Case No. FD19P00246

1.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.2.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:Main Fact-Finding Judgment dated 11 December 2019 [2019] EWHC 3415 (Fam); The Foreign Act of State Judgment dated 29 October 2020 [2020] EWHC 2883 (Fam);The Non-Molestation Judgment dated 9 December 2020 [2021] EWHC 3305 (Fam);Assurances and Waiver Judgment dated 17 January 2020 [2020] EWHC 67 (Fam);The Legal Services Order (LSO) Judgment dated 13 January 2021 [2021] EWHC 303 (Fam); Publication Judgment dated 27 January 2020 [2020] EWHC 122 (Fam); The Court of Appeal Foreign Act of State Judgment dated 8 February 2021 [2021] EWCA Civ 129;The Court of Appeal Publication Judgment dated 28 February 2020 [2020] EWCA Civ 283; The Case Management Judgment dated 12 March 2021 [2021] EWHC 915 (Fam); The Immunities Judgment dated 19 March 2021 [2021] EWHC 660 (Fam); The Phone-Hacking Fact-Finding Judgment dated 5 May 2021 [2021] EWHC 1162 (Fam); The Court of Appeal Immunities (permission to appeal) Judgment dated 9 June 2021 [2021] EWCA Civ 890; The Lives With Judgment dated 10 June 2021 [2021] EWHC 1577 (Fam); The Court of Appeal Fact-Finding (permission to appeal) Judgment dated 15 June 2021 [2021] EWCA Civ 900; and The Court of Appeal Fact-Finding Judgment dated 5 August 2021 [2021] EWCA Civ 1216.3.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.4.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.5.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.6.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.7.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. 8.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.9.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.10.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.11.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.12.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.13.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.14.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.15.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:a)The issue of publicity is central to the children’s future safety and their ability to put these proceedings behind them and move forward;b)Publication of the judgment will act as a deterrent to those who may, either deliberately or unwittingly, cause harm to the children by acting on a false account of the judgment;c)To withhold publication would place the children at risk of harm from false accounts, which would otherwise be prevented or corrected by the full judgment being publicly available to act as a ‘touch-stone’ of truth;d)Without publication, His Highness would be likely to fill any vacuum with a misleading narrative to suit his own agenda; publication provides a shield to protect the mother and children from harmful misinformation;e)Unless it is clearly understood that His Highness is not being afforded any direct contact, and has a restricted role in the exercise of parental responsibility for the children, there is a real danger that third parties may put the children at risk by sharing information with him about their activities, education, health or other matters.16.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.17.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.18.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.19.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.20.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).21.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.22.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.23.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.24.[redacted].25.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. 26.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.