Al-Jeffery v Al-Jeffery (Vulnerable adult; British citizen) [2016] EWHC 2151 (Fam)

Case No FD15F05038

Case No FD15P00620

[2016] EWHC 2151 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Wednesday, 3 rd August 2016

Before

MR. JUSTICE HOLMAN

(Sitting throughout in public)

Between

Al-JefferyClaimant

Al-Jeffery (Vulnerable adult; British citizen)Defendant

B E T W E E N:

AMINA AL-JEFFERY Applicant

- and -

MOHAMMED AL-JEFFERY Respondent

(Vulnerable adult; British citizen)

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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.

J U D G M E N T

Introduction and the issue

[1]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 16¾. 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.

[2]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.

[3]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.

[4]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

[5]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.

[6]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.

[7]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

[8]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.

[9]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 unwillingly, but at the insistence of her father and in obedience to him. The mother later returned to Wales. Amina has remained living in the fourth floor flat of her father in Jeddah.

[10]Immediately after Amina travelled to Jeddah in April 2012 proceedings were commenced here on her behalf; also, as again now, pursuant to the Forced Marriage Act and the inherent jurisdiction of the court. At that time Amina was still a child and her litigation friend was her solicitor, Miss Anne-Marie Hutchinson OBE, acting for her then, as again now. Those proceedings were finally completely dismissed and all orders discharged on 19 April 2013 upon the instructions of Amina herself given at a meeting held with the British Pro-Consul in Jeddah at the Hilton Hotel in Jeddah. That meeting is evidenced by a memorandum dated 10 April 2013, now at bundle p.F68 and 69. Amina is recorded as saying that everything she had said about her parents was lies. She seems to have accepted that she would continue living in Saudi Arabia, although “she does not particularly like living” there. She asked that “the charges”, meaning presumably the proceedings, be dropped against her parents. So they were.

[11]Amina now says in effect that she was tricked and lulled by her father into dropping those charges or proceedings by untrue statements made to her and by promises which he did not later keep. She says that she was kept under very close constraint, but in late 2015 she appears to have succeeded in evading that constraint and did for a short period stay in some form of “refuge” in or near Jeddah. From there she once again communicated directly with each of the Forced Marriage Unit of the Foreign and Commonwealth Office in London and with Miss Hutchinson. Miss Hutchinson has never since been enabled to have free, private and unrestricted communication with Amina for the purpose of taking detailed instructions and making a detailed formal witness statement. As a result, I only really have two sources of “evidence” from Amina: the emails she sent to Miss Hutchinson in early December 2015, and the father’s representative’s note of a meeting at the Hilton Hotel in Jeddah on 23 June 2016 to which I will later refer. The emails sent on 7 December 2015 are now at bundle p.C86. They refer to her younger sister who is, or was at that time, also in Jeddah. The first reads:

“Last time I was under their mercy – it takes one call from my family in the UK to tell my father what to do with me. I am a threat to their secret, they want me to die; I know it, but they have literally told my little sister that before she came to Saudi a few months ago. It can’t be like that again, this time they will kill me or throw me in a Saudi girls’ prison, which is basically a 19th century psychiatric home. She is with me. It’s very risky now, will expand on everything when I get the chance. But do you think I can leave? Is it possible? Was it possible last time?”

The second email reads:

“… I attached the photos on this email, but I must stress that we are under constant surveillance – so we had to take the photos under false pretences; as if we were frivolous girls posing and not capturing the massive cage behind us. But the agenda should be clear to you.”

[12]It is to that email that two photographs are attached depicting bars within the flat, which I will later describe. The third, longer email refers to her “physical and psychological abuse”, being “starved … in the stretch of the year, amongst other abuse of power”, and to “my solitary confinement”. It refers to “torture” and that she was “refused to go to the toilet and allowed to defecate and urinate in [her] room, then persecuted for it”. I have quoted selectively from that third email in view of the terms of para.6(b) of the order made on 5 July 2016. Amina suggests at the end of the email that members of her family believe that she is dishonouring them, although she says that she has done nothing, and that they are now afraid that she will “expose their brutality”.

[13]In para.4 of her statement dated 16 December 2015, now at bundle C3(c), Miss Hutchinson described a telephone call she received about that time from Amina, in which Amina said that she had been tricked into withdrawing the proceedings in April 2013 and that:

“Since that time she has been kept against her will in Saudi Arabia and in her father’s home in Jeddah … she has been severely mistreated … there were times when she has been locked in what she describes as ‘a cage’ and that she has been physically abused. There have been times when she is not allowed to leave her room to go to the bathroom and would have to use her room as a toilet for which she would be reprimanded. She has explained various other deprivations, including starvation and being kept without water and having her head smacked against the wall.”

[14]Amina appears also to have been in direct communication with the Forced Marriage Unit of the Foreign and Commonwealth Office who wrote a letter dated 14 December 2015 to Miss Hutchinson’s firm, now at bundle C3H. That letter says in parts:

“She has now been in contact with … the Foreign and Commonwealth Office and has again asked for help and consular assistance. Contact has now ceased and consular staff in Saudi have informed me that Amina is in a secure shelter provided by the Ministry of Welfare. We are unable to elicit any further information about this shelter or the type of help they provide. The risk is also that family may be able to find her and remove her from these said facilities. Amina is a dual national which is not recognised in Saudi. As her British nationality is not acknowledged by the Saudi authorities, there is little that we can do to assist her. We believe that steps now need to be taken to ensure Amina is brought back to the UK to ensure her safety can be guaranteed; an order would be the most effective way to assist Amina.”

That letter is signed by a specialist case worker in the Forced Marriage Unit.

[15]On 18 December 2015 Miss Hutchinson issued the two sets of proceedings to which I have referred under the inherent jurisdiction and, using the prescribed forms, for a statutory forced marriage protection order under Part 4A of the Family Law Act 1996. There was an initial application for, and grant of, a without notice order on 17 December 2015 which included at para.14 an order that the father (being one of the then several respondents) shall return Amina to England and Wales. There has been a series of subsequent hearings and orders. At the hearing on 12 May 2016 the father was represented by counsel, and since then he has engaged continuously with these proceedings. The order of that date recited, in summary, that the father did not accept the jurisdiction of this court to make orders in relation to Amina; he would make her available to be interviewed at the Saudi Ministry of Foreign Affairs with a representative from the British Embassy present; and he would make her available to give evidence by video link. A direction was made for:

“… a fact finding hearing … [last week]. The jurisdiction of this court, and whether that jurisdiction should be exercised, shall be addressed as a preliminary matter at the outset of the hearing subject to the trial judge’s view.”

