In March 2020, we wrote about the extraordinary family court proceedings involving the two children of Sheikh Mohammed bin Rashid Al Maktoum of Dubai and his sixth wife, Princess Haya bint Al Hussein.
One of the most interesting aspects was that the Sheikh did not instruct his legal team to take issue with any of the allegations about the danger in which he had placed various members of his family, because he did not recognise the English court had any jurisdiction over him. The only point at which he engaged was to try to stop the court publicising its judgments on BAILII. Overall, the way the court and the media worked together here was a big win for transparency.
This week the Sheikh has been in the news again. He had lodged an appeal against a case management order made by Sir Andrew McFarlane, the President of the Family Division on 12 March 2021, about disclosure of confidential data to an expert witness. At that hearing, the President had also made findings of fact that the mobile phones of the princess, two of her solicitors, her personal assistant and two members of her security staff had been the subject of either successful or attempted infiltration by surveillance software. The software is called Pegasus software used by an Israeli company, the NSO Group. This surveillance was carried out by servants or agents of the Sheikh, the Emirate of Dubai or the UAE and had occurred with his express or implied authority, said the President.
In other words, phone hacking, but also newsworthy for the fact that it had come to light because NSO had notified Cherie Blair, who happened to be one of their advisers.
Credit to Sam Greenhill at the Daily Mail, for what appears to be comprehensive, neutral coverage of the story here with helpful explainers on the context of phone hacking.
The new judgment on BAILII includes links to 12 previous judgments and orders in the case. It is therefore pretty complicated. This extract [paras 137-139] gives a flavour:
The allegations of hacking came before the court at a time when it had already made very serious findings against the father. Lord Pannick described them as findings of ‘bad behaviour’. In my judgment that is a gross understatement of the gravity of those findings. The unappealed findings are that on two occasions the father has abducted children across international borders. In the midst of proceedings concerned with assessing the risk of abduction by or through the father of his children, the President now had to determine whether the father had facilitated the hacking of the mobile phones of the mother and her advisors with the result that it would be highly likely that he now had access to sensitive and confidential information, including in relation to the mother’s security arrangements.
Notwithstanding the extreme sensitivity of the sysdiagnose data and the second fingerprint, the President was prepared to allow the father access to all the data had the father followed the standard approach to the testing of expert evidence in children proceedings, namely the making of a Part 25 application with the openness embedded in such an application. What the President was not prepared to do was to allow the father to conduct a parallel analysis using an expert out of the jurisdiction over whom the President would have no control and no sanction.
In my judgment the father had an effective opportunity to test the evidence. If he chose not to take it to the full extent because he was not prepared to comply with the procedural processes of the jurisdiction to which he had chosen to subject himself through this application, that was a matter for him.
At para 143, the Court of Appeal conclude:
the findings of the President remain in place, namely that the phones of the mother, her legal adviser and various associates were hacked through the use of Pegasus software and that this surveillance was carried out by the servants or agents of the father and with his express or implied authority.
It seems that the UK is (or was) a country in which Princess Haya felt she and her children could live in relative safety and it’s therefore appropriate for her to take legal action here to protect them. Pity the poor judges though, and the falling-over family court system, having to contend with all this as well.
Image of Burj Al Arab tower, Dubai – thanks Sam Valadi at flickr
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