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Al-Jeffery v Al-Jeffery (Vulnerable adult; British citizen) [2016] EWHC 2309 (Fam)

Following Holman J’s earlier order, this judgment addresses the issue of how the applicant’s legal team could obtain clear instructions as to her wishes in relation to whether she wanted to remain in Saudi Arabia or return to the UK.

Following Holman J's earlier judgment in this case (Al-Jeffery v Al-Jeffery (Vulnerable adult; British citizen) [2016] EWHC 2151 (Fam) which should be read in conjunction with this judgment, the court made an order requiring the respondent (the father of the applicant, Amina) to facilitate and permit Amina's return to England and Wales by not later than 11 September 2016. It was made clear that there was no order or obligation upon Amina herself.

Following that order, Amina did not at any point return to England and Wales. There was communication by text, telephone and email between Amina and her solicitor, Anne-Marie Hutchinson OBE.

This included a forty-minute telephone conversation between Amina and Ms Hutchinson at the Hilton Hotel in Jeddah in the presence of two officials of the British Consulate. Ms Hutchinson did not disclose to the court or to the father the details of that conversation given her concern that "on the basis of the information that I had received, I was unable to advance Amina's instructions in a way that would have fulfilled my professional duty to the court and to Amina", at [5]. It was, however, revealed by Ms Hutchinson that Amina's position was "equivocal", with that assessment requiring, in the words of Holman J, "the utmost regard and respect by me at this stage of these proceedings", at [6].

Similarly, the British Consul General in Jeddah had sent two accounts by email of events on the day that Amina attended. Those accounts too were not seen by the court, with the applicant asserting that there were references to consular confidentiality or privilege within them.

Notably, on 12 September 2016, Ms Hutchinson received an email from a known email address of Amina. To that email was attached a document described as "Amina's Statement 1." On the face of that document, Amina's position was clear and unequivocal: she wanted to stay in Saudi Arabia and re-build her relationship with her father. Nevertheless, Amina's legal team, taking into account not only that statement but also the material not seen by the court, "with all the judgment and integrity that I naturally attribute to them", at [13], said that Amina's overall position remained equivocal.

Order
Holman J determined that the only reliable way to enable Amina to make an informed decision free from pressure or influence would be for Ms Hutchinson to have a direct, face-to-face meeting with Amina, with no one else present. Given the present assumption that this would not happen in England, Ms Hutchinson would have, if she so wished, to travel to Saudi Arabia to meet Amina there. In the first instance, Holman J invited the LAA to consider funding this – the transport and accommodation costs being both necessary and, in the context of the proceedings to date, very proportionate.

The respondent was ordered to permit and facilitate Amina's travel to Riyadh. Given the respondent's "very determined objection and opposition", at [17], to Amina attending any embassy or consulate premises and the possibility that, were it ordered to take place at such premises, the respondent's objection might prevent the meeting, Holman J ordered that they shall meet at any place nominated by Ms Hutchinson, other than an embassy or consulate.

Summary by Alex Laing, barrister, Coram Chambers

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[2016] EWHC 2309 (Fam)

IN THE HIGH COURT OF JUSTICE No. FD15F05038
FAMILY DIVISION 

Royal Courts of Justice
Tuesday, 13th September 2016


Before:

MR JUSTICE HOLMAN

(Sitting throughout in public)

B E T W E E N :

AMINA AL-JEFFERY
 Applicant
-  and  -
MOHAMMED AL-JEFFERY Respondent
(Vulnerable adult; British citizen)
(Judgment No: 2)
 __________

Transcribed by BEVERLEY F. NUNNERY & CO.
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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.
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J U D G M E N T
(As approved by the judge)

MR JUSTICE HOLMAN:
1. After a hearing lasting several days, I gave a full and detailed judgment in this case on 3 August 2016.  An official version of that judgment, approved by myself, has since been prepared, and was made publicly available on the Bailii website later in August under neutral citation number [2016] EWHC 2151 (Fam).  I will not repeat anything at all that I said in that judgment.  This brief judgment today may be viewed as a continuation of that judgment.

