This post considers the guidance given by the President of the Family Division in the recent decision of the Court of Appeal in Re K (Forced Marriage: Passport Order)  EWCA Civ 190 and touches briefly upon considerations of transparency and open justice in cases of forced marriage in the Family Court.
A “forced marriage” is a marriage in which one or both spouses do not consent to the marriage and are forced into it. This is different to an arranged marriage, in which the decision as to whether or not to marry is made by both spouses. Force may include physical, psychological, financial, sexual or emotional pressure or coercion.
Forced marriage is considered within the UK to be a serious form of domestic abuse and a violation of the victim’s human rights. It is not only a question of safeguarding children; the criminal and family courts will intervene to protect both adult and child victims. Perpetrators of forced marriage will often consider that their actions are justified by their perceived need to uphold their religious or cultural traditions or their so-called family “honour”.
In Re K, McFarlane P said at para.24:
The abusive nature of a forced marriage does not begin and end on the day of the marriage ceremony. Rather, the marriage forms the start of a potentially unending period in the victim’s life where much of her daily experience will occur without their consent and against their will, or will otherwise be abusive. In particular, the consummation of the marriage, rather than being the positive experience, will be, by definition, a rape. Life for an unwilling participant in a forced marriage is likely to be characterised by serial rape, deprivation of liberty and physical abuse experienced over an extended period. It may also lead to forced pregnancy and childbearing. The fate of some victims of forced marriage is even worse and may include murder, other “honour” crime or suicide.
The government has identified some key motives for forced marriage within its multi-agency statutory guidance “The Right to Choose”:
- Controlling unwanted sexuality (including perceived promiscuity, or being lesbian, gay, bisexual or transgender) – particularly the behaviour and sexuality of women
- Controlling unwanted behaviour, for example, alcohol and drug use, wearing make-up or behaving in, what is perceived to be, a “westernised manner”
- Preventing “unsuitable” relationships, e.g. outside the ethnic, cultural, religious or caste group
- Protecting “family honour” or “izzat”
- Responding to peer group or family pressure
- Attempting to strengthen family links
- Achieving financial gain
- Ensuring land, property and wealth remain within the family
- Protecting perceived cultural ideals
- Protecting perceived religious ideals which are misguided
- Ensuring care for a child or adult with special needs when parents or existing carers are unable to fulfil that role
- Assisting claims for UK residence and citizenship
- Long-standing family commitments.
Sadly, forced marriage appears to remain a widespread concern within the UK. The Forced Marriage Unit (FMU) is a joint Foreign and Commonwealth Office and Home Office unit which operates within the UK and overseas to provide advice and support to both professionals and potential victims of forced marriage. Alongside the work and training it undertakes, it publishes annual statistics about its cases. In 2018, the FMU gave advice or support in 1,764 cases. This was a 47% increase on 2017; prior to 2018 it had dealt with an average of 1,200-1,400 cases per year since 2012.
Of the potential victims, 33% were below the age of 18. While the majority of cases (75%) involved female victims, 17% of the victims were male (the gender of the victim was not known in the remaining cases). Since 2011, the FMU has dealt with cases relating to 110 different countries. In 2018 the cases concerned 74 countries; Pakistan was by far the most prevalent, involved in 44% of the cases. Bangladesh, India, Somalia, Afghanistan and Romania also featured significantly. In 2018, 119 cases (7%) had no overseas element at all; the potential or actual forced marriage took place entirely within the UK.
In Re K McFarlane P quoted Family Court statistics for 2018. In that year, 322 applications for forced marriage protection orders were made and 324 orders were granted. 72% of the persons protected were aged 17 years and under, perhaps reflecting that many of the cases are likely to arise as a result of local authority applications to protect vulnerable children.
The most recent Crown Prosecution Service Violence Against Women and Girls Report shows that in 2018-19 there were four offences of forced marriage charged. Four defendants were prosecuted and three were convicted. Eight prosecutions were brought against defendants for breach of an FMPO, of which three were convicted.
It is not clear why there is such a low number of criminal prosecutions compared with the involvement of the FMU and the number of applications to the Family Court. Perhaps the advice and support of the FMU and the orders available in the Family Court provide adequate protection for potential victims. Perhaps the nature of the circumstances surrounding forced marriage makes it a difficult offence to prosecute and prove to the criminal standard.
