The Sheikh and the Princess
Part Three – To Publish or Not to Publish?
Summary and commentary by Rob Webster, Solicitor
In our previous two articles 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’), as well as his judgment relating to various assurances and waivers of immunity the father provided to the court.
As is ordinarily the case, the court hearings in the proceedings between the parties relating to their two children were conducted in private, although representatives of various media outlets (hereafter referred to as ‘the media’) attended the hearings to observe whilst under strict controls as to what reporting could take place. The media were permitted to only report on the dates of various hearings, whether the parties attended them in person, and the fact that the applications had been made.
During the course of the proceedings between the parties the media made it clear that they would apply to be released from the reporting restrictions so that they could report on what had taken place during the hearings, and the judgments handed down by the court. The court therefore accepted it would be necessary to hold a hearing to determine whether the judgments should be published or not and whether the reporting ban should be lifted to some extent.
When the hearing was held on 17 January 2020, the mother, the media and the children’s guardian all supported publication of at least the fact finding judgment in which the court held that the majority of the mother’s allegations against the father, including abduction, kidnapping and deprivation of liberty against two of his other children, as well as the father engaging in a campaign of terror and harassment against the mother, were proven and to be treated as fact. Unsurprisingly, the father objected to publication and argued that it was not in the interests of the children for publication to take place at that stage.
The Law Relating to Publication in Children Proceedings
All parties agreed as to the law which should be applied. The Administration of Justice Act 1960 prohibits the publication of information relating to proceedings involving minors within the High Court, proceedings under the Children Act 1989 and Adoption and Children Act 2002, as well as proceedings relating to the maintenance or upbringing of a child. The Children Act 1989 provides for similar prohibitions on publication of material likely to identify any child involved in proceedings before the High Court or Family Court, or an address or school of the child.
However, there are exceptions to the rule. The law provides that the court may dispense with the prohibition on publication if they are satisfied that the welfare of the child requires it. In making such an assessment, the court is required to act in accordance with the European Convention on Human Rights (ECHR) and the Human Rights Act which provides that in making such an assessment the court should have regard to the right to freedom of expression and the extent that the material has, or is about to, become available to the public, and if it is, whether it would be in the public interest for the material to be published.
As such, the judge summarised that the balancing test is between the welfare of the children and the rights to freedom of expression. He noted that neither interest is to be treated as more paramount than the other:
It is plain that the interests of any children are not afforded “paramount consideration” in the balancing exercise. However, as Baroness Hale warned in PJS v News Group Newspapers  UKSC 26, the fact that the interests of a child may not be “a trump card” does not mean that those interests should be dismissed.
The Media’s Argument: Public Interest
The media, consisting of Associated Newspapers Ltd, British Broadcasting Corporation, The Financial Times Ltd, Guardian News & Media Ltd, Telegraph Media Group Ltd, Sky PLC, Thomson Reuters, Times Newspapers Limited and the Press Association were represented by counsel and it was argued on their behalf that the judgments of Sir Andrew McFarlane, in particular the fact finding judgment, should be published due to the “overwhelming” public interest.
In written submissions to the court, the media stated as follows:
Powerful and pressing public interests are plainly engaged. The issues raised by the applications and evidence adduced are of very considerable public interest concerning credible allegations of international human rights abuses (including kidnap, imprisonment and torture), criminal offences committed in this jurisdiction, the intervention of the state in a criminal investigation and the potential forced marriage of a child. The strength of the public interest is demonstrated by the fact that there has already been very extensive commentary and debate of this case. 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. Further, the exchange of information in respect of state intervention in a criminal investigation is crucial to our democracy. The absence in this case of any criminal investigation or likely prosecution make the family proceedings all the more worthy of proper analysis and coverage.
The media went on to develop the following arguments in support of publication of the judgments:
- The situation concerning Shamsa and Latifa, in light of the fact finding hearing, established an urgent need for publication and it would provide public interest in applying international pressure on the UAE to be held accountable.
- Publication would expose the father’s hypocrisy and prevent the public from being further misled by his public statements or false media reports influenced by him.
