A high-profile royal dispute involving the billionaire ruler of Dubai and his ex-wife, the sister of the King of Jordan, will be heard this week before the Family Division of the High Court in London on 30th and 31st July 2019 before the President of the Family Division.
The case will be heard in private before the President of the Family Division (Lord Justice Mcfarlane) and details of the case are confidential according to the rules of the Family Court. However, from the publicly available information a preliminary hearing will be heard this week in the Family Division of London’s High Court commencing on Tuesday and comes after Princess Haya, a half-sister of King Abdullah of Jordan, apparently left her ex-husband Sheikh Mohammed bin Rashid al-Maktoum and moved to the UK earlier this year, with their two children accompanying him.
There is a specific treaty signed by 101 states globally which governs the international movement of children named the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ('Hague Convention'). This treaty sets down the general principle in international law that the judicial authorities in the State where the children are habitually resident is best placed to make decisions as to their welfare and therefore places a duty on contracting states to, when requested, affect the summary return of children to the state where they are habitually resident.
Habitual residence is defined in case law as being fact-specific to the children concerned; children are generally habitually resident in "the place which reflects some degree of integration by the child in a social and family environment" (Re:A (Children: Habitual Residence) (Reunite International Child Abduction Centre and other intervening) [2013] UKSC 60).
The requirement for the relevant state under the Hague Convention to ensure that the child or children are returned promptly (Article 1) is subject to the exceptions set out in Article 13 Hague Convention, often referred to as defences to an application for summary return: (i) that the requesting parent agreed (acquiesced) to the removal of the child, (ii) that the child (or by extension the returning parent) would face a 'grave risk' or 'physical or psychological harm' or (iii) that the child is sufficiently mature and objects to the return.
In this case concerning Sheik Mohammed and Princess Haya, however, the Hague Convention is not applicable as the United Arab Emirates is not a signiatory of the Hague Convention. The slow rate of accession to the Hague Convention among the Gulf and other MENA states has been the subject of some commentary; within the MENA region only Morocco, Tunisia, Iraq and Israel are Hague signiatories. It is something of an irony that Sheikh Mohammed would have been better assisted in arguing for the summary return of his children to Dubai if his own kingdom had been more forthcoming in its accession to the Hague Convention.
The case presented to the Court by Sheikh Mohammed's lawyers this week is likely to argue for the summary return of the children to UAE asking the Court to exercise its discretion under the inherent jurisdiction of the High Court. In outline, his lawyers are likely to argue that the children were habitually resident in Dubai before their mother brought them to the UK, and that he did not consent to their change of permanent residence and therefore they should be returned to Dubai by order of the English courts.
There has been a long history of the UK family courts, where appropriate, even before the ratification of the Hague Convention, exercising their discretion to order the summary return of children to other states [see for instance Re J (A Child) [2005] UKHL 40]; generally in circumstances which the Courts referred to the wrongful act by the removing parent as 'kidnapping'. This question of when the Court should use the inherent jurisdiction of the High Court to summarily return a child to another country has also been the subject of further examination in the recent case of Re NY (A Child) [2019] EWCA Civ 1065. Even more interestingly, the NY case was appealed to the UK Supreme Court (summary here) and judgment is expected imminently.
For once, the media interest in a celebrity divorce is matched by the level of interest from legal practioners in the underlying arguments; all this suggests that whatever the decision of Lord Justice Mcfarlane this week, this may not be the end of the legal battle between the Sheikh and the Princess. Sadly, as ever in protracted children proceedings, it is inevitably the children themselves who will suffer the most.