[16]Notwithstanding the father’s position as recited in the order and summarised above, the order made three orders, each qualified as being “without prejudice to the issue of jurisdiction”: [i] continuing forced marriage protection orders; [ii] for the immediate return of Amina to England and Wales; and [iii] directing the father to make Amina available for an interview at the British Consulate prior to the fact finding hearing. By the time of the next directions hearing on 5 July 2016, Amina and the father were represented respectively by Mr. Henry Setright QC and Mr. Marcus Scott-Manderson QC who represent them again at this hearing. The order recited that the court had determined that “arrangements must be made for [Amina] to give instructions without fetter or any perception of fetter to her solicitors privately and confidentially” at the British Consulate in Jeddah. Paragraph 15 of the order itself ordered the father to facilitate the attendance of Amina at the consulate “… in order to enable her to speak privately and confidentially to her solicitors from those premises, for the purpose of giving instructions for, and approving, the statement” which another part of the same order ordered Amina to file and serve. I will for convenience refer to that particular provision of the order with regard to attendance at the consulate as “the paragraph 15 order”. Overarchingly, the order of 5 July repeated by reference the order to cause the immediate return of Amina to England and Wales.

[17]The father has not returned Amina to England and Wales and has not complied with the paragraph 15 order. As a result, Miss Hutchinson has not been able to speak privately and confidentially and without fetter or any perception of fetter to Amina, and she has not in fact been able to communicate at all with Amina since June 2016. As to the father’s non-compliance, Mr. Scott-Manderson said at the hearing that:

“The father consciously decided in breach of paragraph 15 not to take her to, or make her available at, the consulate, although he knew all the detailed arrangements which had been made and no excuse or explanation (e.g. ill health, car breakdown etc.) is put forward. There is an impasse.”

The result was that the fact finding element of the hearing which had been fixed for last week was completely ineffective. Mr. Setright and Miss Hutchinson have no recent instructions from their client. They have no “proof of evidence” from her. They have been unable to take her through, or seek her instructions upon, the several statements and exhibits filed by or on behalf of the father. And, of course, they have been unable to prepare any statement from her. The father did, as required by another paragraph of the order of 5 July 2016, take Amina to the Hilton Hotel in Jeddah last Monday at the start of the hearing, from which evidence was to be given by each of them by video link (or, as I was told on the day, by Skype) to the Royal Courts of Justice. However, Mr. Setright was, in my view quite rightly, unwilling to embark on any consideration of oral evidence in those circumstances. It is elementary that a client is not, as it were, put into the witness box blind. It is elementary that an advocate does not cross-examine without having his own client’s instructions as to what the case is. There were in any event no safeguards of any kind as to the circumstances of Amina in the hotel or what pressures, influence or “fetter” she might be under. For these reasons, too, I myself would in any event have been quite unwilling to embark upon the projected “fact finding” exercise.

[18]I wish, therefore, to make crystal clear that the reason I did not, and could not, embark upon the “fact finding” that had been scheduled for this hearing was, and is, entirely because of the conscious decision of the father not to comply with the paragraph 15 order. It is his responsibility, not mine, that I am impelled to decide the outcome of this hearing on a consideration of the documents, untested and un-supplemented by any oral evidence. Precisely because that evidence is lacking, I do not by this judgment make any considered judicial finding as to any of the disputed facts. I merely record them, although I must comment upon them.

[19]Although the father consciously did not comply with the paragraph 15 order, with its more rigorous terms and safeguards and the express purpose of enabling unfettered communication with Miss Hutchinson, he had complied with the earlier order of 12 May to the extent of permitting Amina to have a meeting at the Hilton Hotel in Jeddah with a British consular representative, Amna Ghulam. The father personally was not in the room. However, he insisted on a lady being present who has been described during the hearing as “the father’s representative”. That lady made a note, which has since been typed up in English and is now at bundle p.C165, and she has made a statement that her note is accurate. In view of para.6(b) of the order of 5 July 2016, I will omit parts which make or include allegations against individuals other than the father who is now the sole respondent to these proceedings, but the note requires to be read in full by any court subsequently engaged in this case. “Note: Amina appears dishevelled, strangely unlike her sister covered with a niqab. She appears to have written ‘kill’ or ‘killing’ on her right wrist with blue ink and red or pink ink. When asked what were her (Amina’s) future plans, if she wanted to stay in Saudi Arabia or if she wanted to leave the country, Amina responded that she would like to leave the country but her family are not allowing her to leave. Amina stated that she has been locked up in her room for over a year. Amina stated whilst the British court case is continuing in the UK her family have informed her that she will only get her freedom (study and work) only after the case in the UK closes. … Since [she dropped the last case] Amina stated she was abused and locked up, which is why she would like to return to the UK. When asked why is her older sister allowed to have a phone and she is dressed well and not covered, Amina responded that two years ago she kissed a guy (in KAUST [a university in Saudi Arabia]) who proposed to her twice but her family refused him. Amina stated her family manipulated her younger sister even before she came to Saudi Arabia that Amina is an evil girl and that she should not speak to Amina. Amina continued to say that when her younger sister came to Saudi she already had a bad image of [Amina] but when she came to Saudi Arabia she found a locked up girl with a shaved head. … ... [Her father] is the one who locks me up. And the reason for that is because she had kissed a guy two years ago. Amina was asked if she is still locked up. She responded that the metal bars are no longer in her room but she is still locked up in the house and she is not allowed to use the phone or internet. … … Amina confirmed that the reason why she ran away and build a case … is because she wants to study, work and get married. When asked if she wants to get married by her way or her family way, Amina responded that she does not care who she marries, she wants to get out in any way possible … When asked why she chose to come back and live with her family after running away and not choose the shelter, Amina responded that she did not have the choice, the police threatened her with jail if she did not return to her father. She continued to say that her father has the choice to take her to prison and that he always threatens her with it, she also added that the Saudi police advised her father to take her to prison after hearing what she did. Amina stated that she would like to inform the judge that she is put in a difficult situation because she will get in trouble with her family if the case does not end. But at the same time she does not trust her family. When asked to clarify what she wanted, Amina responded that her family wants her to say that she lied about her accusations. She stated that it is not true. And that the judge should know that she is not lying. Amina is afraid that if the case continues her father will continue to hit her. When asked if her father still hits her Amina responded yes. She stated that her father recently threatened her that if she decides to leave he would take action against her. Amina continued to say that her father pretends to be cooperative with the Saudi authorities, she stated that he once informed a Saudi judge that if she wanted to complain about him he would take her to the police himself. Amina stated that she had asked her father to take her to the police station after he hit her and strangled her, but he refused. When asked again if her father hits her, Amina responded yes … Amina is afraid for her safety if she cannot leave Saudi Arabia. She asked that the court would allow the British Embassy to check up on her every month … She also stated that [she was] prevented from going to the bathroom for one month, she was forced to urinate in a cup. She stated that she would get punished when she used her room as a toilet. Amina requested to speak with her lawyer. … By the end of the meeting Amina had a phone conversation with her lawyer in the UK. A note was passed under the table to the British representative.” When asked again if her father hits her, Amina responded yes … A note was passed under the table to the British representative.”

