His Highness Sheikh Mohammed Bin Rashid Al Maktoum v Her Royal Highness Princess Haya Bint Al Hussein & Ors.

On 22 December 2021, I handed down the final judgment [“the Welfare Judgment”] at the conclusion of long-running wardship proceedings focussed on the welfare of two children, Sheikha Al Jalila bint Mohammed bin Rashid Al Maktoum (“Jalila”), who is now aged 14 years, and her brother Sheikh Zayed bin Mohammed bin Rashid Al Maktoum (“Zayed”), who is now aged 10 years. The parties to the proceedings, which have been on-going for 2½ years, are the children’s mother, Her Royal Highness Princess Haya bint Al Hussein (“Her Royal Highness”/“the mother”), and their father, His Highness Sheikh Bin Rashid Al Maktoum (“His Highness”/“the father”). The children are represented by a children’s guardian from the CAFCASS High Court Team, Ms Magson.

The proceedings, which have involved the determination of issues that are well outside the ordinary scope of disputes relating to children, have been conducted before this court and the Court of Appeal. A total of 15 substantive judgments have subsequently been published:

The question that is now before the court relates to the degree of publicity that is to be afforded to the Welfare Judgment. Should it, in common with each of the preceding judgments, be published in full (subject to some minor redactions), or should the court restrict publication to a summary of the key elements of the decision? Given the degree of publicity that has hitherto taken place, all three parties agree that some form of summary of the decision should be publicly released to mark the conclusion of the proceedings.

On 23 February 2022, the court heard submissions from each party on the issue of publication of the Welfare Judgment. The mother’s settled position for some time has been that the judgment should be published in full, subject to some modest redactions. In the weeks prior to the hearing, the children’s guardian, [redacted], had considered that publication should be limited to a summary, and this, too, was the view of the father. The position of the parties significantly changed, however, in the final day or so prior to the hearing in that the guardian reconsidered her position in the light of a full statement that had, by then, been filed by the children’s mother and following a further meeting with the children. In the event, the guardian’s final position was to support the mother by advising the court that publication of a full version of the judgment was justified (albeit with some additional redactions to those suggested by the mother). On the eve of the hearing the father’s solicitors wrote to the court and the other parties to inform them that the father had adjusted his case in the light of the guardian’s account of Jalila’s most recent views (which had to a degree changed) and the guardian’s revised recommendation. The letter indicated that the father did not intend to take issue with either the guardian’s proposed summary or the guardian’s proposed redacted judgment, provided that whichever was chosen was acceptable to the court. The letter, however, went on to record that ‘the father respectfully suggests’ that both the children’s interests and the public interest is better served by the publication of a coherent and accessible summary, rather than publication of the judgment itself.

Representatives of the media were given formal notice of the hearing and invited to make submissions should they wish to do so. In the event all the media organisations who responded indicated that, whilst they supported the outcome sought by the mother, they did not, in circumstances where the court was considering a welfare judgment, wish to make positive and freestanding submissions themselves. As has been the case with almost all of the previous hearings, a number of UK accredited media representatives attended the oral hearing.

Irrespective of the position of the parties, at the commencement of the hearing I explained that, when writing the Welfare Judgment, I had not done so with an eye to the prospect of publication. I had taken that course partly because of the need to express my concluded views frankly and in some detail so that the two parents, and in due course probably the children, would understand in clear terms the court’s reasoning. I also explained that when contemplating any publicity with respect to the Welfare Judgment, I had worked on the assumption that this would probably be accomplished by means of a short summary and no more.

In the light of the explanation of my approach, and on the basis agreed by all parties that it was highly unusual for a court to publish a welfare judgment where the identity of the children was fully and widely known, the oral hearing proceeded with full argument on the choice between a summary and the publication of the judgment. I am most grateful to counsel for all parties for their assistance in presenting the competing arguments.

At the end of the hearing I remained genuinely undecided as to the right course and I have since taken time to read through all of the relevant paperwork once again. For the court to be in such a position is no more than a reflection of the highly unusual nature of the outcome that is sought by the mother and which is, now, supported by the guardian and no longer vigorously opposed by the father. None of the most experienced and well-resourced legal teams have been able to find an example of a welfare judgment relating to children that has been published in circumstances where the children are explicitly identified. In the present case that situation is compounded by the fact that, not only would the children be named in the judgment, but the circumstances of this family are already well known to the public and the children are, in any event, public figures in their own right in Dubai and elsewhere.