Part 4A of the Family Law Act 1996 (“the Act”) – introduced in 2007 – creates forced marriage protection orders (FMPOs). S.63A provides:
(1) The court may make an order for the purposes of protecting—
(a) a person from being forced into a marriage or from any attempt to be forced into a marriage; or
(b) a person who has been forced into a marriage.
(2) In deciding whether to exercise its powers under this section and, if so, in what manner, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected.
(3) In ascertaining that person’s well-being, the court must, in particular, have such regard to the person’s wishes and feelings (so far as they are reasonably ascertainable) as the court considers appropriate in the light of the person’s age and understanding.
(4) For the purposes of this Part a person (“A”) is forced into a marriage if another person (“B”) forces A to enter into a marriage (whether with B or another person) without A’s free and full consent.
(5) For the purposes of subsection (4) it does not matter whether the conduct of B which forces A to enter into a marriage is directed against A, B or another person.
(6) In this Part—
“force” includes coerce by threats or other psychological means (and related expressions are to be read accordingly); and
“forced marriage protection order” means an order under this section.
S.63B of the Act gives the court wide powers to make whatever orders it considers appropriate for the purpose of an FMPO, which can cover conduct either within or outside of England and Wales and which may apply to persons who are not respondents to the application. S.63CA makes a breach of an FMPO a criminal offence which is liable to a term of imprisonment of up to five years.
FMPO applications are governed by Part 11 of the Family Procedure Rules.
S.121 of the Anti-social Behaviour, Crime and Policing Act 2014 creates a separate criminal offence of forced marriage in England and Wales, punishable by up to seven years’ imprisonment. “Marriage” is not limited to legally binding ceremonies, but includes any religious or civil ceremony of marriage.
In 2015, the victim “K”, who was then 29 or 30 years old, contacted her local police on two occasions, telling them that her family were trying to force her to get married against her will and that they had threatened to murder her if she did not do it. The police already had similar information from concerned neighbours, so applied for an FMPO. This was granted at a without notice hearing in June 2015.
Various members of K’s family were made respondents to the application. They denied the allegations against them and disputed that an order should be made. By the time the case came to a contested final hearing in January 2016, K had withdrawn her allegations and she also said that she wanted the FMPO to be discharged.
HHJ Tucker found that K had been told she would marry the brother of a woman whom her eldest brother wished to marry. This man would only agree to that union if he were allowed to marry K, although this was against K’s wishes. The Judge found that K’s family members had threatened to burn her alive or to cut her up with a machete if she refused.
HHJ Tucker decided that the FMPO should remain in force. She also made an order that K’s passport and other travel documentation should be held by the West Midlands Police “until further order”. She made an order forbidding the respondents from applying for any new passport for K.
Immediately after the 2016 hearing, K fled her family home, alleging that her eldest brother had seriously assaulted her. She was removed to a refuge and subsequently rehoused by the local authority, living separately from her family ever since.
In December 2017, K’s mother passed away. The funeral took place in Pakistan. K applied on an urgent basis to discharge the FMPO and, in particular, the passport order. An urgent hearing was not possible (meaning K missed the funeral) but the proceedings came to a further final hearing in July 2018, with the admission of fresh expert evidence. Following that hearing, HHJ Tucker decided to keep the FMPO in force, but adjourned the final determination for a period of four months in the hope that K would seek professional advice and assistance to be able to better protect herself from any risks that may arise if she were to travel abroad.
At the adjourned final hearing in December 2018, K confirmed that she had not sought and did not intend to engage with any such professional support. The Judge therefore refused the application to vary or discharge the FMPO, which remained in force. She found that K would not be able to maintain control of her own passport if it were in her possession and that, if her family were to get hold of it, they may force her to travel to Pakistan to marry without her consent. HHJ Tucker found that there was a “real risk of honour-based violence” towards K.
K appealed the decision which was eventually heard at the Court of Appeal in November 2019.
There were three issues of general importance identified in the appeal:
- Whether the court had jurisdiction, and if so should that jurisdiction be exercised, where the individual said to be requiring protection is an adult who does not lack the mental capacity to make any relevant decision, and who opposes the FMPO;
- Whether the Family Court has jurisdiction, as part of an FMPO, to require the protected person’s passport to be removed and retained by the authorities and, if so, whether that jurisdiction extends to making an open-ended or indefinite “Passport Order”;
- What approach should a court take when determining issues such as this where there is apparent conflict between, on the one hand, a person’s right to be protected by the State from inhuman or degrading treatment or punishment sufficient to engage Article 3 of the European Convention on Human Rights (“ECHR”) and, on the other hand, that person’s autonomy and right to respect for private and family life, including the right to travel, under Article 8.