When asked again if her father hits her, Amina responded yes …

[20]The conversation with the lawyer in the UK was not with Miss Hutchinson but with her assistant, Mrs. Wendy Ramus. I do not know what was said, being privileged, but in any event it was not the private, confidential and lengthy opportunity to take instructions without fetter which the later paragraph 15 order required. The consular representative, Amna Ghulam, with whom the meeting took place, has supplied to Miss Hutchinson by email her own account of the meeting. The existence of the email has been disclosed to the court and to the father’s lawyers but the contents are stated by Mr. Setright to be privileged, as the intended purpose of the meeting (thwarted by the presence of the father’s representative) had been to provide a conduit for information and instructions from Amina to her solicitor, and her lawyers here (who cannot obtain her instructions) do not consider that they can, or should, waive the privilege. As the father’s representative’s note was, of course, prepared in the first instance for the father, I do not know what else may have been said which the father’s representative decided not to record. Mr. Setright indicated in veiled terms, but in open court, that Amina’s team consider that Amina could be at heightened risk if her father saw the consular representative’s own email. The note of the father’s representative refers at the end to “a note was passed under the table to the British representative”. As I understand it, that note has not itself been transmitted here to London. Photo shots of it made by a mobile phone have been. They are apparently hard to decipher, but in any event Mr. Setright asserts that similar considerations apply to it as to the consular representative’s own email record and they claim privilege. I have not seen it and I do not know what it says.

[21]The father himself has made a statement. He describes how it was his decision to bring Amina to Saudi Arabia in 2012:

“I decided to do this as Amina was not focusing at school. Also, despite being aged only 14-16, she was going to clubs, taking drugs (marijuana), alcohol and spending time with older men.”

The father says that he accepts that at times Amina has wanted to return to England and Wales and that he has been, and remains, against this:

“… as I consider Amina would only have a proper education and future if she remains in Saudi Arabia. I am certain that if Amina were to return to England and Wales she would revert to taking drugs and consuming alcohol, going to clubs and seeing older men. My wife would not be able to control her challenging behaviour. Amina was also very aggressive and would regularly intimidate and steal from her mother what little money her mother had.”

The father agrees that Amina wanted to return to England and Wales, although he claims at para.11 of his statement made on 16 June 2016 (now at bundle p.C119) that about a month before that she decided she now wishes to remain with him in Saudi Arabia. He denies that she currently wishes to return to England and Wales.

[22]The father himself says at para.15 of that statement, now at bundle p.C120, that when Amina ran away last December:

“… the police said they would put her in prison if she refused to come home. I spoke to Amina and convinced her to come home. I wanted to make sure she was safe and not mistreated by being put in prison.”

I comment that Amina was then aged about 20½ when the threat apparently was that she would be imprisoned by the police if she did not return home. The father says at paras.16 and 17 of his statement, now at bundle p.C120 that:

“16. Amina was a rebellious teenager and twice ran away from our home in Jeddah. To stop her running away, I decided to put up a barrier partition, which I locked only when I went to work. I was only at work for several hours each week. During that time, Amina had access to her bedroom and the bathroom. She did not have access to the kitchen as our kitchen is close to the front door so I could not include it in the partition. However, I always provided her with food and drink before leaving for work and was only away for a few hours, three times each week. 17. Amina was not therefore locked in a ‘cage’ without a bathroom and food and water. The barrier partition was up for around 4-5 months. It was taken down a number of months ago upon the advice of the authorities.”

[23]The father denies that Amina has been in any way physically abused whilst in his care, and he denies that she has ever had to use her bedroom as a toilet. With regard to marriage, the father denies that he has ever tried to force marriage upon her. He says that he would be consulted as to the suitability of anyone she chose to marry. If he considered the person unsuitable, a judge can allow the marriage to proceed against his wishes if the judge is satisfied that the suitor is nice and suitable. He says that for several months Amina has been trying to pressurise him into agreeing to her marrying a much older cousin, of which he disapproves.

[24]In a later statement dated 15 July 2016, now at bundle p.C173, the father comments on his representative’s note of the meeting on 23 June 2016. He says that none of Amina’s claims are remotely true. He says:

“I truly do not know what to do any more. I just want this to end, but I want my family to be protected from [sic] Amina. I really do not know what she will do next. It scares me to think of the level of manipulation and lies she will go through … I have tried my best with Amina, and she has done her best to misguide, accuse and manipulate rather than to work hard and gain independence. I am heartbroken by this, but I will continue to look out for my daughter’s best interests.”

[25]During the course of the hearing Mr. Scott-Manderson said on instructions that the father sees this case as an onslaught brought against him and his family, not by the court but by statements that were made by Amina which are untrue. He sees himself as under threat of imprisonment by the English court for breaking its orders, all as a result of allegations which are themselves false ones. Mr. Scott-Manderson said that the father has a deep-rooted belief entrenched in him that were he to bring his daughter to England, she would go back to taking drugs with the dangers inherent in that and that her life would be at risk from the drugs and the associated lifestyle. Mr. Scott-Manderson said more than once that the father sees his daughter as being “on the edge of a cliff” and he is trying to save her. The court may not see it like that, but that is how he sees it. The father is concerned that the publicity in the media and online has been one- sided and he wishes his point of view to be understood and to come out. Mr. Scott-Manderson said that the father is trying to save his daughter’s life and is engaged in a titanic struggle to do what he thinks is best for his daughter.

[26]That essentially concludes this summary of the narrative and the evidence, save for one important matter to which I must now turn, being the judicial proceedings in Saudi Arabia.

The proceedings in Saudi Arabia

[27]In or about April 2016 the father himself instituted proceedings against Amina in the Court of Civil Affairs in the Municipality of Jeddah. He made a “request from a parent seeking parental control over his child for the purposes of caring and supervision”. This was heard before a judge of that court on the equivalent date to 12 April 2016, and a translation of the resulting court document is now at bundle p.D12. It recites that each of the father, as plaintiff and Amina, as defendant were present. The document records that the father said “… being her legal guardian, I demand that she fulfil her obligations and Sharia’s law to obey me in my desire to fulfil my obligations in caring, and guiding her.”

