Princess Haya bint al-Hussein of Jordan attended court in July 2019 and made three applications before the High Court of England and Wales. A Forced Marriage Protection Order, Wardship orders in respect of their two children and a non-molestation order to protect her against domestic violence.
Her estranged husband Dubai ruler, Sheikh Mohammed Al Maktoum made his own applications before the High Court for an order for the children’s summary return to Dubai under the inherent jurisdiction of the High Court and an order to impose reporting restrictions.
The President of the High Court’s Family Division, Sir Andrew McFarlane refused the Sheikh Mohammed's application for reporting restrictions and allowed the media to reveal what applications had been applied for at their preliminary hearing.
The parties further attended court for a pre-trial review in October 2019 where Lord Pannick QC was instructed by the Dubai ruler.
This case is currently being heard in the High Court this week where the President of the Family Division will hear evidence and arguments in relation to the above applications with a ruling expected in the next few days.
These proceedings have the potential to test not only relations between the United Kingdom and Dubai, but also between Dubai and Jordan, as Princess Haya is the half-sister of Jordan's King Abdullah.
Forced Marriage Protection Orders
Forced Marriage Protection Orders are used to prevent a victim from being forced into marriage in the UK or abroad. They prohibit marriages that 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 has a wide range of powers in respect to forced marriage cases, and there are a number of protective orders which the court can make. Including orders 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 or other family members who may remove the victim from the jurisdiction.
Forced Marriage Protection Orders may 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. Including cousins or uncles and aunts.
A 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 may consider potential protective measures that could be put in place in their home jurisdiction to further protect the alleged risk of harm, if a return order is made.
Hilary Lennox is a Barrister specialising in International Human Rights, Forced Marriage, Child Abduction and Family Law.