Al-Jeffery v Al-Jeffery (Vulnerable adult; British citizen)

The High Court has an inherent jurisdiction to protect a vulnerable adult with capacity who is habitually resident abroad but is a British citizen. The jurisdiction may be engaged by reasonable grounds for believing that the adult is under constraint, coercion or undue influence; an ultimate finding of fact is not required before jurisdiction is considered.

Its exercise requires great caution and circumspection. The central question is whether the British citizen requires protection from a real peril. The jurisdiction is not confined to cases at the extreme end of the spectrum. Where proportionate, the court may order a person abroad to facilitate the citizen’s return to the United Kingdom.

The applicant, a 21-year-old dual British and Saudi Arabian citizen, had lived in Saudi Arabia since travelling there unwillingly at the insistence of her father while aged 16. She alleged that her father confined and ill-treated her and prevented her from returning to England or Wales.

She sought a statutory forced marriage protection order under Part 4A of the Family Law Act 1996 and protective orders under the inherent jurisdiction. The factual hearing could not proceed because the father failed to facilitate confidential access between the applicant and her solicitors. The issues were whether the court had jurisdiction based on British nationality, whether it should exercise that jurisdiction, and what order was appropriate.

1. Forced marriage application. A forced marriage protection order should not be made without credible evidence that forced marriage had occurred or was threatened. A person marrying, or seeking to marry, to escape parental domination is not thereby forced into marriage. The statutory proceedings were dismissed and continuing orders discharged. The court did not decide the territorial reach of Part 4A of the Family Law Act 1996.
2. Subject-matter jurisdiction. The inherent jurisdiction protects vulnerable adults with capacity who are under constraint, coercion or undue influence. Constraint includes confinement, control or restraint which significantly curtails freedoms ordinarily enjoyed by free adults. Reasonable grounds for believing that the adult is deprived of freedom trigger consideration of the jurisdiction; the ultimate factual finding is not a precondition. The father’s non-compliance with the order for confidential access could not deprive the court of jurisdiction.
3. Nationality-based jurisdiction. The reasoning in Re A (Jurisdiction: return of child) [2013] UKSC 60 and Re B (A child)(Habitual residence: inherent jurisdiction) [2016] UKSC 4 required great caution and circumspection, having regard to comity, conflicting decisions and enforceability. But the jurisdiction was not limited to cases at the extreme end of the spectrum. The same approach applied to vulnerable adults because that jurisdiction was materially indistinguishable from the protective jurisdiction concerning children.
4. Exercise of discretion. The applicant’s British nationality, upbringing and education in Britain, severe admitted restrictions on her freedom, and inability to leave Saudi Arabia showed that she required protection from a peril. The competing factors included dual nationality, habitual residence in Saudi Arabia, the Saudi proceedings, comity and the limited enforceability of an English order. Those factors did not outweigh the need for proportionate protection.
5. Order. The father was ordered personally to permit and facilitate the applicant’s return to Wales or England by 11 September 2016, to pay the air fare, and to make both her British and Saudi passports available. No substantive order was made against the applicant; the purpose was to enable her to exercise her own free choice.