[28]The document records that:

“Following extensive dialogue and discussions between the two parties, both of whom possessed full personal capacity, reconciliation was achieved and the following agreement between the two litigants: First: The defendant agreed to obey her father within the precepts of Allah, and undertake not to challenge his authority over all her affairs and not to leave the house without his permission. Second: The defendant, Amina, decided to withdraw her litigation procedure at the British High Court London against her parents … concerning the law suit of forced marriage. Furthermore, she has no demands whatsoever, in respect to this case or any auxiliary cases or accusations that might be pending as a consequence in British Courts of Justice, and intends to close the file. She intends to meet a British Embassy/consular official through Saudi Foreign Affairs Regional Office in Jeddah in order to present him this document with a translated version, so that they may initiate the necessary procedure to end all litigations and close related files. Third: Her father being the plaintiff, undertakes not to stop her from pursuing her education, or career prospects as may be guarded by Sharia’s laws and the lawful practices in the Kingdom. Furthermore, he is not to raise objection to her desire to marry anyone she wants so long as he is appropriately qualified in terms of his good conduct, behaviour in ways which pleases Allah.”

After making reference to the sayings of Allah and the Prophet Mohammed to the effect that reconciliation is best, the document concludes that:

“Since this reconciliation concur with Sharia’s provisions, and legal procedures, I have ruled that the two parties are committed to adhere to this reconciliation and the agreement as detailed above. May Allah grant success.”

[29]During the present hearing each of Mr. Scott-Manderson and Mr. Setright placed reliance upon the fact of those proceedings and upon the terms of that document. For the father, Mr. Scott-Manderson argues that there have already been actual legal proceedings between these parties in the state of their habitual residence of which they are both citizens, and that comity requires that this court should not now act when that court has already acted. Further, if Amina has continuing concerns or complaints, she can, he submits, return to that court and raise them with it. Mr. Setright argues that the very language of the document itself shows how far Amina is now under the constraint and will of her father. Although she is aged 21 and, as that document says, possessed of full capacity, she has undertaken not to challenge the authority of her father over all her affairs and not to leave the house without his permission. This undertaking appears to be of indefinite duration, although it may implicitly cease upon her marriage, the prospect of which is contemplated by the third agreement.

[30]With regard to the proceedings generally in Saudi Arabia and their outcome, Mr. Setright submitted as follows:

“If you have a vulnerable young adult who is placed by a court in a position where she is positively encouraged to reach a compromise with the alleged perpetrator of abuse upon her, that is not a situation which appears likely to enhance or encompass her protection. On the material that we have, it appears likely that the applicant will have been overborne in those circumstances.”

The “cage”

[31]I refer under a discrete heading to the issue of a “cage” because I am aware that this has given rise to some rather sensational headlines in the media. Further, in two national newspapers last Saturday (it may have been in more) I myself saw large colour pictures of the photograph now at bundle p.C84. It is the case that Amina herself has referred to her being kept “in a cage” or “in a massive cage”. This may have led headline writers and/or their readers to visualise that she was being kept actually in a cuboid cage of the type that an animal might be kept in with some form of bars all around and on top of it. That is not what happened; and the purpose of this section of this judgment is to create some objectivity and proportionality, and to describe as best I can what appears actually to have happened. I stress, however, that I have not heard any oral evidence and I have only seen the two photographs at pp.C84 and 85.

[32]Within the father’s flat there were two vertical barred panels. One, now seen at p.84, is yellow. It is a large metal framework of bars upon which is affixed, probably by welding, a metal diamond shaped lattice grille. Each diamond shape in the lattice is smaller than an adult hand. It is the sort of security structure that could be fixed over windows or doors to prevent entry, or could be used as a security partition in, for instance, a store room. It is a form of caging, but not itself a cage. The other, now seen at p.C85, is, in the photograph, a mid-brown colour. It is roughly the size and shape of a full height vertical door. It consists of a hinged metal frame with metal vertical bars through which an adult could not squeeze. It is the sort of security structure that is occasionally seen as an added security door or gate outside a front door, or could be used as a security door or gate in a corridor. It, too, is caging, but not itself a cage.

[33]The father admits that both these structures were affixed within his flat. He says through Mr. Scott-Manderson that the yellow lattice grille is simply affixed over external windows to prevent Amina from shouting out to the street below, the flat being on the fourth floor. From the appearance in the photograph at p.84 I am sceptical about this. Amina herself is in the foreground, with the grille beyond her, so the windows could not be in the foreground but off the photograph. Beyond the grille there does, indeed, appear to be a wooden framework which appears to contain glass panes, but they do not have the appearance of external windows. They do have the appearance of an internal glazed screen or partition, like a “room divider”. I say that, because it appears from the photograph that in part of the area beyond the grille there is a hanging cupboard or something similar, and above that the appearance of artificial electric light shining through from beyond. The father says that the glass panes are, indeed, external windows and that the light is merely a reflection from a light within the room. The father says that the purpose of the brown barred door or gate seen at p.C85 was, indeed, to restrict Amina’s access to parts of the flat, including the front door, but that it was removed several months ago. He describes it as a “barrier partition”.

[34]On the father’s own account, the purpose of both these structures was to restrict Amina, whether from access to parts of the flat and the front door, or from simply looking or calling out of the window. Further, the father does admit that when he himself leaves the flat to go to his part time work he does lock her in. I conclude that Amina was not literally in a cage, but that her freedom of movement was, and is, admittedly constrained in a way that I would regard as severe, having regard to her age and full capacity. She was, and, so far as I am aware, still is, deprived of her liberty and could be described as “caged”, although not “in a cage”. The application for a forced marriage protection order

[35]The way this was put at para.10 of the statement made by Miss Hutchinson on 16 December 2015 at the outside of these proceedings (now at bundle p.C3e) was that:

“I also seek a forced marriage protection order. The reason for that is that Amina states her father is her upper guardian and has complete control over her. However if he … wished to avoid the process [he] would arrange for her marriage, thus passing full control to her husband.”

Although that reasoning is a little Delphic, the gist is, as I understand it, that there is a risk or fear that if the father decided he no longer wished to be responsible for Amina as her guardian he could, and would, divest himself of that responsibility by “arranging for her marriage”. There is, of course, an important distinction between a marriage which is “arranged” (which the law of Wales and England tolerates) and one which is “forced”. In any event, none of the communications from Amina since last December, nor the father’s representative’s note of the meeting on 23 June 2016, nor indeed the letter from the Forced Marriage Unit of the Foreign and Commonwealth Office dated 14 December 2015, contain any reference to any plan or attempt by her father to force Amina into marriage. It is not the practice of the court to restrain behaviour by an injunction, unless there is credible evidence that the behaviour has occurred or is threatened. Here there is no such evidence at all.

[36]It is, however, true that in part of the note of 23 June 2016 quoted above it is recorded that “when asked if she wants to get married by her way or her family way, Amina responded that she does not care who she marries, she wants to get out in any way possible”. This led Mr. Setright to argue that by making her life so intolerable that “she wants to get out” the father is “forcing” her into marrying anyone, even if not the man of his choosing. Mr. Setright formulated his proposition as follows:

“If a person, B, so ill treats and exerts control over A that A marries or attempts to marry anybody, whoever they may be, in order to remove herself from that ill treatment and control, B forces A, or attempts to force A, into a marriage.”