As a result of the matters of general importance raised, in addition to the West Midlands Police – who were respondents to the appeal – the Secretary of State for Justice and the Southall Black Sisters (a not-for-profit organisation which aims to highlight and challenge all forms of gender-related violence against women and to empower victims) were each granted permission to intervene. They made written and oral representations to the appeal hearing.
Sir Andrew McFarlane, President of the Family Division, delivered the lead judgment. He recognised that there was a large measure of agreement between all parties as to the nature and extent of the legislation regarding FMPOs, which was described as being “cast in the widest and most flexible terms”.
Parliament has not defined the “person” who may require protection by any reference to their gender, age or mental capacity. Therefore an FMPO can be made by either the High Court or the Family Court to protect anybody who requires it.
The court has the power to make an FMPO which may contain prohibitions, restrictions or requirements and “such other terms” as the court considers appropriate for the purpose of the order. It is therefore clear that the Judge has a wide power to either prevent persons from taking any action, or to compel them to take any action, as may be needed to ensure compliance with the order.
The court must “have regard to all the circumstances, including the need to secure the health, safety and wellbeing of the person to be protected”. As part of considering the person’s wellbeing, the court must also “have regard to the person’s wishes and feelings (so far as they are reasonably ascertainable) as the court considers appropriate in the light of the person’s age and understanding”. The person’s wishes are not given more importance than any other factor.
The answers to the first parts of questions 1 and 2 were therefore “yes”. Yes, the court has the jurisdiction to make an order in respect of an adult who has capacity to make decisions and who opposes the FMPO (McFarlane P described this as protecting a person from themselves). Yes, the court has the jurisdiction to require a person’s passport to be removed and retained by the authorities. The issue was therefore to what extent and how should those powers be exercised.
Much of the argument at the appeal centred on how the legislation should be applied when considering the competing human rights which come into play. Some rights set out in the ECHR are considered to be absolute – so the state must uphold them all the time – and some are considered to be qualified, which means that the state may interfere in those rights where it is proportionate and necessary to do so. How do we balance these?
The Secretary of State highlighted specific aspects of the rights in play as follows:
1) Preventing a breach of the right to marry under ECHR, Article 12 (see R (Quila) v Secretary of State for the Home Department  3 WLR 836);
2) Discharging the UK’s positive obligation under ECHR Article 8 with regard to the right to respect for private life and the protection of the moral and physical integrity of individuals by enhancing or liberating the autonomy of a vulnerable adult;
3) Discharging the UK’s positive obligations under ECHR, Article 3 [prohibition on torture, inhuman or degrading treatment or punishment] in cases where forced marriage may give rise to a real risk of behaviour sufficient to engage Article 3. In cases in which the Article 3 threshold has been crossed, the UK has an obligation to take reasonable steps to prevent a real risk of inhuman or degrading treatment at the hands of non-State actors, which includes treatment which may be imposed outside the jurisdiction;
4) Discharging the UK’s positive obligation under ECHR Article 5 with respect to deprivation of liberty;
5) In particularly serious cases, discharging the UK’s positive obligations under ECHR Article 2 [right to life].
The Southall Black Sisters made the following important submission:
“Cases of forced marriage do not just involve private individuals, but they involve the State undertaking an active and positive role in the protecting of an individual from themselves and, normally their community. …When considering what protection should be put in place for a victim in what is near-universally by definition a family setting, the Family Court has to undertake a sensitive and careful balancing exercise. The issue in such cases is not whether there should be State intervention, but rather what that intervention should be, taking into account human rights considerations (in particular Article 3) and the victim’s standpoint and views. Where the court’s obligation to protect a victim does not conform – as in the instant case – with the victim’s expressed wishes – the court must be particularly careful as to how it evaluates the evidence and reaches a conclusion as to what, if any, protective orders should be put in place. …Ultimately though, the court’s primary focus is likely to be to prevent a victim being left unprotected and exposed to the risk of further harm, and a breach of their Article 3 rights.”
In many cases, the person who requires protection will also want to benefit from that protection. Therefore the order is not likely to interfere with their other rights to a significant degree. However, even in cases where that person says they do not want the order to be made or to have restrictions placed upon them, sometimes the court will need to intervene to protect them. McFarlane P recognised that “In some cases, the State’s duty to protect an individual will override that individual’s stated wishes and feelings.”
