International Family Law: The Sheikh and The Princess Part 2

The Sheikh and the Princess

Part Two – How good is a Sheikh’s Word?

Summary and commentary by Rob Webster, Solicitor

In our previous blog we summarised Sir Andrew McFarlane’s Fact Finding judgment in the case of His Highness Sheikh Mohammed bin Rashid Al Maktoum, the ruler of the Emirate of Dubai (hereafter referred to as ‘the father’) and Her Royal Highness Princess Haya Bint Al Hussein, (hereafter referred to as ‘the mother’).

For a link to our previous article, which includes a background to this high-profile case, please see here.

Following the Fact Finding Hearing, the Court was required to deal with a separate issue relating to the mother’s concerns that as the Ruler of Dubai and Head of Government of the United Arab Emirates (UAE), she feared his position in international law may protect him from the ordinary enforcement powers of the court were he to breach the terms of any UK court order made in respect of the parties’ two children. As such, the President of the Family Division was required to consider the weight and validity that should be applied to the following:

1. Assurances provided by the father to alleviate the mother’s concerns; and
2. Waivers provided by the father in respect of his various immunities as Head of Government and Ruler of Dubai.

The Father’s ‘Assurances’

The father provided to the court a formal document signed by him as ‘Vice President and Prime Minister of the UAE and the Emirate of Dubai’. The document was also signed by the Minister of State for Foreign Affairs and Director General of the Government of Dubai Legal Affairs Department. The document was addressed to the Foreign and Commonwealth Office (FCO) of the United Kingdom Government, to the court and to the mother.

The document recorded five assurances given by the father personally, by the UAE and by the Emirate of Dubai which were set out by the judge as follows:

(1) The UAE will not seek to invoke the father’s immunity as to the applications before this court, or his immunity or inviolability as to the execution or enforcement of any orders made in those applications;

(2) If any “special missions immunity or inviolability” is obtained for the father for a special mission to the UK, it will be waived for the purposes of the applications, including execution or enforcement;

(3) “Neither His Highness, nor any person acting on his behalf, nor any person acting on behalf of the UAE or the Emirate of Dubai will remove the children from the jurisdiction of England and Wales, unless in accordance with any order of the English courts made in the applications”;

(4) The children will be returned to the mother’s care after any period of contact in the UK in accordance with any order of this court made in the applications;

(5) The children will be returned to the mother’s care after any period of time spent with the father in the UAE, in accordance with any order of the English court made in the applications.

The Father’s ‘Waivers’

In a second document, again signed by the father as ‘Vice President and Prime Minister of the UAE and the Emirate of Dubai’, the Minister of State for Foreign Affairs and Director General of the Government of Dubai Legal Affairs Department, various immunities enjoyed by the father as a result of his position were said to be waived. These waivers were set out by the judge as follows:

(1) The immunity of the father as to the applications and only the applications is waived;

(2) The immunity of the father as to execution of any order made in the applications is waived;

(3) The inviolability of the father in relation to enforcement of any order made in the applications is waived;

(4) The inviolability of the premises of the father in the UK (including certain properties named in the waiver document) in relation to enforcement of any order made in the applications is waived.

The Parties’ Positions

The case as set out by the father’s legal team, following the assurances and waivers provided to the court, was that the they provided a:

robust, reliable and legally sound regime which will be sufficient for the mother and this court to have confidence that the father, and those responsible for the actions of the Emirate of Dubai and the UAE, will abide by the terms of any contact orders made with respect to the time that the father wishes to spend with the children.

In contrary, the court noted that the mother’s position was that:

both in terms of form and substance, neither the assurances nor the waivers have any value in terms of providing protection for the children or reassurance for the mother or the court.

The judge stated that the giving of formal assurances and waivers on behalf of a Sovereign State in relation to a private law application by a parent in children proceedings was “rare, if in fact unprecedented”.

The issue the judge was required to assess was what weight, if any, should be placed on the assurances and waivers provided by the father in the making of any order relating to the children and contact arrangements for them and the father in light of the risks raised by the mother and taking into account the facts found to be proven in the Fact Finding Hearing.

The Father’s Position

The father’s referred to the International Court of Justice case of Australia v France [1975], which related to declarations made by French authorities as to future atmospheric nuclear tests being carried out in the South Pacific. In that case, the court said that:

It is well recognised that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature if the juridical act by which the pronouncement by the State was made.

In the present case, the judge accepted the argument that a State may make a unilateral declaration, and if it was clear to that effect, it would be legally binding on the State as a matter of international law. As to the assurances provided by the father, the judge noted that they expressly stated that “these assurances are intended to be legally binding”.