Mr. Scott-Manderson characterised this argument as involving some form of “constructive forced marriage”. In my view, with respect to Mr. Setright, the argument is oversophisticated. A person may, indeed, marry as a means of “escaping” from the domination or control of his or her parents, but such a marriage is not of itself a forced marriage. By the end of the hearing Mr. Setright was accepting that there is no current justification for a forced marriage protection order; and I propose to discharge all orders of a continuing nature in the proceedings no. FD15F05038 seeking a statutory forced marriage protection order, and to dismiss those proceedings. This renders it unnecessary and inappropriate for me to express any opinion on the submissions of counsel as to the territorial reach of the provisions of Part 4A of the Family Law Act 1996 inserted by the Forced Marriage (Civil Protection) Act 2007. I do, however, stress and draw to the attention of the father that the serious criminal offence of forced marriage, as enacted and defined by s.121 of the Anti-Social Behaviour, Crime Policing Act 2014 may be committed anywhere in the world if the victim is a UK national (see s.121(7)(c) of that Act). Amina is a UK national and, accordingly, if anyone were to force her to enter into a marriage without free and full consent anywhere in the world, that person would commit an offence under the law of England and Wales carrying a maximum sentence of seven years’ imprisonment.

The inherent jurisdiction

[37]In this case I have to consider the jurisdiction or power of the court to make any order from two angles or perspectives. First, whether there is subject matter jurisdiction, assuming for this purpose that both parties were present in Wales or England and all the events were taking place here. Second, and if so, whether there is territorial jurisdiction, given that both parties are present in Saudi Arabia and all the relevant events are now taking place there.

(i) The jurisdiction to protect vulnerable adults

[38]I can deal with this aspect of the case, important though it is, relatively shortly, since both counsel agree that the jurisdiction exists, is well-established, and would be engaged if the facts alleged in this case are true. The jurisdiction was exhaustively considered, described, and explained by Munby J in Re SA (Vulnerable adult with capacity: marriage)

[2005] EWHC 2942 (Fam)

. It is sufficient if I quote the following passages from that judgment:

“77. … the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder, is, or is reasonably believed to be, either: (i) under constraint; or (ii) subject to coercion or undue influence; …” “78. … (i) Constraint: It does not matter for this purpose whether the constraint amounts to actual incarceration. The jurisdiction is exercisable whenever a vulnerable adult is confined, controlled or under restraint … It is enough that there is some significant curtailment of the freedom to do those thing which in this country free men and women are entitled to do …” “84. … the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions. …”

[39]The authority of the Court of Appeal in DL v A Local Authority

[2012] EWCA Civ 253

clearly establishes that although the court should not exercise the inherent jurisdiction in a case which clearly falls within the scope or ambit of the Mental Capacity Act 2005, the inherent jurisdiction in cases or situations falling outside the scope or ambit of that Act has not been ousted. Further, as Lord Donaldson of Lymington MR said in Re F(Mental patient: sterilisation)

[1990] 2 AC 1

at 13:

“… the common law is the great safety net which lies behind all statute law, and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill the gaps is one of the most important duties of the judges.”

At para.37 of his judgment in Re SA Munby J made clear that the jurisdiction is, in substance and reality and for all practical purposes, indistinguishable from the well-established parens patriae or wardship jurisdiction in relation to children. The court exercises a “protective jurisdiction” in relation to vulnerable adults, just as it does in relation to wards of court. Munby J elaborated and made good that proposition by reference to a series of authorities which he then cited at paras.38 to 43. These authorities and others cited in them leave me in no doubt that if the facts alleged by Amina are true, and assuming they were all taking place here, the court has ample inherent jurisdiction and power to make protective orders for her protection, exercising a parens patriae jurisdiction indistinguishable from that in relation to children.

[40]Mr. Scott-Manderson submitted, however, that even if the inherent jurisdiction is capable of being engaged, “jurisdiction cannot be decided on prima facie facts”. On his submission, I cannot decide whether or not I have any jurisdiction unless and until I have first determined the true facts with regard, for instance, to constraint. I do not accept that submission. In the first place, para.15(b) of the order of 12 May 2016 made provision for the fact finding hearing, but continued “the jurisdiction of this court, and whether that jurisdiction should be exercised, shall be addressed as a preliminary matter at the outset of the hearing subject to the trial judge’s view”. That provision of that order, which was obviously drafted by counsel, including the experienced counsel then appearing on behalf of the father, clearly contemplated that (albeit subject to the trial judge’s view) issues as to the jurisdiction of the court would be addressed before, rather than after, the fact finding stage. Secondly, in Re SA Munby J repeatedly said at paras.77, 79 and 80 that the jurisdiction can be invoked wherever an adult is, or is reasonably believed to be, for some reason deprived of capacity. Reasonable grounds for belief is the trigger for the exercise of the jurisdiction, not the ultimate finding of fact, although that, of course, will profoundly affect what order is finally made.

[41]Finally, without now further labouring the point, it is only the father himself who, by failing to comply with the para.15 order, has disabled me from actually making findings of fact. It would be intolerable if, upon the argument of Mr. Scott-Manderson, I was deprived of jurisdiction by virtue of his client’s own breach.

[42]For these reasons, I am in no doubt that if all the facts were the same but occurring here in Wales or England, the inherent jurisdiction for the protection of vulnerable adults is engaged and I have a very wide range of powers. (ii). Territorial jurisdiction

[43]Amina has not in fact resided or been present anywhere within the United Kingdom since she went to Saudi Arabia in 2012. Mr. Setright conceded during the hearing that she cannot any longer be habitually resident in Wales or England. He did not concede that she is now habitually resident in Saudi Arabia. I do not propose to lengthen this judgment even further by any consideration of the authorities on habitual residence. In my view, Amina did become habitually resident in Saudi Arabia, at any rate from the date in April 2013 when the previous proceedings designed to promote her return to Wales and England were, on her application, dismissed. Even if I am wrong about that, I propose to consider and resolve this case on an assumption that Amina is now habitually resident in Saudi Arabia, and I now proceed on that assumption.

