Amina Al-Jeffery v Mohammed Al-Jeffery (vulnerable Adult; British Citizen)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holman |
| Judgment Date | 03 August 2016 |
| Neutral Citation | [2016] EWHC 2151 (Fam) |
| Docket Number | No. FD15F05038 |
| Court | Family Division |
| Date | 03 August 2016 |
[2016] EWHC 2151 (Fam)
Mr. Justice Holman
(Sitting throughout in public)
No. FD15F05038
FD15P00620
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. H. Setright, QC and Mr. M. Gration (instructed by Dawson Cornwell Solicitors) appeared on behalf of the Applicant.
Mr. M. Scott-Manderson, QC (instructed by Osbornes Solicitors) appeared on behalf of the Respondent.
Introduction and the issue
There are two applications before the court. One asks the court to make a statutory forced marriage protection order. The other asks the court to make orders, including mandatory orders, in the exercise of the inherent jurisdiction of the High Court to make orders protective of vulnerable adults. Under the law of Wales and England, the applicant, Amina Al-Jeffery, became fully adult when she attained the age of 18. She became 21 last June. She is of full mental capacity. She was born in Wales and lived and went to school in Wales throughout her life until the age of almost 17. She is a dual citizen of the United Kingdom and of Saudi Arabia. At the insistence of, and in obedience to, her father, she travelled to Saudi Arabia in April 2012 when she was 16 3/4. She has resided there continuously since then, and has not revisited the United Kingdom since then. She now claims that she is being seriously ill-treated by her father and being kept under constraint by him in his flat; and that she is being prevented by him from leaving Saudi Arabia and travelling to Wales or England, which she wishes to do, and is, in the eyes of the law of Wales and England, fully entitled freely to do. Her father is a citizen only of Saudi Arabia. He is not British, although he himself lived and worked for many years in Wales, and his wife (from whom he is not estranged) and several of his adult children currently still do live in Wales or elsewhere in the United Kingdom.
As I will later explain, there is in fact no evidence of any current plan or intention of the father to force Amina into a marriage. Although it was vigorously argued on her behalf at the outset of the hearing that I should make a forced marriage protection order, it was wisely accepted by the end of the hearing that I should not do so; and I will dismiss that freestanding statutory application and discharge all orders of a continuing effect made pursuant to it. But Amina still strongly asks through her lawyers here that I should exercise the inherent jurisdiction and make mandatory orders ordering her father to permit and facilitate, including by paying the air fare, that she can now travel unhindered to Wales or England, being part of the United Kingdom of which she is a citizen.
The tension in this very unusual case is at once apparent. There is no doubt that I, being a judge of, and sitting in, the High Court of Wales and England, do possess in the eyes of the law of Wales and England the inherent jurisdiction or power which this court claims and asserts to make orders, including mandatory orders, for the protection of vulnerable adults. The continued existence of that jurisdiction or power, even when based upon the British nationality alone of the person to be protected, has very recently been restated twice in different decisions by the Supreme Court. There is absolutely no reason at all why Amina, being a British citizen, cannot apply and appeal to this court for help and protection, as she has done. Indeed, as I will later explain, the present proceedings were triggered, at least in part, by a letter from the British Foreign and Commonwealth Office here in London to her solicitors encouraging that she should do just that. But although she can undoubtedly apply to the court, I have, and must exercise, a judicial discretion whether or not to exercise that jurisdiction or power and whether or not actually to make an order and, if so, what order. I must not act exorbitantly and I must only act with great caution or circumspection.
The father, against whom I asked to make an order, is not a British citizen and owes no allegiance to our Sovereign or this state. Neither of them are present here. Neither of them have lived here for several years. Both of them are citizens of Saudi Arabia and both of them currently live there. There have, indeed, already been recent legal proceedings between them there. Should I, nevertheless, attempt to help her by making the essential order which she seeks for her return here; or should I appreciate that that would be exorbitant and, in my judicial discretion, decline to do so? That is the essential issue and dilemma in this case.
The hearing in public
I heard this whole case in public with no reporting restrictions. Unless well-known exceptions apply, the courts of Wales and England sit in public. This case does not concern a child and none of the special statutory provisions or rules in relation to children apply. The applicant is not mentally incapacitated and these are not proceedings in the Court of Protection. At no stage did the very experienced legal team acting for Amina ask me to sit in private or to make any reporting restriction order. Indeed, at the outset of the hearing when a journalist was sitting in the court room Mr. Henry Setright QC, who appears on behalf of Amina and was robed, expressly pointed out, so that it could be clarified to the journalist, that I was sitting in public, there was no reporting restriction order, and none of the restrictions or rules in relation to children applied. In any event, it does seem to me that this case raises issues of important and genuine public interest which required to be heard and determined in public, namely how far can, or should, this court go to seek to protect adult British citizens who reside abroad.
I am aware that this has led to considerable publicity in print and online, much of it under a headline "Woman kept in a cage" or words to that effect, the accuracy of which I will later address. I was told (and if it is true, I regret it) that this led in turn to press harassing members of the family in Wales. Although the father has remained in Saudi Arabia throughout the hearing, he was in regular communication by telephone with his solicitor and his advocate, Mr. Marcus Scott-Manderson QC, and, indeed, there was an interpreter present throughout the hearing for that purpose, although I understand that the father does speak and understand English, except more difficult or technical concepts or terms.
For the first three days of the hearing there was no suggestion by Mr. Marcus Scott-Manderson QC, who appears on behalf of the father, that I should hear the case in private or make any kind of reporting restriction order. At the outset of the fourth day of the hearing last Thursday I was told that the father had "hardened his position with regard to discussing Amina's return" from that indicated to his lawyers on the previous evening, and this was attributed to "what he has seen in the media". At the very end of the hearing last Thursday, literally in the last moments of the hearing at around 6 p.m. local time, Mr. Scott-Manderson said that he had instructions to apply for a reporting restriction order. I declined to hear that application for three reasons. First, it was by then made at far too late a stage, so much reporting having already occurred and the hearing having effectively ended except for this judgment. Second, the only real justification for any reporting restriction order could be the protection of Amina and she was not seeking one. Third, the provisions of section 12 of the Human Rights Act 1998 are mandatory and binding on the court, and no steps had been taken at all to notify any media organisation or the Press Association Copy Direct Service of the application for a reporting restriction order; and there was no reason, let alone any compelling reason, as that section requires, why the respondents to an application for a reporting restriction order should not have been first notified.
The essential facts
Amina's parents originate from Saudi Arabia. At some point, although I am unclear when, they moved to live in south Wales and the father obtained indefinite leave to remain in the United Kingdom. They were already living in Wales before Amina was born, and the father was working there. They have altogether nine children of whom Amina is the eighth. The elder siblings are five brothers and two sisters, all of them highly educated with degrees from British universities and in some cases higher degrees. Some now live and work abroad. Several still live and work in the United Kingdom. Amina was born in south Wales in June 1995. She lived and went to school there continuously until April 2012. In about 2007 she was granted British citizenship. During her teenage years her parents became increasingly concerned about Amina, whom her mother described in a statement made in January 2013 (now at bundle p.F5) as a "problem child". She was underperforming at school. She was truanting. She was, they knew or believed, ingesting drugs, including hard drugs. She was consorting in ways they considered inappropriate, and even dangerous, with men. The father has referred in the present proceedings to "her toxic lifestyle" at that time.
The father himself had already returned in about 2010 to Saudi Arabia to care for his own mother there. In April 2012 Amina travelled with her mother to Saudi Arabia. Mr. Scott-Manderson accepted that she did not want to leave Wales and she did so...
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