In the course of the general work of the Family Court, it is not unusual for a welfare judgment to be published. Often, the reason for doing so will be because the decision provides a useful example of a particular issue being played out in the proceedings, or because some other aspect of the decision is of interest to the legal and social work professions. Alternatively, a judgment may be published in compliance with the current guidance ‘Transparency in the Family Court: Publication of Judgments’ (16 January 2014). Where such publication takes place, the children’s identity is invariably anonymised and every effort is made to avoid references in the judgment that might otherwise lead to their identification.

During submissions, counsel for each parent made reference to, and sought to rely upon, the recently published result of the review that, as Head of Family Justice, I have undertaken on the issue of transparency [‘Confidence and Confidentiality: Transparency in the Family Courts’ (29 October 2021)]. I should be plain, and without any criticism of counsel for referring to this report, that I consider the outcome of the Transparency Review to be wholly irrelevant to the issue that currently falls for determination. Insofar as the Review favours greater openness in Family Court proceedings, the Report is clear that such openness is not to be at the expense of the anonymity of the children and family concerned. The principles and themes that are developed in the Transparency Review do not have any direct resonance to the present circumstances where the proposal is to lay out the court’s welfare evaluation with respect to two clearly identified and publicly known children.

In the highly unusual circumstances of the present case, it seems clear that the question of publicity with respect to the Welfare Judgment requires a bespoke solution that is informed by the specific facts of this case and the highly individual needs of these particular children.

The overall legal context within which a decision to publish a judgment given in proceedings relating to a child’s welfare is to be taken is well settled and is not controversial as between the parties to the present proceedings. Indeed, in the earlier ‘Publication Judgment’ ([2020] EWHC 122 (Fam)), I summarised the relevant approach to the law at paragraphs [20] to [30]. Subsequently, on appeal from that judgment, the judgment of the Court of Appeal (at paragraph [67]) concluded that there was no ‘error of principle’ in that approach.

It is not necessary to repeat what is said at paragraphs [20]-[30] of the Publication Judgment here. The summary traversed the familiar landscape of the Administration of Justice Act 1960, s 12 and the Children Act 1989, s 97, which both establish the default position of confidentiality for proceedings relating to the welfare of children, before moving on to the Human Rights Act 1998, s 12 and the need to strike a balance between the ECHR rights that may be engaged under Articles 6, 8 and 10 when a question of publicity is raised.

It is not only unnecessary to repeat those matters here because they have already been set out in the earlier judgment and are not in dispute, it is also not necessary to do so because in many ways the issues that are now before this court do not fall squarely within a paradigm ‘publicity’ case. As the stance of the media representatives may indicate, the case for there being a public interest in the publication of a judgment dealing with the welfare of two identified and well-known children is not strong. Neither the mother nor the guardian have placed any substantial weight during their submissions in favour of publication on the Art 10 rights to freedom of expression. Unusually, the arguments that are relied upon in support of publication focus upon the welfare of the children and their Art 8 and 10 rights (and those of their mother) to have their ‘story’ accurately and neutrally available for public scrutiny in order to avoid their private and family lives being adversely affected by the children’s father causing a false narrative about the outcome of the case to be promulgated.

I will therefore turn to explain the mother’s case in favour of publication of the Welfare Judgment in more detail, which is primarily based upon the account given in her latest witness statement, which includes the following assertions:

In her statement, the mother drew attention to the fact that, on 11 January 2022, on an Instagram account regularly associated with His Highness, a picture appeared of Zayed relaxing with his father. It is said that the implication is that this picture is recent, and that father and son have been reunited. Comments on the Instagram site by some followers certainly suggest that such a, wholly false, impression had been gained. Despite the fact that publication of that photograph is highlighted in the mother’s statement, which was served on the father’s lawyers on 9 February 2022, a further video of Zayed was published on the same Instagram site on 6 February. The mother draws attention to these two incidents as being examples of exactly the sort of behaviour that she fears from the father and those acting for him to create a false narrative.

In presenting the mother’s case, Mr Charles Geekie QC laid stress upon the past behaviour of the father who has sought to issue public statements commenting on a number of the previous judgments in these proceedings. It is, he submitted, necessary for there to be a public judgment in order to set the record straight by providing Her Royal Highness with a firm baseline to which she can refer.

