block it using every avenue of appeal open to him.

Following the Supreme Court’s rejection of his application for permission to appeal against the decision that the ruling should be public, on 5 March 2020 the court published the ‘fact finding’ judgment ([2019] EWHC 3414 (Fam)) which has had the perhaps unprecedented effect (in the court’s words) of ‘shining an intense light’ on the private and family life of the despotic leader of a friendly foreign state.

The world therefore now knows that the court found on the balance of probabilities that the Sheikh had orchestrated the abduction and forced captivity of two of his daughters, Sheikha Shamsa, now 38, and Sheikha Latifa, now 35, and conducted a campaign of fear and intimidation against Princess Haya which included having a gun left on her bed, threatening to take away her children and attempting to abduct her by helicopter.

A further judgment (Re Al M: Publication ([2020] EWHC 122 (Fam)) – about why the fact-finding judgment should be made public – has also now been published, revealing two particularly novel applications of the law of the land by the English family court.

The naming of the children

Flying in the face of the usual prohibition on the identification of children in family proceedings, the court decided in Re Al M: Publication that the publication of the names, ages and genders of Jalila and Zayed was actually necessary ‘to provide a level of increased protection for the children’ lest their father should attempt to have them returned to Dubai.

This open approach is the antithesis of the starting point in English law set out in section 12 (1) of the Administration of Justice Act 1960, under which it is a contempt of court to publish ‘any information’ relating to proceedings involving the inherent jurisdiction of the High Court involving minors. Further, section 97 (2) of the Children Act 1989 prohibits publication of any material which is intended or likely to identify any child being involved in any proceedings under the Act (or under other relevant legislation).

Paragraph (4) of the Act does however provide that the court can dispense with the prohibition ‘if satisfied that the welfare of the child requires it’, as was, unusually, the case here.

As the court observed:

‘The natural inclination of the court, indeed it is the default position under the law, is that the identity of children involved in family proceedings should not be identified. In this case, however given the wide knowledge that exists concerning this family and the ready access there is to the names, ages and genders of the children on the internet, it is wholly artificial for the court to prohibit disclosure of this information if the fact finding judgment is to be published. Indeed part of the rationale in favour of publication is to provide a level of increased protection for the children and it will be less effective if there is doubt as to their identity.’ [91]

Privacy inside out: publicity was necessary to protect the right to private and family life

The court’s interpretation of the ‘Right to respect for private and family life’ enshrined in Article 8 of the European Convention on Human Rights was also highly unusual.

The ordinary dynamic in the family courts tends to be that both parties oppose publicity – and accordingly the privacy rights of the family (the ‘Article 8 rights’) are pitted firmly against the right to freedom of expression advanced by the media under Article 10.

However, in this case, both the children’s mother and the press were united in wanted the rulings made public, with only the father – unsurprisingly – seeking to maintain that keeping them private was in the best interests of the children. As summarised by the court:

‘The mother’s overall position is that there is no conflict between the Article 8 rights of the children and herself, on the one hand, and the Article 10 case put forward by the media on the other; both are said to point strongly to publication….’

The national newspapers with an interest in the case submitted that:

‘This case fits into and properly forms part of a wider and very extensive ongoing public debate on a topic of grave public interest, namely the deterioration of the human rights situation in the UAE, the extent to which its rulers are breaching international human rights law notwithstanding their membership of the UN and the UN Human Rights Council; and whether the ‘tolerant’ oasis the UAE promotes itself as, is a sham.’

The court agreed, ruling that the case in favour or publication was: ‘strong to the extent of being almost overwhelming..’

In doing so it inverted the usual interpretation of the right to respect for private and family life to find that publicity was actually necessary to enable this particular mother and her children to live their lives free from social ostracism, fear and potentially (in the case of the children) removal from the jurisdiction. Sir Andrew McFarlane P ruled that:

‘…in the wholly unusual circumstances of this case, I consider that widespread media publicity with the aim of presenting the facts as found by a judge in a court of law is a necessary step in order to meet the private and family life needs of the mother and the children. The purpose of the publication is to correct the false narrative that has been generated and currently surrounds their ability to have any form of family, private or social life outside the immediate confines of their home.’

This conclusion was upheld by the Court of Appeal ([2020] EWCA Civ 283).

A thousand and one reputational nightmares for the Applicant

The resulting headlines are a cautionary tale for any litigant unfamiliar with the rule of law who may be considering toying with a jurisdiction so singularly dedicated to upholding it.

Whilst there had long been mounting international concern about the Sheikh’s suspected treatment of Shamsa and Latifa and the odd brave press report, the media had largely stopped short of making highly libellous accusations against a man with some of the deepest pockets in the world.

Prior to publication of the court judgments therefore, the world was in the main reliant on a haunting YouTube video pre-recorded by Latifa in 2018 before her second failed escape attempt, for some idea of what it meant to be a member of Sheikh Maktoum’s family.

This reluctant media reticence has now been replaced – due to the immunity enjoyed by the press when fairly and accurately reporting court judgments – with a flood of damning headlines including: ‘Kidnap, Imprisonment and Torture, How the Ruler of Dubai Went to War with His Sixth Wife in a UK Court – and Lost’ to ‘Police to review inquiry into 2000 disappearance of Dubai ruler’s daughter.’

It is hard to see how in light of this Sheikh Maktoum’s reputation – or the much-prized niche he had carved at the heart of the British Establishment – can ever be restored.

Whatever the case, the seeds of hope appear finally to have been planted for two missing Middle Eastern princesses in the unlikely soil of the Strand.

Athalie Matthews is a Senior Associate in the Reputation Management team at Farrer & Co