[44]As both Amina and her father are habitually resident in, present in, and citizens of, Saudi Arabia, there is only one conceivable basis for exercising jurisdiction in this case, namely her British citizenship or nationality. In the recent cases of Re A (Jurisdiction: return of child)

[2013] UKSC 60

and Re B (A child)(Habitual residence: inherent jurisdiction)

[2016] UKSC 4

the Supreme Court has twice reaffirmed that the British nationality alone of a child is a sufficient basis for exercising the inherent or parens patriae jurisdiction in relation to children. In Re A all five Justices of the Supreme Court were agreed that nationality was a sufficient basis. They remitted the case for Parker J, the judge at first instance, to consider whether she should, in her discretion, exercise jurisdiction on the basis of the child’s British nationality, although the child (still not quite three) had never visited the United Kingdom and the Supreme Court could not hold that he was habitually resident here without, in the circumstances of that case, a reference to the Court of Justice of the European Union. In Re A what Baroness Hale of Richmond (with whom three other Justices agreed) said at paras.59 to 67 is part of the ratio of their decision. That court having considered a range of authorities on the topic, it is sufficient for me to quote from para.60 “there is no doubt that this jurisdiction can be exercised if the child is a British national”. The protective nature of the jurisdiction appears from para.60 and from the citation in that paragraph from the judgment of Lord Cranworth LC in Hope v Hope in 1856 in which he had said:

“… of course, it is clear that one of the incidents of a British born subject is that he or she is entitled to the protection of the Crown, as parens patriate.”

That was obvious (“of course”) to Lord Cranworth in 1856 and no less obvious to the Supreme Court today.

[45]From para.64 Baroness Hale addressed the very different “… question … whether it is appropriate to exercise it in the particular circumstances of the case”. Lord Denning had said in Re P (GE)(an infant)

[1965] Ch 568

, cited in A at para.61, that the court will only exercise the jurisdiction abroad “… where the circumstances clearly warrant it”. At para.64 of Re A Baroness Hale referred to the submission in that case of Mr. Setright, who was appearing in that case for the respondent father who was resisting the exercise of jurisdiction. She said:

“Mr. Setright … has raised a number of important general considerations which may militate against its exercise. It is inconsistent with and potentially disruptive of the modern trend towards habitual residence as the principal basis of jurisdiction; it may encourage conflicting orders in competing jurisdictions; … In a completely different context, there are also rules of public international law for determining which is the effective nationality where a person holds dual nationality.”

Baroness Hale continued at para.65:

“All of these are reasons for … ‘extreme circumspection’ in deciding to exercise the jurisdiction. But all must depend upon the circumstances of the particular case.”

Baroness Hale then identified a number of factors which may be relevant in that case, several of which were relatively fact specific to that case. The judgment of Lord Hughes of Ombersley in Re A is largely concerned with habitual residence. At para.70(iv) he agreed that the inherent jurisdiction has always been available in the case of a child who is a British national, irrespective of the child’s habitual residence or current whereabouts.

(v) :

“… this nationality based jurisdiction should be exercised with great caution in a case where the habitual residence of the child in England is not established, but there will be some instances where it is proper to exercise it.”

[46]I draw from the authority of Re A and those judgments that the jurisdiction based on nationality alone should only be exercised with extreme circumspection or great caution and where the circumstances clearly warrant it. Beyond that, no actual test for its exercise is specified in that case. In the later case of Re B a differently constituted court was more divided. On the facts, the majority concluded that the child concerned had retained her habitual residence in England and Wales. That was dispositive of the appeal, and what was said about the alternative basis of jurisdiction based on British nationality is unquestionably obiter (see the opening sentence of the judgments of each of Lord Wilson at para.52 and of Lady Hale and Lord Toulson at para.58). But, of course, it requires the utmost respect by me. Lady Hale and Lord Toulson said at paras.59-60:

“… There are three main reasons for caution when deciding whether to exercise the jurisdiction: first, that to do so may conflict with the jurisdictional scheme applicable between the countries in question; second, that it may result in conflicting decisions in those two countries; and third, that it may result in unenforceable orders … 60. The basis of the jurisdiction, as was pointed out by Pearson LJ in In re P (GE) (An Infant) [1965] Ch 568, at 587, is that ‘an infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection’. The real question is whether the circumstances are such that this British child requires that protection. For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to ‘cases which are at the extreme end of the spectrum’…”

Lord Wilson said in para.53 of his judgment that he agreed with Lady Hale and Lord Toulson where in para.60 they rejected the suggestion that the nationality-based jurisdiction falls for exercise only in cases “at the extreme end of the spectrum”. Lady Hale and Lord Toulson continued at para.61:

“61. There is strong reason to approach the exercise of the jurisdiction with great caution, because the very nature of the subject involves international problems for which there is an international legal framework (or frameworks) to which this country has subscribed. Exercising a nationality based inherent jurisdiction may run counter to the concept of comity …”

[47]Although Lord Sumption, with whom Lord Clarke agreed, dissented on the issue of habitual residence, he did not reject or deny the existence of jurisdiction based on nationality. At para.82 he identified two classes of case in which such orders have been made “…. both of which can broadly be described as protective”. The second class “… comprises cases where the child is in need of protection against some personal danger, for example … a forced marriage or female genital mutilation …” At para.85 Lord Sumption stressed that the inherent jurisdiction should not be exercised in a manner which cuts across the statutory scheme, and at the end of para.86 he said that “the mere absence of statutory jurisdiction in the English courts cannot possibly be a reason for exercising the inherent jurisdiction. On the contrary, in a case like this it is a reason for not doing so”. At para.87 he referred to the absence in that case of “… a peril from which the courts should ‘rescue’ the child by the exercise of what is on any view an exceptional and exorbitant jurisdiction”. At para.97 Lord Clarke agreed with Lady Hale and Lord Toulson that the court must approach the use of the inherent jurisdiction with great caution and circumspection for the reasons they had given, but he concluded “as ever, all will depend on the circumstances”.

[48]I draw from the authority of Re B the renewed warning that the jurisdiction should only be exercised with great caution and circumspection, and particular care must be taken not to cut across any relevant statutory scheme, but that does not limit it to cases “at the extreme end of the spectrum”. It seems to me that at para.60 of Re B Lady Hale and Lord Toulson do helpfully indicate a test when they said “the real question is whether the circumstances are such that this British child requires that protection”. That has an echo in the words of Lord Sumption at para.87 where he referred to “… a peril from which the courts should ‘rescue’ the child …”

[49]The courts having clearly held that the vulnerable adult jurisdiction is indistinguishable from the parens patriae jurisdiction in relation to children, it seems to me that exactly the same approach as that analysed and discussed by the Supreme Court in Re A and Re B should inform my approach to the present case. The jurisdiction based on nationality must apply no less to an adult than to a child. As Bennett J asked rhetorically in Re G (an adult) (mental capacity: court’s jurisdiction)

[2004] EWHC 2222 (Fam)

at para.111 (quoted with obvious approbation by Munby J in Re SA at para.65):

“Why then should G, now an adult, be worse off than she would have been had the matters arisen if she was a child?”