On the issue of whether the needs identified by the mother could be met by a summary, Mr Geekie submitted that once a bridge is crossed between a wholly minimal summary and one that contains some degree of detail, the principle of disclosure of the content of the judgment is established and the need to be more explicit by making full publication effectively becomes compelling. To put the conclusions out in the public domain where, as here, they are out of the ordinary by refusing direct contact and significantly limiting parental responsibility, the process would beg understandable questions as to ‘why’ the court had taken such a course.

By way of a secondary argument, Mr Geekie also submitted that, in circumstances where the court’s previous findings as to coercive and controlling behaviour have been fully published, the legal profession and others would have a legitimate interest in understanding how the court had analysed those matters in the context of determining the overall welfare issues relating to these children.

Mr Justin Rushbrooke QC made further submission on behalf of the mother in which he accepted that the default position is that the welfare judgment should not be published and to do so would be an unusual course, albeit that there is always a public interest in the publication of a judgment. Mr Rushbrooke drew attention to the recent Court of Appeal decision in the case of Griffiths v Tickle [2021] EWCA Civ 1882 in which the court upheld a decision to publish findings of fact that had been made in Family proceedings against Mr Griffiths, who is a former MP. The Court of Appeal relied in part upon the established right of an individual to ‘tell their story’. The judgment of the court also (for example at paragraphs 66 and 71) relied upon the professional assessment of the child’s guardian, who had concluded that publication was in the welfare interests of the child; a point which has obvious resonance in the present proceedings where the guardian’s concluded view is in favour of publication of the judgment (subject to some redaction).

For His Highness, Mr Richard Spearman QC submitted that for the Welfare Judgment to be published would be an exceptional and unprecedented outcome. Insofar as the mother relies upon the need for continuity with the previous practice in these proceedings of publishing each judgment, Mr Spearman submits that this is a wholly false point. The welfare evaluation with respect to the future care of the two children is in a very different category from the previous judgments relating to the underlying facts or matters of law. Mr Spearman asserted that, if the mother’s fears are accepted, then they can be met by the publication of an appropriate summary. Whilst a fuller account than had initially been put forward on behalf of the father might be needed, that would be sufficient to explain the outcome of the welfare determination, without the need for any further detail. The guardian’s team had produced a fuller summary, and this was now supported by those acting for the father as being the right level of detail and there was no need to publish any further detail.

In further submissions on behalf of the father, Lord Pannick QC stressed that the Welfare Judgment had not been written for publication. That fact, and the already high level of media attention to the case, indicated that there was an enhanced need for care when considering publication as the risk of harm to the welfare of the children is high. Lord Pannick warned against the risk to the children at school if the parents of other children can read intimate details of the welfare determination. All that is needed is a publicly available authorised narrative in the form of the summary prepared by the guardian’s team.

For the children’s guardian, Ms Deirdre Fottrell QC submitted that publication of the Welfare Judgment would be both highly unusual and counter-intuitive. The starting point was therefore against publication. The approach of Ms Magson has, Ms Fottrell submitted, been both cautious and thoughtful. Ms Magson is, as the court found in the Welfare Judgment itself, an experienced and insightful guardian. She regards the issue as ‘finely balanced’, but two factors have caused her to come down in favour of publication of the judgment, rather than a summary. The first factor is the ascertainable wishes and feelings of the children on the issue, and the second is the mother’s own views.

[redacted].

Of the two key points, the second is given significant weight by Ms Magson. She has been very struck by the level of the mother’s anxiety as described in her statement. It is not for the guardian to gainsay the mother’s assessment of the risks here. The mother’s judgment on issues with respect to the welfare of the children has already impressed both the guardian and the court, as is reflected in the Welfare Judgment itself. Her Royal Highness is the children’s primary carer and her own stability is vital to their continuing welfare.

Having weighed all of the relevant factors, the guardian has concluded that the issue of risk from a distorted or wholly false account being circulated (which she accepts is a risk) can only be met by a full account of the court’s reasoning being made public. Ms Fottrell submitted that no summary could be an acceptable substitute for the fullest account of the court’s reasoning and conclusions.

As will have been plain to those who attended the hearing, I, like the guardian before me, have not found this to be an easy or straightforward decision to make.

Approaching the issue from first principles, the case against publication appears strong. Whilst the Family Court regularly publishes judgments where issues relating to the welfare of children have been determined, invariably the identity of the child concerned is not disclosed. Researches by counsel have failed to find even one example of a child being publicly named as being the subject of a judgment in which their future welfare is determined. That firmly established default position is reinforced by the statutory scheme in AJA 1960, s 12 and CA 1989, s 97. In the context of the ECHR, and the balance that must be struck in each case between competing rights under Articles 6, 8 and 10, there will often be little or no public interest in naming individual children and the balance will, therefore, be heavily weighted against doing so.