2. By the order of 3 August 2016, I required Amina's father, in summary, to facilitate and permit that Amina return to England and Wales not later than last Sunday afternoon, 11 September 2016.  By paragraph 66 of that judgment, I made crystal clear that there was no order or obligation upon Amina herself to travel to Wales and England.  I said:

"I wish to make crystal clear that... 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."

3. Following the judgment, there was further consideration as to a mechanism whereby Amina might freely express her wishes and instructions to her solicitor, Ms. Anne-Marie Hutchinson OBE.  I further fixed this hearing for today, 13 September 2016. 

4. Amina has not returned at any stage to Wales and England and, so far as I am aware, remains at this moment present in Saudi Arabia.  There has, however, been communication by both text, email and telephone between Amina and Ms. Hutchinson.  Most specifically, on 25 August 2016 Amina attended at the Hilton Hotel in Jeddah in the presence of two officials of the British Consulate in Jeddah.  There was a telephone conversation of about forty minutes' duration between Amina and Ms. Hutchinson.  I do not know reliably how long altogether Amina was present at the Hilton Hotel in the presence of the consular officials, although in a document which has been produced today and purports to be a witness statement by the father, although I have not yet seen it in a signed form, he himself refers to a meeting "of about three hours" at the Hilton Hotel in Jeddah.  If that is right, then Amina must have spent an appreciable period of time in the company of the two consular officials, though not on the telephone to Ms. Hutchinson here in London.

5. Ms. Hutchinson has not disclosed to the court or to the father the content of that telephone conversation.  The reason is explained in paragraphs 4 and 5 of the witness statement of Ms. Hutchinson dated 9 September 2016 in which she says:

"(4)  Based on the various communications that I have described above, I am not in a position to comply with paragraph 8 of the order dated 3 August 2016.  As the court is aware, I have previously filed a statement... within which I recorded my concern that, on the basis of the information that I had received, I was unable to advance Amina's instructions in a way that would have fulfilled my professional duty to the court and to Amina.  Unfortunately, it is my view that I am in a similar position in relation to the information that I now have, including that which I have received during the communications outlined above.

(5)  Further, I am concerned that Amina is hampered in formulating a fully informed decision about returning to England and Wales in accordance with the contents of paragraph 4 of the order of 3 August 2016.  The element of 'choice' exposes her to pressure, which may be a contributing factor to the equivocal position that has been relayed to me about whether or not she wishes to return to this country.  Whilst she is in Saudi Arabia, I cannot be sure that she is able to convey her true wishes and exercise self-determination."

6. Pausing there, I emphasise from that quotation the assessment of Ms. Hutchinson that Amina has relayed or expressed to Ms. Hutchinson an "equivocal position" as to her wishes.  I wish formally to record in this judgment that Ms. Hutchinson is a solicitor of very great, if not unrivalled, experience in the field of representing people who are, or may be, in some way constrained against their will abroad.  Her assessment as expressed in those paragraphs requires the utmost regard and respect by me at this stage of these proceedings.

7. I have been told today that the British Consul General in Jeddah, Mr Barrie Peach MBE, who was one of the consular officials present on 25 August 2016, has sent by email two notes or accounts of the events of that day.  One was sent directly to Ms. Hutchinson.  The other was sent to the Foreign and Commonwealth Office here in London, who in turn forwarded it to Ms. Hutchinson, although I understand that the version which the Foreign and Commonwealth Office forwarded to Ms. Hutchinson may have been the subject of some editing or redaction here in London before it was forwarded.  I have not seen either of those notes or accounts.  I have been told by Mr Henry Setright QC, who appears again on behalf of Amina, that within the notes or accounts there are references to what is described as consular confidentiality or privilege.  It has not been possible at this hearing today fully to investigate the nature of that confidentiality or privilege, but, as I understand it, the gist is that the consular officials gave to Amina some assurance that what she said to them, or in their presence, would be kept confidential.  Mr Setright accordingly submits that there would be a breach of that confidentiality if the contents of these documents were now disclosed either to the court or to the representatives of the father.  Accordingly, I simply do not know what they may say with regard either to the demeanour of Amina that day or as to anything that she may have said.

8. Mr Setright does, however, make one point arising out of the asserted consular confidentiality.  In paragraph 3 of the unsigned witness statement of the father which was produced at this hearing this morning, he states that, during the course of the meeting in the hotel in Jeddah, he himself waited on the floor above throughout the meeting.  He then says:

"I was told by both [the consular officials] that Amina wanted to stay in Saudi Arabia."

