Family Law

In Al-Jeffery v Al-Jeffery (Vulnerable Adult: British Citizen) [2016] EWHC 2151 (Fam), Holman J  has confirmed for the first time that the High Court can exercise an inherent protective jurisdiction over a vulnerable British adult on the basis of their nationality, even if they are not habitually resident in England and Wales.

The case, which was the subject of considerable media attention while it was going on, concerned a 21-year-old dual British-Saudi woman who was born and lived in Wales until just before she turned 17, at which point she travelled (in 2012) to Saudi Arabia at the insistence of her Saudi father. She had remained there thereafter and alleged in proceedings brought under the inherent jurisdiction that she was being seriously ill-treated by him, including by being kept in caged conditions in his flat and that she was prevented from leaving Saudi Arabia and returning to Wales or England. She also sought a forced marriage protection order, although this application was ultimately abandoned during the course of a hearing listed before Holman J to consider what, if any, jurisdiction he had to make orders in relation to Ms Al-Jeffery (in respect of whom it is important to note that there was no suggestion that she was of anything other than unimpaired mental capacity). The father's refusal to comply with earlier orders (made without formal determination of jurisdiction) to return his daughter to England and Wales or to allow her to speak privately to her instructing solicitor without fetter or fear of fetter had meant that it was not possible to proceed with a fact-finding hearing, such that Holman J proceeded in his consideration of whether he had jurisdiction on the basis of prima facie, rather than judicially determined facts.

It was agreed before the court by counsel for both father and daughter that the inherent jurisdiction existed and would apply if the facts alleged by the daughter were true and she were physically present in England and Wales. Holman J, relying (in particular) on DL v A Local Authority [2012] EWCA Civ 253, endorsed this proposition, noting that he had no doubt at all 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 (para [42]). Importantly,  Holman J also noted (relying on Re SA [2005] EWHC 2942 (Fam)) that the triggers for this jurisdiction being engaged was that there was a reasonable belief that the person was for some reason in need of the protection of the court, such that it would be 'intolerable' (para [41]) were a failure by one party - here, the father - to enable a fact-finding hearing to proceed so as to enable the court to proceed on the basis of established, rather than prima facie facts.

The complicating factor in the instant case was that Ms Al-Jeffery had not resided or been present anywhere in the UK since 2012, and her counsel conceded that she could no longer be considered habitually resident in England and Wales (although he did not concede that she was now to be considered habitually resident in Saudi Arabia). Holman J expressed the view that she was, in fact, habitually resident there and had been since April 2013, but that in any event he would proceed on that assumption.

The only basis for exercising jurisdiction, Holman J held, was therefore that she had British citizenship or nationality. He noted that '[i]n the recent case 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 sufficient basis for exercising the inherent or parens patriae in relation to children' (para [44]); that 'the jurisdiction based on nationality alone should only be exercised with extreme circumspection or great caution and where the circumstances clearly warrant it' (para [46]); 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"' (para [48]); and concluding that:

'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 pearl from which the courts should 'rescue' the child" ...'