The changes proposed in the recent Transparency Review do not seek to go behind the principle that the identity of children who are the subject of proceedings before the Family Court should remain confidential, even if, as the review recommends, the court process itself is made more open to public reporting and scrutiny.

The circumstances in the present case, however, plainly differ significantly from the ordinary run of children cases. The children are the daughter and son of two internationally known parents, one of whom is the Head of Government of a prominent and powerful State. For reasons that have been explained in previous judgments, it has been held to be in the children’s best interests, particularly with respect to their personal safety, for the court’s previous findings of fact to be published. Separately, the court’s judgment relating to the parties’ finances has also been made public. Understandably, given the content of those judgments and the public profile of the parents, the court’s findings of fact have been very widely reported in the UK, in the Middle East and elsewhere. A great deal of detailed information about these two named children’s past and present circumstances is already in the public domain.

As a result of the degree of information that is already out there, and known to the media and the public at large, about the children, all three parties before the court have, for some time, accepted that a statement should be published which, as a minimum, records that the proceedings with respect to the children are now at an end and explains in short terms what orders the court has made. For my part, that was also the position that I had in mind when preparing the Welfare Judgment. At that stage, my preliminary, inchoate, view was that any such statement should only be very short and that any more lengthy description of matters relating to the children’s welfare would neither be justified by the public interest, nor compatible with the children’s welfare.

Matters, however, moved on, very significantly in my view, with the filing of the mother’s latest witness statement in which, as I have described, she stresses just how important it is for the children’s safety and wider wellbeing for there to be a full, publicly accessible and authoritative account, not only of the outcome of the court proceedings, but also of the court’s further findings and reasoning.

Those acting for the father do not take issue with the content of the mother’s statement and she was not called to be cross-examined. It is, therefore, to be accepted as a reliable description of her perception of these important matters and of her considered opinion, as the children’s mother, as to the outcome. Going further, my reading of the statement is that it is a coherent and well reasoned account of the relevant issues and of Her Royal Highness’ considered evaluation of them. In keeping with the mother’s consistent view as to the protective value of publicity in relation to the past judgments, once again she advises that full publication (subject to necessary redaction) is required.

The mother’s opinion is, in large part, based upon her apprehension that, if any leeway is available to him, the father and those acting for him would populate any informational gap or vacuum with their own account which, on the basis of past behaviour, would be a false one aimed at manipulating public opinion in his favour in a manner detrimental to the children and their mother. Previous findings of the court with respect to statements made by the father support the mother’s evaluation of the potential for just such an outcome. Recent posting of photographs on Instagram by those close to the father, which appear to be a deliberate attempt to suggest that His Highness is back in face-to-face contact with his son, are strongly supportive of the accuracy of the mother’s prediction.

I share the view of Ms Magson, summarised at paragraph 25 above, that substantial weight is to be afforded to the reasoned opinion of the children’s mother. The court has already, when making the welfare determination itself, identified the impressive and wholly child-centred manner in which Her Royal Highness has discharged her responsibility as a parent of her two children over the past three years. In a way that is simply not open either to Ms Magson, or to the court, Her Royal Highness has an insight into, and an understanding of, the father, those around him and the wider cultural issues. Unless it has good reason not to do so, there are strong grounds for the court to respect and to follow this mother’s opinion on the issue of publication.

Further, but in the same context, where, as here, the court has recently determined that one parent is to be entrusted with a wide degree of autonomy in matters relating to the children’s welfare, there are sound reasons for placing a premium upon that parent’s views on the issue of publication.

Separately, the views of Jalila on publicity, as expressed to the guardian, have recently changed. Save for the protection of particularly private information, she favours publicity. [redacted]. Jalila is now 14 years old. She is an intelligent and mature individual, whose considered views must attract substantial weight on this important issue.

Thirdly, in terms of the attribution of weight, separately and independently, the professional opinion of Ms Magson in support of publication of the judgment must also be afforded significant respect by the court. That is particularly so because of the very favourable view that I had already formed of the way in which Ms Magson had undertaken her professional duties at the time of the substantive welfare hearing. In addition, it is plain that she has brought anxious and careful consideration to bear on the current issue of publicity before, on balance, moving to favour publication of the judgment rather than a summary.