9. Mr Setright makes the point that if the consular officials claim some consular confidentiality or privilege in relation to the content of the meeting, it would indeed be surprising if, immediately after the meeting, they had then reported to the father anything that Amina had said.  That, however, is comment by Mr Setright, and I simply have no idea what may or may not have passed between the consular officials and Amina, or between the consular officials and her father.

10. There is one further significant recent development.  Yesterday, 12 September 2016, Ms. Hutchinson and other colleagues in her firm received an email which comes from what is known to be the email address of Amina.  It does not, of course, follow that Amina herself sent the email.  It merely attaches a document described as "Amina's Statement 1."  That document has been seen by the father and has been produced to me, and I propose to quote extensively from it:

"10.9.2016  I, Amina Jeffery... write this statement for it to be submitted to the court.

As my lawyer, Anne-Marie Hutchinson, and I had discussed during our telephone call 25th August 2016, that was attended by consular staff who were present during the conversation.  The content of which was discussed went as follows:

1 My father and I have began building our trust and has promised to support me in seeking work and pursuing studies, wherever he can.  He has also provided me with other liberties; full access to internet and a telephone.  Since the day of the meeting I have been going to a number of interviews and began self-teaching my studies (as best as I can) employing my resources.  I am really happy with the result of things with my father - all I hoped for has been realised by him...

2  Owed to what was said above, I of my own accord wish to stay in Saudi to work on my relationship with my father and get my life back on track here first.

3  I want to withdraw my charges and end this case finally, there is nothing further to pursue.  In fact, its being prolonged is impeding me from focusing on my work and studies, and obstructing the progress of my father and I's relationship.

I absolutely did not feel under pressure at the meeting with the consular staff, and spoke very freely to them about what was relevant to the case and what was not.  The consular staff have recorded what was discussed in the meeting, and said that they would submit it.

Lastly, if what I have written is perceived as skeptical, (sic) I would like to arrange a meeting to speak to the judge directly that I may validate what is written and answer any questions he may have directly."

11. Pausing there, it was Amina's reference to the consular staff saying that they would submit their record of what was discussed at the meeting that led me, at the outset of the hearing this morning, to enquire whether any material had been received from the consular officials, with the result that I have already described. 

12. In the very last paragraph of her document, Amina says that she would like to arrange a meeting to speak to the judge directly.  The whole purpose of the order made on 3 August was to promote that Amina did travel to Wales and England so as to be able to attend this hearing here today, precisely so that I could speak directly to her.  I made very clear that if she was personally in attendance, I would sit initially in private.  I would have been very willing to meet her in even greater privacy in a private room with only a very small number of people, such as the two leading counsel, present.  What I am not at the moment prepared to do is speak to Amina by telephone in Saudi Arabia, nor even by video-link, because I would have no confidence as to the position that she was in and whether there might be constraints upon her at the time.

13. On the face of it, the language of that statement sent from Amina's email address yesterday is clear and unequivocal.   But Ms. Hutchinson and Mr Setright take into account the contents of that statement but also the content of the telephone call on 25 August 2016 and also the content of the notes or accounts made by Mr Peach of the meeting on 25 August 2016.  They say, with all the judgment and integrity that I naturally attribute to them, that notwithstanding the apparently clear content of that statement dated 10.9.2016, the overall position remains that Amina's position appears to them to be "equivocal".

14. It seems to me in this situation that there is only one efficient, effective and reliable way for all of us, and ultimately myself, the court, to get to the truth of this matter, and to enable Amina to make an informed decision free from pressure or influence, and that is if Ms. Hutchinson is enabled to have a direct, face-to-face meeting with Amina with no one else present in the room.  It is, of course, still perfectly possible for such a meeting to take place here in Wales and England if Amina were to travel here for the purpose.  Nothing that I have said or done or ordered in this case imposes the least restriction against Amina travelling to Wales and England and, so far as I am concerned, she is completely free to travel here tomorrow or at any other time, and completely free to visit Ms. Hutchinson at her offices or any convenient place.   But the present assumption has to be that that will not at the moment happen.  Accordingly, it seems to me that the only way forward now is for Ms. Hutchinson to travel herself to Saudi Arabia to meet Amina there.