The father also referred the court to the European Court of Human Rights case of Othman v UK (2012) in which the court provided a list of relevant factors to assist in evaluating whether or nor a State’s assurances given in a particular case could be relied on or not:

More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State’s practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:

(i) whether the terms of the assurances have been disclosed to the Court;

(ii) whether the assurances are specific or are general and vague;

(iii) who has given the assurances and whether that person can bind the receiving State;

(iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them;

(v) whether the assurances concerns treatment which is legal or illegal in the receiving State;

(vi) whether they have been given by a Contracting State;

(vii) the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances;

(viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers;

(ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;

(x) whether the applicant has previously been ill-treated in the receiving State; and

(xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State.

In referring to the points above, the father’s position was therefore that the assurances provided met all the stated criteria in that they had been disclosed, were specific, given by the highest level of government and bound the same. Further, the father’s position was that the assurances were clear, formal and legally binding statements of intent made on behalf of the UAE, and as a matter of international law, should be taken as legally binding. The father’s position was that the assurances could be relied upon by the mother and court as providing protection for the children.

As to the waivers of immunity, the judge summarised the father’s position that they amounted to:

all-encompassing waiver in matters relating to the circumstances of the children within the context of any orders made in this court. Were the father to act in a manner which was contrary to the orders of this court, he could not rely upon any immunity by reason of his position as Vice-President of the UAE and/or as Prime Minister (Head of Government) of the UAE and/or as Ruler of the Emirate of Dubai and he, and his extensive property in the UK, would be subject to the ordinary enforcement procedures of the court.

The Mother’s Position

The mother’s response was threefold. Firstly, the mother’s position was that in assessing the weight to be given to diplomatic assurances, there is no principle of law that assurances from a State must be treated as reliable. Instead, the court should have regard to all the circumstances which includes a rigorous analysis and testing that there is a sound objective basis for relying on the assurances.

Turning to the particular facts of the case, the mother argued that the court must have regard to the following points when assessing the weight to place on the assurances provided by the father:

• There had been no genuine government-to-government engagement or international diplomacy. The assurances were instead entirely a unilateral promise delivered without formal warning, context, covering letter or request of acknowledgment from the FCO.
• The court had no evidence to indicate whether the FCO would be interested in policing the assurances provided and therefore there was no evidence of what countermeasures the FCO could take in the event of a breach of them.
• Because the father refused to engage in the court process or be subject to cross-examination there was no ability to assess what diplomatic weight might be attached by the UAE to any potential breach.
• If the court accepted the mother’s allegations in the Fact Finding Hearing in relation to Shamsa and Latifa (which it later did, but at the time of this particular hearing no judgment had yet been released) that the father had engaged in breaches of their human rights including abduction, kidnapping and deprivation of liberty, this would represent a breach of international law and therefore any assurance by the father should carry no weight whatsoever.
• If the waivers provided by the father were to carry any weight they should be given in broader and clearer terms to include not only the father but any agent acting on his behalf.

The mother’s second point was that the assurances provided by the father provided no material comfort to the court because:

• The general human rights record of the UAE in terms of the Rule of Law and human rights protection was poor.
• The assurances provided by the father were worded in the widest possible terms and attempted to bind everyone, yet the waivers applied to the father alone and not his agents.
• The father had not assisted the court by filing any evidence personally or offering himself as a witness.
• There was no evidence of the FCO’s view of the assurances and waivers.
• The British authorities had already failed in the past to intervene with respect of the abduction of Shamsa.
• There was a lack of evidence as to how UK court orders may be enforced under the assurances in any court process in Dubai.
• The UAE is not a signatory to the International Court of Justice (ICJ), so in the event of any need to resolve any dispute over the assurances arose, no international mechanism would be available.

The final issue the mother rose with the father’s assurances and waivers related to the method by which the father had provided them. She argued that the appropriate method for the father to have taken would have been for him to communicate via the relevant embassies, and not, as the father did, simply informally provide them to the FCO, unilaterally drafted and with no context. The mother also argued that it was crucial to understand how the FCO would regard the father’s waiver of immunity as a means of protection for the children.

The Court’s Decision

In deciding the basis of how the assurances and waivers were to be treated in the overall matters relating to the children, the judge dealt with each separately in turn.

The Assurances

Sir Andrew McFarlane began his assessment of the law by firstly stating that:

For a foreign Sovereign State to give legally binding assurances in order to support the private law interests of an individual and, by doing so, bind itself to act in accordance with any relevant order made in private law proceedings in this jurisdiction relating to that individual’s children is, so far as the experience of this court is concerned, without precedent.