[50]If it is appropriate to extend the protection of this court to a British citizen abroad when that person is 17, it cannot be less appropriate to do so just because he attains 18 or 21 or, indeed, any other age. The focus must be upon whether the citizen requires that protection and upon the peril from which he may need to be rescued; not upon whether he happens to be above or below the age of 18. Further, although there is a statutory framework (including the provisions of EU Council Regulations) which regulates the exercise of jurisdiction in relation to children, there is none in relation to adults. I do not suggest that for that reason the court should be any less cautious or circumspect in relation to its exercise of the jurisdiction to protect adults rather than children, but there is no obvious reason why it should be even more so. Mr. Scott-Manderson suggested in his final written schedule of balancing factors that the required caution is even greater in the case of an adult than of a child. When I asked why, he said because the use of the inherent jurisdiction based on nationality in the case of adults is very rare. It is; but just because it is very rare does not seem to me to require that even greater caution is required. “Great caution” or “extreme circumspection” means what it says, whether the person concerned is a child or an adult. To exhort even greater or more extreme caution or circumspection is, frankly, to succumb to hyperbole.

[51]I conclude, therefore, that there is an inherent jurisdiction to protect vulnerable adults who are habitually resident abroad, but are British citizens; and that on the facts alleged by Amina, which include constraint and ill-treatment, that jurisdiction is engaged by this case.

Discretion

[52]The question now is whether, in my judicial discretion, I should actually exercise jurisdiction and make an order and, if so, what order. I have, indeed, approached this case with very great caution and circumspection. I have had firmly in mind from first to last the risk of exorbitance. Caution and circumspection obviously do not depend on the length of hearing alone, but I did hear this case over four long days, during which I heard sustained argument from very experienced leading counsel. I have had very considerable “thinking time”, both during the hearing and since, while preparing this judgment. I have in fact moved during the course of the hearing from a starting position in which I openly expressed extreme doubt and reservation whether I should actually exercise a discretion to make an order, to the position (which, anticipating the outcome, I now disclose) that I should do so. In my view, the admitted or core facts of this case all point to Amina being under a constraint from her father which, having regard to her age, is severe. Her father admits to locking her in the flat for several hours when he goes out. He admits that until recently the barred door in the photograph at p.C85 was in position, restricting her access to parts of the flat, including the kitchen. He admits that the yellow grille at p.C84 is still in place, and although he says that its purpose is only to prevent her from shouting out of the window, that in itself is a constraint upon her means of communication with the outside world. As I explained at para.33 above, I am sceptical that that grille is not in fact restricting her movement within the flat as well.

[53]I agree with Mr. Setright that the terms of the document of the Saudi Arabian court dated 12 April 2016 at bundle p.D12 themselves indicate a person under severe constraint. Although now aged 21, she undertakes not to challenge her father’s authority over all her affairs and not to leave the house without his permission. The father’s own evidence in para.15 of his statement dated 16 June 2016 is that if she were to run away, the police, far from offering her protection from her father, would put her in prison. The very recent events in this case, and the father’s refusal to comply with para.15 and to allow Amina even to have unrestricted confidential and secure access to her consul and her own solicitor, vividly illustrate and underline the degree of continuing control and constraint being exercised. Overarchingly, she is under constraint if, at the age of 21, she wishes to leave Saudi Arabia, whether to travel to Britain or anywhere else, and is being prevented by her father from doing so.

[54]In all these ways, Amina is disabled from functioning as an independent adult, not merely just out of childhood at the age of 18, but already aged 21. Amina is a citizen of Saudi Arabia. These constraints may be acceptable and even the norm under the law and culture of Saudi Arabia. But she is also a British citizen, and under the law and culture of Britain they are not. They are, indeed, totally unacceptable, and do represent in the words of Munby J in Re SA “… some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do”. If Amina chooses voluntarily to remain in Saudi Arabia, of which she is a citizen, she must, of course, respect and adhere to the law and culture of that society. But the current constraint is denying to her the right to choose to be British and to live in Britain and to respect, adhere to and be regulated by the law and culture of British society. It is true that she is currently present and habitually resident in Saudi Arabia, but that results from her obedience to the will of her father in 2012. It is accepted that she did not travel there voluntarily and of her own free will.

[55]In my view, the current circumstances are such that this British person does require protection, in the language of Lady Hale and Lord Toulson in Re B at para.60; and she is currently in a peril from which she requires to be “rescued”, in the language of Lord Sumption in that case at para.87. Nevertheless, I must exercise great caution and not be exorbitant. There are other factors which weigh in favour of exercising jurisdiction. They include that not only is she British, but she was born and brought up and educated in Britain until the age of almost 17. This is a very significant factor. I would take a very different view of this case if Amina had been born and lived her whole life in Saudi Arabia but happened to be British by descent. Her mother and several of her siblings currently still live in Britain and, although she may be estranged from them, their presence here still indicates the continuing connections between this family and Britain.

[56]However, there are also powerful factors which militate against exercising jurisdiction. Her father is Saudi and Saudi alone. She herself has dual nationality. The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws done at the Hague on 12 April 1930 provides at Article 4 that “a State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses”. Britain is a signatory to that Convention, although Saudi Arabia is not. The view of the British Government, expressed in para.3.2 of its Home Office Nationality Instructions, is that:

“Commonly known as the ‘Master Nationality Rule’, the practical effect of this Article [viz Article 4] is that where a person is a national of, for example, two States (A and B), and is in the territory of State A, then State B has no right to claim that person as its national or to intervene on that person’s behalf …”

This may in part explain the position taken by the Foreign and Commonwealth Office in their letter of 14 December 2015 that “Amina is a dual national … there is little that we can do to assist her”. But I am being asked to make an order against the father personally. I am not being asked to “afford diplomatic protection” or in any way to act “against” the State of Saudi Arabia in the language of Article 4, and there is no question of my doing so. In any event, in Re A the child concerned had dual British and Pakistani nationality and that was not suggested by the judgment of Baroness Hale to represent an obstacle to the exercise of jurisdiction, save to the extent that dual nationality was one of the considerations which had been raised by Mr. Setright and referred to in para.64.

[57]The fact that Amina is present and habitually resident in Saudi Arabia undoubtedly militates against the exercise of jurisdiction, but is tempered in this case by the circumstances in which she came to be there: her father’s insistence and command, from which she has since been unable to escape. In Re B at para.59 Lady Hale and Lord Toulson identified “three main reasons” for caution when deciding whether to exercise jurisdiction. First, that to do so may conflict with the jurisdictional scheme applicable between the countries in question. There is no jurisdictional scheme between Britain, or Wales and England and Saudi Arabia. Second, that it may result in conflicting decisions in the two countries. In view of the proceedings in Saudi Arabia in April 2016, this is, of course, a weighty consideration in the present case. As I understand it, however, the “decision” in the Saudi court in April was not so much a decision imposed by the court in the exercise of its own judgment; rather, it was that court expressing its approval of that which the parties themselves had agreed. Whilst Mr. Scott-Manderson argues that Amina’s more appropriate remedy is to make some application of her own to that court, her ability freely to gain access to that court may itself be limited by the constraints, and she certainly has no means with which to fund a lawyer. Further, I regret that I lack confidence that that court would permit and enforce against the father that she is able to return to Britain, since Saudi Arabia does not recognise dual nationality. The court might not, therefore, recognise what might be the fundamental basis of her application, namely her British nationality.