15. In court today, Ms. Hutchinson has expressed through Mr Setright her personal willingness or preparedness to travel to Saudi Arabia.  I stress, of course, that I do not in any way whatsoever require Ms. Hutchinson to travel to Saudi Arabia, and she must only go in the exercise of her own free will; but she has said that she will go.  That, of course, will require funding.  In the first instance, I look to the Legal Aid Agency to provide the funding, although they must make their own decision and judgment about that.  I emphasise, however, that these have already been very expensive proceedings.  At paragraph 64 of my judgment dated 3 August, 2016 I recorded that even at that stage the costs and disbursements of Amina were already of the order of £50,000.  By the conclusion of this hearing today, there will obviously be a significant additional amount.  In proportion to those costs, and in order to try to reach a reliable, fair and just resolution of these proceedings for the benefit of Amina, it seems to me that the relatively much smaller costs of one person travelling to and from Riyadh and some associated hotel and incidental travel expenses are both necessary and very proportionate.

16. In the terms of a detailed order which I have already publicly read out, I will make provision and directions for Ms. Hutchinson to travel to Riyadh and I will order the father to permit and facilitate, including by paying Amina's fares, that Amina travels to Riyadh for the purpose.  I am told that there is a regular, daily, effectively shuttle, air service between Jeddah and Riyadh, and it is not onerous to expect a young adult aged twenty-one to make that journey.  I will, accordingly, require Amina personally to travel to Riyadh in order to attend the meeting.  That does not require her to leave Saudi Arabia.  It is not placing any onerous burden upon her at the age of twenty-one.  I have been told that it is contrary to the law, or at any rate the culture, in Saudi Arabia for women of the age of twenty-one to travel unaccompanied, and if that is the case, my order will make clear that she may be accompanied by a suitable person on the journey.

17. Mr Setright asked that the meeting should take place within the British Embassy in Riyadh.  In part, that request was based upon concern for the well-being of Ms. Hutchinson; but in part also on a concern to ensure that there was no possibility of the meeting being surreptitiously recorded or in some other way interfered with.  As previously in these proceedings, the father, through Mr Scott-Manderson, expressed very determined objection and opposition to Amina having to attend any premises which are an embassy or consulate.  As Mr Setright pointed out, if Amina in truth does freely wish to remain in Saudi Arabia, it is difficult to see why the father should have so much concern about her temporarily entering the premises of her own embassy or consulate in order to express that wish.   But however that may be, the father appears to have so deep-rooted an opposition to Amina setting foot on British Embassy or consular premises that if I were to insist upon that, it might have the effect of preventing the meeting from taking place.  For that reason, I will order that the meeting shall take place at such place other than an embassy or consulate that Ms. Hutchinson, having made her arrangements, shall nominate.   But the order will make plain by a note at the end of it that the reason why an embassy or consulate is excluded from being the venue for the meeting is the strong objection of the father, expressed on instructions by his leading counsel, to Amina entering any embassy or consular premises.

18. In summary, the position today appears to be as follows.  On the one hand, in a document purporting to be sent from her own email address dated 10.9.2016 Amina expresses, apparently unequivocally, that she wishes to stay in Saudi Arabia.  On the other hand, there has been a range of other communications by email, text and telephone between Amina and her very experienced solicitor.  Additionally, the solicitor has received the two notes or accounts from Mr Peach which I have described.  All that material, read as a whole (which I have not been able to see), leads the solicitor to make the current assessment that the true position of Amina is "equivocal." 

19. As I have not seen this other material, I myself simply am in no position whatsoever to make any judgment or assessment today as to Amina's true wishes and feelings, and as to whether she expresses them without inappropriate influence, domination or constraint.  I simply do not know.   But it continues to seem to me that it would be wrong of this court simply to give up on Amina at this stage and bring these proceedings to an end.  By the order which I make today, I hope to achieve that by the time of the next hearing, which I fix for 28 October 2016, Ms Hutchinson has been able to obtain clear instructions and report to the court with clarity in this case; and able to ensure that Amina is able to make an informed decision free from pressure or influence.
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