These powerful considerations must, however, be weighed against the very firmly, and rightly, entrenched default position in favour of confidentiality which I have already outlined. I place very little weight on the asserted need for consistency arising from the fact that all of the previous judgments have been published; the Welfare Judgment is in a separate category and requires a bespoke evaluation without any presumption as to publicity that may arise from the manner in which the earlier judgments have been approached.

In considering this issue, I have very much in mind that the children are approaching a sensitive stage in their education. It is hoped that this small family will develop a wider group of social contacts and friends. There is plainly a risk, as Lord Pannick describes, of intimate details being picked up from any publicity and used to Jalila and Zayed’s detriment by children and/or parents connected with their respective schools. On the other hand, Her Royal Highness is concerned that, unless there is full publication, there is the potential for greater harm to be caused by those same children or parents inadvertently picking up and deploying untrue or manipulated accounts.

Drawing these matters together, I am now persuaded that a much fuller account of the court’s welfare determination must be published. A solid, detailed and clear account is needed to meet the legitimate concerns of Jalila and her mother. In addition, publication of the judgment will enhance the arrangements for the children’s safety. That means that a short statement simply recording the outcome that I had previously considered would be insufficient. I am reassured that my change of view on this is justified by the fact that the father, too, has revised his position so that he now supports the publication of a statement in line with the detailed draft prepared on behalf of the guardian.

The decision therefore moves to the choice between a full and detailed statement or publication of the judgment itself, subject to some redaction. The guardian’s draft statement runs to over 1,700 words. It includes, in summary form, a description of each of the factors that were seen to be of relevance to the welfare determination. It therefore contains a good deal of personal information about the children and their parents; information which would normally be confidential, but which it is now agreed should be made public. What the summary does not do is recite the detail from the court’s previous findings and from the evidence adduced at the welfare hearing, which are set out in support of evaluation of the identified factors. The summary, also, does not include a full account of the court’s welfare analysis.

I consider that the draft is a good and accurate summary, but, having now read it a number of times, I am concerned that, having given so much detail, it begs the question of what further material the court took into account, and how it did so, in forming its ultimate conclusions. Put another way, whilst the summary aims to capture the headline points in the court’s evaluation, and in doing it puts those points, and the fact that the court considered them relevant, out into the public domain, I am concerned that, by omitting the underlying analysis, the summary does not do justice to that analysis.

In any case there will be a spectrum, in terms of publicity, which runs from total confidentiality, at one end, over to total openness at the other. As the needle in favour of publicity moves across such a spectrum, there must come a moment when a tipping point is reached where so much information is to be published that little is to be gained by withholding the remainder. My considered view is that the degree of publicity represented by the guardian’s draft falls into this category. So much of the structure and the headline points made in the Welfare Judgment is now, with the father’s agreement, to be published, that it is difficult to identify any principled reason for withholding publication of most of the remainder.

The mother’s case, of course, is that, in any event, publication of the whole judgment (subject to redactions) is required as being in the best interests of the children and, in particular, for their personal safety. I have already concluded that very substantial weight must be afforded to the mother’s advice, and Jalila’s opinion, and, in turn, to the guardian’s endorsement of their positions. Regrettably, the factual basis upon which the mother’s stance is based, that is the potential for the father and those acting for him to utilise any summary or informational vacuum created by the absence of full publication to promulgate untrue accounts of matters relating to the children’s welfare, is sound. Her appraisal of the risk of harm, which would be continuing rather than time-limited, from false information is, in my view, entirely reasonable. In the circumstances, I am persuaded that she is right that it is therefore necessary to remove the potential for conjecture, manipulation and/or falsehood as to the content of the judgment by its publication, rather than publishing only a summary.

I am also persuaded that there is reassurance, confidence and comfort to be drawn by Her Royal Highness and the children from knowing that an authoritative, accurate and clear account of these matters will be publicly available, world-wide, if the judgment is published.

In reaching that conclusion, I also accept that, in a case where so much information has already been published about these children and their circumstances, the degree of further intrusion into their right to privacy by publishing the judgment is not nearly as extensive as it would be were there to have been no advance publicity.

Further, although this is a point of only modest weight, in circumstances where a great deal of information from these proceedings has already been made public, there is a measure of public interest, and legal/social work professional interest, in publication of the detail of the court’s conclusions with respect to the children’s welfare and domestic abuse at the end of this extensive litigation.

I will therefore direct that the Welfare Judgment, subject to certain redactions which I will indicate in a separate document, is to be published.