[58]The third reason identified by Lady Hale and Lord Toulson is that it may result in unenforceable orders. In relation to that reason, they said on the facts of that case that “it is possible that there are steps which an English court could take to persuade the respondent to obey the order”, although, so far as I am aware, those steps were not further identified. Enforcement is undoubtedly a significant issue in the present case. Generally, courts do not make orders which they cannot effectively enforce, although almost daily judges of the Family Division do just that in relation to children who have been abducted to countries which are not parties to the Hague Convention on the civil aspects of international child abduction. I accept that there is little or nothing that this court could do to enforce against the father in Saudi Arabia any order which it may make if he was determined not to obey or comply with it. There are no conventions in operation between Wales and England, or Britain and Saudi Arabia. There is no reciprocity. The courts of Saudi Arabia would not even recognise the basis upon which I claim and assert jurisdiction, namely the British nationality of Amina, since the State of Saudi Arabia does not recognise dual nationality and, therefore, her British nationality.

[59]The father has no assets here of which I am aware, unlike in the case of Re B (see para.21 of the judgment of Parker J at

[2013] EWHC 3298 (Fam)

at the remitted hearing), but that does not preclude the persuasive force of an order, particularly one made after a very full and thorough hearing in which, although not personally present, the father engaged and fully participated and was fully heard throughout. The situation that will pertain after this judgment is very different from the situation that pertained under the earlier orders, many of which were expressed to be “without prejudice to the issue of jurisdiction”. By this judgment the issue of jurisdiction has been resolved. Further, the father himself voluntarily chose to live for many years in Wales; to educate and to bring his children up here; and to subject himself to both the protection of, and the constraints of, the laws of Wales and England and the legal system of Wales and England. His wife, from whom he is not estranged, and several of his children continue to live here. He may later, if not sooner, wish or have reason to visit Wales or England again, but he could not safely do so if he remained in breach of a significant order of this court, for he would be liable to be punished (if still in breach) for his continuing contempt of court.

[60]For all these reasons, I consider that, although the father may ultimately decide to defy any order I make, this court does have considerable moral and also practical “hold” over him. There is no reason why I should assume or suppose that he will not obey any proportionate order which I may make; and I consider that I should proceed on the assumption that he will obey it.

[61]There is one further factor to which I should refer. In Re A at para.65(vi) Baroness Hale referred to the absence of any enquiry being made about how the children in that case were. In Re B at para.86 Lord Sumption referred, rather similarly, to an independent assessment of the situation of the child abroad and said “unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country”. This led Mr. Scott-Manderson to submit that, before making any stronger order, this court should first direct or request some similar assessment of Amina by some appropriate authority in Saudi Arabia. There is, however, the significant difference that Re B concerned a child aged seven by the time of the hearing in the Supreme Court who could not speak for herself. The present case concerns an adult aged 21 who (subject to the constraints) can and does.

[62]Balancing all these considerations, I have come slowly and cautiously, but ultimately very firmly, to the conclusion that I should exercise the jurisdiction and should make such orders as I can to protect Amina. If citizenship means anything at all, it does include the right to seek help and protection and, weighing all those factors, I should not deny help and protection to Amina. To do nothing at all would, in my view, amount to a dereliction towards Amina and in effect just giving up on her.

What order?

[63]The next and final question is what order I should actually make. There was much discussion during the hearing about my simply repeating an order in the terms of para.15, hoping that now that a full hearing has occurred the father would permit a private meeting to take place at the consulate. He has, however, persisted in his position that he will not do so unless the Foreign and Commonwealth Office give a prior written assurance that if Amina were to seek diplomatic protection or “sanctuary” in the consulate, the consulate would not give it to her, but would hand her over to the Saudi authorities of the Ministry of the Interior. I see little point or purpose in repeating a para.15 order. Its main purpose when made on 4 July was to enable instructions to be taken from Amina so that a detailed up to date statement could be prepared for her, and an effective fact finding hearing could take place. That having been thwarted by the father, I am not now willing to set up another projected fact finding hearing in inevitably several months’ time. There has been far too much delay already in proceedings which ultimately concern liberty and which were commenced now almost eight months ago last December.

[64]There has also, incidentally, been far too much expense. I was told by Mr. Setright that the costs and disbursements of Amina, all funded by English legal aid, are already of the order of £50,000. The litigation has not yet cost the father personally anything, since his costs and disbursements are apparently all being funded by or through the Saudi Arabian Embassy, although he may be required later to repay them.

[65]In my view, I should, rather, move directly now to an order against the father personally that he must permit and facilitate the return of Amina, if she so wishes, to Wales or England and pay the air fare. He must at once make freely available to her both her British and her Saudi Arabian passports. She needs the former to enable her freely to enter Britain. She needs the latter to enable her freely to re-enter Saudi Arabia if later she wishes to return there for any purpose. I will specify the date by which Amina must be enabled to return as Sunday 11 September 2016. That allows about five and a half weeks for the father to reflect on this judgment and to make orderly arrangements. I myself will be sitting again here at the Royal Courts of Justice from Monday 12 September 2016, and very shortly after that date this case must be listed again before me. If Amina is, indeed, here, she must attend and I will decide what further orders, if any, should be made. If she is not here, I will similarly decide what further orders should be made or action taken.

[66]As I require Amina personally to attend, that hearing will, in the first instance, be listed in private so she is not initially burdened by the presence of the media. However, at or before the conclusion of the hearing I will in some way (by judgment or by a statement) inform the public and any interested representatives of the media the gist of what has occurred between now and then. I wish to make crystal clear that, apart from requiring her attendance before me at that hearing, if she has indeed voluntarily returned to Wales and England, I do not make any order whatsoever against Amina herself. The purpose is not to order her to do anything at all. Rather, it is to create conditions in which she, as an adult of full capacity, can exercise and implement her own independent free will and freedom of choice. To that end, I will give further consideration with counsel after this judgment to what mechanism can now be established to enable her freely to state, if that be her own free decision and choice, that she does not now wish to avail herself of the opportunity provided by my decision and this order to return to Wales or England.

[67]I conclude this judgment by expressing my sincere thanks to Mr. Setright QC and his junior counsel Mr. Michael Gration, and to Mr. Scott-Manderson QC for their sustained and distinguished written and oral arguments in this case; and to the solicitors on both sides who instruct them.