In light of this, the judge stated that he was:

grateful for, and afford great respect to, the fact that the UAE and the Emirate of Dubai have given these assurances to this court. It is no ordinary matter and it is one to which I accord significant weight.

The judge accepted that the assurances given were likely to be legally binding on the UAE and Emirate of Dubai as a matter of international law, and that such should be the starting point of the analysis. As a result, the assessment to make was the weight to place upon the assurances given the circumstances of the case and the need to contemplate the future risk of harm to the children.

The judge noted that the facts found to be proven in the Fact Finding Hearing with respect to Shamsa and “the inability of the UK authorities to take effective action to protect her” were relevant. He went on to note that:

One of the most persuasive arguments raised by [the mother] related to the absence of any mechanism under international law for the monitoring or enforcement of these assurances in the event of an alleged breach. The UAE is not subject to the ICJ and there is no other independent diplomatic or legal forum which might be deployed to ensure compliance in the event of an alleged breach. Further, and on a different point, the findings made with regard to Princess Shamsa and Princess Latifa, strongly suggest that there would be substantial difficulties in the children having access to their own lawyer in the event that they were held in Dubai contrary to any order of this court.

The judge considered the mother’s argument that the lack of evidence relating to the impact the assurances would actually have on the UK Government via the FCO to be of substantial weight. He noted that despite the assurances being intended to be legally binding, they would only bind the UAE in the event of an alleged breach if the UK were to seek to enforce them and there was a forum/mechanism for them to do so (which there was none). The judge went further to state that:

It is in this context that the father’s case is extremely weak. There is a total absence of evidence relating to the UK’s likely response to any breach. In the circumstances, it is difficult to have confidence that the UK would seek to enforce compliance by the UAE through diplomatic channels if this court were to find that a breach had occurred at some future point…

an absence of any statement by the receiving state as to its position, can only generate significant and unresolved doubt as to the reliability of the document as a means of protecting the children in this jurisdiction…

Without evidence both on behalf of the government of the UAE and on behalf of the government of the UK as to the likely diplomatic consequences of a breach of any of these assurances, this court is simply in the dark when trying to discern what, if anything, would follow such a breach.

Finally, with reference to the Fact Finding Hearing, the judge noted that when it came time to asses what decision should be made for the children in respect of contact with the father and the overall risk assessment, consideration was required of the court’s findings as to the father’s role in the events relating to Shamsa and Latifa. Essentially, the judge was indicating that the fact the assurances were given by the father as Head of Government, combined with the findings of his previous actions in relation to Shamsa and Latifa’s forcible abductions to Dubai and deprivation of liberty, this would have a serious effect on the degree of weight to be placed on the assurances provided in the current case.

The Waivers

Turning to the waivers provided by the father, the judge stated that the waivers needed to be “assessed in terms of their ability to protect the two children from any potential breach of the court’s orders for their welfare.” The judge noted that the risk to the children was one of abduction and forced removal to Dubai, and the concern for the court was whether or not those required to enforce the court’s order to stop this taking place would be able to do so based on the waivers provided. On the basis that the court found that Shamsa and Latifa has both been removed to Dubai on the orders of the father, the judge held that the waivers simply did not go far enough, and that:

For any waiver of immunity to be relevant and effective in terms of meeting the risk of the abduction of either of these two children, it would need to relate to those agents or employees of the father who may be involved on the ground at the time and who may otherwise enjoy, or at least be able to claim, diplomatic immunity.

The judge therefore accepted the mother’s position that the waivers were not sufficient whilst they only related to the father and not his agents. It was therefore held that:

they do not provide any element of protection against, and indeed are irrelevant to, the primary risk which is of abduction by others acting on the father’s instructions.

The judge concluded his judgment with the following points:

• No weight was to be placed on the assurances and waivers provided by the father insofar as they related to the protection of the children from the risk of abduction within England and Wales.
• Despite the assurances appearing to establish a legally binding promise, there was no evidence as to how they would be enforced by the UK in the event of a breach.
• The waiver of immunity provided by the father was limited solely to his own status and did not address the primary concern which would be to waive immunity for those acting on his behalf.

What Next?

The judgment of Sir Andrew McFarlane in the Fact Finding Hearing set out the allegations made by the mother against the father which were to be treated as proven. In light of that, the judge held in this particular hearing that the assurances and waivers of immunity provided by the father to alleviate any concerns of the mother would hold no weight whatsoever in the court’s ultimate decision as to the contact arrangements for the parties’ two children.

In Part Three of our commentary of this high-profile case we will summarise the judgment and subsequent appeal relating to the father’s attempt to keep the two decisions of the court out of the public eye.