- That there is a public interest in the exposure of crime and given the findings against the father in relation to the abduction, kidnapping and deprivation of liberty of Shamsa and Latifa, including the lack of knowledge of their current circumstances, the judgments should be released.
- That there is a public interest in understanding how the court proceedings were undertaken and how it was decided that the children relevant to the application should remain in the UK.
As to the balance between the welfare of the children and the right to freedom of expression, the media’s position was that on a balancing exercise there was a real urgency for publication arising from the ongoing situation faced by Shamsa and Latifa which justified immediate publication of the judgments.
The Mother’s Argument: Welfare of the Children/Mother
The mother’s position, like the media, was that the judgments should be published. However, the mother’s argument for publication was on the basis that it would actually be in both the mother’s and the children’s welfare for publication to take place.
As part of the mother’s evidence, she provided the court with a witness statement which set out the current situation she and the children had been living in since their move to the UK and the subsequent court proceedings. She stated as follows:
People think that I have wronged the children and wronged [the father]. The public narrative is of me leaving Dubai with the children, taking [the father’s] money following an affair. People do not want to be associated with us. I have not been able to protect fully the children or defend myself against the lurid reporting and character assassination. … People have said that they want to help and begin to ask for information about the trial. When I have said the proceedings are closed and I am not able to discuss the matter, I have faced increasing hostility including from members of my own family who have accused me of not trusting them or wondering what I am hiding. There is nothing I can say, and no way to explain our situation to them. My silence, and that of the children, only serves to distance them from us. There is an entire year of our lives we cannot speak of.
The mother went on to argue that the publication of the judgments would make a real difference to the safety and security of the children, in that the high level of risk found by the court would be made public for all to know. She further stated that publication would address the issues she had faced in the past following the father engaging in a “media storm” against her where the court found he had been involved in more than 1000 media articles being published about her, which included false and hostile material. The mother’s position was that if the judgments were published it would act as a means by which the misreporting about her could be corrected which would be in hers and the children’s best interests.
The children’s appointed guardian similarly supported the proposal for the finding of fact judgment to be published on the basis that it would “provide a vital correction to the existing narrative” and that it would alleviate some of the stress and anxiety suffered by the mother.
The Father’s Argument: Keep it Secret, Keep it Safe
Unsurprisingly, the father was in complete opposition to any publication taking place at this stage in the proceedings prior to the welfare evaluation taking place (the hearing which would ultimately determine the contact arrangements to be put in place between the children and the father).
The father focussed his argument on the basis that it would not be in the children’s welfare for the judgments to be published because:
- It would “fatally undermine or sabotage the prospect of contact” between the children and father; and
- It would result in “wall-to-wall international media and social media coverage” which would cause further difficulties in re-establishing contact. The father argued this would “unleash a media frenzy” which would impact the mother and children negatively.
In any event, the father argued, if the judgments were published then he would likely appeal the decision which would provide him with 21 days to prepare such an application, resulting in the order for publication being delayed. The father argued that this appeal would be unlikely to be heard before the welfare hearing, and so any benefit of ordering the judgments to be published at this stage would not be realised anyway.
The Court’s Analysis
In conducting the balancing test, the judge began by noting that there were two aspects of the case that were “particularly and unusually striking”:
The first is the very strong arguments that are put forward in favour of respecting the freedom of the press under Article 10. In contrast to most cases before the family court, the findings of fact that have been made in these proceedings engage with issues which are of some international importance in terms of human rights and diplomacy and where, in particular, the United Nations has publicly expressed concern about the wellbeing of the two individuals who are at the centre of the principal findings that have been made.
The second striking feature is that, despite the probable scale of any publicity, which is likely to be both extensive and sustained, the children’s mother, who throughout their life has been their sole carer, strongly favours publication
Dealing firstly with the case in favour of publication, the judge was quick to find that:
The findings of fact do indeed establish matters which are of genuine public importance and go well beyond the private lives of the four individual family members whose circumstances are the principal concern of these family proceedings.
