Hunters Law explores what this unique case could mean for judicial precedent.
Whilst reporting in criminal cases has always been a central tenet of our free press, until recently the opposite was true in our family courts. This is particularly so where sensitive children related issues, such as those raised in the Sheikh’s case, were under consideration. However, there is an increasing move towards transparency to facilitate a broader public understanding of how the family courts operate. In some cases, such as this, publicising elements of the case will also be considered to be in the children's interests.
The case related to the 8 and 12 year old children of Sheikh Mohammed bin Rashid al Maktoum, the Ruler of the Emirate of Dubai and his former wife, Princess Haya Bint al-Hussein. The mother had brought the children to the UK in April 2019 and the father had subsequently commenced proceedings seeking their return to Dubai.
Cases to determine arrangements for children are heard in private, but accredited media representatives are generally permitted to attend. However, the media is only permitted to report very limited information in respect of these cases, and in particular may not identify the child directly or indirectly, unless they successfully apply to lift the restrictions, which is what happened in this case.
There is an increasing move towards transparency to facilitate a broader public understanding of how the family courts operate.
The press asked the court to make public the judgments setting out the court's findings, in respect of the background facts to the case. This included findings about the Sheikh's past unlawful abductions of two of his older children. The Sheikh opposed the application. The application was, however, supported by the children's mother, and by the guardian appointed to represent the children's interests.
In deciding whether to lift reporting restrictions, a judge must balance the family's right to a private family life, and the journalists’ right to freedom of expression, including their ability to report on family law cases in the public interest. Whilst the children's best interests are a primary consideration, they are not, in contrast to decisions made in respect of arrangements for children, the court's paramount consideration.
In this case, the media argued that the right to freedom of expression should prevail, as there was a public interest in publicising the court's findings about the Sheikh's conduct towards his two older daughters, and also in promoting public understanding about the court's role in determining the future of the two younger children.
The parents, unsurprisingly, focused their arguments around what would be best for their children.
In Sheikh Mohammed’s case, Lord Pannick QC and Desmond Brown QC argued on his behalf that publishing the judgments would be contrary to the interests of the children, both as it would create media frenzy which would impact on them, and because it would undermine the prospects of restoring his contact with them.
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Whilst making information about children public will often be harmful to them, Princess Haya Bint al-Hussein and the children’s guardian successfully argued that in this case publication would be in the children’s interests, as it would put the record straight about the Sheikh's behaviour. The children's guardian had noted that the Sheikh's dissemination of a "distorted narrative" of events was causing the mother "clear and stark psychological, social and emotional pressure", which was in turn having a direct impact on the welfare of the children, and that they would benefit from an established narrative of their family history.
In approving the decision to make the judgments public, the Court of Appeal made clear how unusual this case was. There was already significant information about the family in the public arena, and the mother and guardian agreed that publication would benefit the children.
Whilst this particular case was strongly influenced by the children's interests, it nevertheless comes at an interesting time for the family justice system, which has come under increasing pressure over its "secret" nature. In an effort to address this, since beginning of his tenure as President of the Family Division of the High Court, Sir Andrew McFarlane has announced a Transparency Review and issued two pieces of guidance on the subject in an attempt to reduce mistrust in the family justice system, due to a lack of transparency. Whilst cases concerning financial arrangements on divorce are increasingly being made public, this does however remain unusual for cases relating to children. Parents should not fear that personal family matters will routinely be made public where the court has been asked to resolve arrangements for children.