Turning then to whether or not publication would be in the children’s and mother’s welfare, the judge noted that in most private law cases involving the welfare of children it would be not be sensible to even consider publication of findings of fact against a father at the point where the court was looking to re-establish contact with children. The judge also noted that the mother’s support for publication was “in total contrast to what one would expect in an “ordinary” family case”.
What was clear from the judge’s analysis that he gave particular weight to the mother’s position that publication would have the effect of correcting the false narrative he had found the father had played a role in with regards to the orchestration of false media reports about her. The judge stated that:
This mother and these children do not live in obscurity, where no-one knows of their circumstances or background history. On the contrary, much is thought to be “known” about them, but much of what is “known” has been demonstrated to be false by the findings of this court. It is not thus a question of moving the children and the mother from the shadows into the floodlight of publicity. It is, rather, a matter of refocusing the lens of publicity so that it includes the findings of the court in contrast to the falsehood that apparently currently holds sway.
It is clear that the level of publicity that presently surrounds this family, and is currently being experienced by the mother, is of a high degree. Many, if not every one, of the people that she and the children encounter will know something of her current circumstances and may well have a view about what they may understand to be her actions. She is already experiencing the power flowing from this large body of public opinion and her experience of it is highly negative. It even impacts upon her relationship with members of her own family to whom she might otherwise be able to turn for support.
The judge went on to accept the mother’s argument that the “landscape of public opinion needs to change so that it is more firmly founded on the true facts”. He held that media reporting would “likely to benefit the mother, and… the children to a significant degree.” Her further stated:
On that analysis, and 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 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.
In summary, and on balancing the interests of the right to freedom of expression, the welfare of the children, and (as added by the judge as one of his considerations) the right of the father to respect for private life, the judge found in favour of publication and make the following points:
- The right to freedom of expression showed that this was a case which went “beyond the private interests of these family members and includes matters of genuine international public interest.”
- Publication of the finding of fact judgment would correct the false narrative of the mother which the father had played a role in.
- The judgments should be published prior to the welfare hearing in which contact arrangements between the children and father were considered because; (1) publication of the judgments was inevitable and there was nothing to be gained by awaiting the hearing; (2) publication was urgent due to the findings in respect of Shamsa and Latifa; and (3) there was a need to correct the false narrative in the media which was urgent and pressing.
The judge also held that as he was ordering publication of the finding of fact judgment there was no reason why it should not follow that the judgement relating to the assurances and waivers provided by the father should also not be published. The judge stated such publication would provide the children with:
additional security for the protection of the children so that there is a high degree of clarity with respect to assertions that might be made on the ground by any individual who might attempt to abduct them and remove them from this jurisdiction.
As to whether or not the children could be named within the publication of the judgments, the judge held that:
given the wide knowledge that exists concerning this family and the ready access there is to the names, ages and gender of the children on the internet, it is wholly artificial for the court to prohibit disclosure of this information in connection with these proceedings 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 this will be less effective if there is doubt as to their identity. I will therefore give permission for the names, ages and gender of the children to be published.
The Father’s Appeal
As was expected, and as indicated by the father, the father lodged an appeal to the decision to allow publication of the judgments in the case. The case was referred to the Court of Appeal, and the matter was heard by Lord Justice Underhill (Vice-President of the Court of Appeal (Civil Division)), Lord Justice Bean and Lady Justice King. The judgment was unanimous between the three justices, and the father’s appeal was dismissed.
Grounds of Appeal
The father appealed on two grounds. Firstly, that the judge had made a mistake in principle in allowing publication of the judgments prior to the overall welfare hearing, and secondly that even if he was able to make that decision, the wrong decision was made following the balancing exercise between freedom of expression and the welfare of the children. During the hearing, the father also sought permission to appeal on the basis that the best interests of the children should have been the paramount consideration, and not one to be balanced with the right to freedom of expression.
The Court of Appeal’s Findings
The father’s argued that the decision to publish the judgments prior to the welfare hearing was wrong because the matter between the parties had not yet concluded, and the judge’s position may change depending on the final hearing and evidence presented. The father argued that the judge should have all the evidence available to him before making the decision to publish or not.
The Court of Appeal rejected this argument on the basis that the findings in the finding of fact judgment and the assurances and waiver of immunity judgment were unlikely to change as they did not relate to the children subject to the proceedings. The Court of Appeal stated as follows:
Not only did the [judge] have all the information necessary to make the decision he made, but there is no basis to suggest that the findings themselves may be varied or undermined at the welfare hearing. Whilst technically the proceedings are part-heard (the factfinding hearing having been completed and the welfare hearing yet to be heard), these findings of fact are not, in our judgment, “interim” findings and [the father] accepts that the fact-finding judgment is itself a final judgment. In our view, given that the facts found do not relate directly to the children, this is not a case where there is any likelihood of those facts being revisited at the welfare hearing.
The court went on to state that:
In our judgment the President was entitled to conclude that publication was inevitable and that nothing was to be gained by awaiting the subsequent welfare hearing in relation to contact.
The father next argued that there was no urgent need for publication, as the judge had found as one reason to support publication, and that:
the Princesses are not in any real or immediate risk of physical danger and that it is not suggested that the publication of the judgment would lead to any substantial change in their circumstances.
This was rejected by the Court of Appeal who held the judge was correct “in factoring in this important public interest feature of the case as a part of the evaluation process.”
Next, the father argued that the judge had made an error by allowing publication on the basis that it was in the mother’s and the children’s welfare to have the true narrative presented to the media. He argued that it was “unrealistic to think that the nature of press reporting would be such that the narrative would in fact be corrected” and that in any event, the public would not read the judgments and there would ne no “responsible reporting”.
The Court of Appeal again rejected this argument and confirmed the judge’s position was an entirely reasonable one. Furthermore, as to the father’s criticism of the media and argument that there would be no “responsible reporting”, they noted the somewhat hypocritical nature given that findings of fact had been made in relation to the father’s involvement in a false media campaign of harassment against the mother:
Such a submission is particularly unattractive, made as it is against the backdrop of his findings about the father’s campaign of intimidation and humiliation conducted via a media war against the mother, which has in large measure led to the false narrative which, the [judge] believed, required to be corrected in the interests of the children.
The father next went so far as to argue that the judge had failed to give sufficient weight to the fact that the father had played no role and given no evidence in the finding of fact hearing, and therefore the evidence was untested. The father, when challenged why he had not done so, stated that he regarded the hearing as relating to “deeply private and personal matters and he was not, therefore, prepared to engage with the process.”
The Court of Appeal was particularly scathing of this point, noting the following:
Whilst sympathising with the father’s understandable sense of intrusion in relation to these deeply private and personal matters, this is an intrusion suffered by every litigant in such finding of fact hearings, be they prince or pauper. The father elected not to take part in the proceedings and has not appealed against the findings made by the [judge]. It cannot in our view now be said, in reliance upon that forensic decision, that the [judge] should in some way have put into the balance against publication a view that his judgment, which is final in character, should be regarded as inadequate or its findings treated as unreliable. It is in fact clear from a reading of the fact-finding judgment that the [judge] scrupulously tested the reliability of the evidence which was before him.
The father’s final argument, which he had not initially pursued in his grounds of appeal but which the Court of Appeal allowed him to put forward nonetheless, was that the welfare of the children in the balancing exercise between freedom of expression, should be given the paramount consideration and that it should not be a balancing test at all.
The Court Appeal noted that the judge had:
regarded “the case in favour of publication as being strong to the extent of being overwhelming”, precisely because publication was in the interests of the children as well as in the public interest.
They went on to state that they were “bound to say that it is our strong provisional view that the argument which the father wishes to advance is ill-founded.”
As such, the father’s appeal was dismissed and the judgments published.
The case remains listed for the end of March for a welfare hearing, in which the Court will be required to assess how and whether contact should be re-established between the children and the father in light of the finding of fact judgment. The case continues to be managed by Sir Andrew McFarlane, who is now due to undergo heart surgery and so it may be the case that the hearing is adjourned or taken over by an alternative judge.
For now, we can only wait for that hearing to take place and the judgement be released. Please continue to follow the Maguire Family Law Blog for what should be the final Part Four of our commentary of this high-profile case.