The important test identified by McFarlane P was set out at paragraph 37 of the judgment:
It therefore follows that, in cases where there is potential conflict between Article 3 and Article 8 rights, the court must strive for an outcome which takes account of and achieves a reasonable accommodation between the competing rights. In this context, I have deliberately chosen the word “accommodation” to reflect the court’s approach. The required judicial analysis is not a true ‘balancing’ exercise in consequence of the imperative duty that arises from the absolute nature of Article 3 rights. Where the evidence establishes a reasonable possibility that conduct sufficient to breach Article 3 may occur, the court must at least do what is necessary to protect any potential victim from such a risk. The need to do so cannot be reduced below that necessary minimum even where the factors relating to the qualified rights protected by Article 8 are particularly weighty. Hence the need to find a word other than ‘balance’ to describe this process of analysis.
Additionally, in cases where the forced marriage has not yet taken place, McFarlane P pointed out that the court is not dealing with a harm that is certain to take place, but instead a risk that it may do in the future. Therefore, there must also be an assessment of proportionality as to what is required to protect the person from that risk. In order to carry out this assessment, McFarlane P commended the approach taken by Moylan LJ in Re X (A Child: FGMPO) (Rev 2)  EWCA Civ 1825, which is a case relating to the making of a Female Genital Mutilation Prevention Order.
McFarlane P went on to give guidance to be applied in every FMPO case, which he helpfully described as a “Routemap to Judgment” at paragraphs 45-55. There are four stages, summarised as follows:
- Find the Facts
Applying the civil standard of proof (the balance of probabilities) the court must establish the facts of the case. The burden of proof is on the applicant who says that an FMPO should be made. There does not need to be a full fact-finding exercise (or trial) at the first hearing, when an FMPO can be made on a without notice or an urgent basis if needed to protect a person. However, if the order is contested or there is an application to discharge or vary it, there should be a fact-finding evaluation.
2. Determine whether a person has been forced into a marriage or whether there is a need to protect a person from being forced into a marriage.
3. Is there a real and immediate risk of the person suffering inhuman or degrading treatment sufficient to cross the ECHR Article 3 threshold?
The court must assess the risks and the protective factors relating to the situation of the person said to be vulnerable to forced marriage. A balance sheet of the positives and negatives of the circumstances within the particular family as they relate to the potential of a forced marriage may assist.
4. Achieve an accommodation between protecting the person from harm (Article 3) and respecting their autonomy and right to a private and family life (Article 8).
The court must establish the minimum necessary measures to meet the extent of the Article 3 risk identified. This should be a “bespoke order which pitches the intrusion on private and family life at a point which is necessary in order to meet the duty under Article 3, but no more”. The court must bear in mind that family circumstances may change and that it would only be in the most clear and serious cases that an open-ended order will be made; otherwise, the order should be time-limited or there should be a mechanism for review.
It is important to note that the Court of Appeal did not criticise HHJ Tucker’s approach and, in fact, praised many aspects of the way in which she dealt with this difficult case, including her decision to adjourn the case to enable the victim to undergo some self-protective counselling. It was suggested that this could be considered in all cases of this nature. Nevertheless, the appeal was allowed to the extent that the Court of Appeal agreed that the passport order ought not to be open-ended. The matter was listed for further review in 2022.
Transparency and forced marriage
Private hearings & public interest immunity
Pursuant to FPR 11.7(1), the hearing of an application for an FMPO must be in private, unless the court directs otherwise. The court is also given the power pursuant to FPR 11.7(2) to direct the withholding of any submissions made or any evidence adduced within the proceedings in order to protect the person who is subject to the proceeding, or any other person, or for any other good reason. This wide-reaching power must be read and considered alongside the case law relating to public interest immunity applications and the competing human rights of the parties – including the Article 6 rights of the respondents – must be balanced.
Without notice orders
FPR 11.2 and s.63D of the Family Law Act 1996 permit the granting of FMPOs on applications made without notice to the respondents (“ex-parte” applications). The court must consider all of the circumstances, including any risk of significant harm to the person to be protected or another person if the order is not made immediately; whether it is likely that the applicant will be deterred or prevented from pursuing an application if the order is not made immediately; and whether the respondent is deliberately evading service and that the delay in service will cause serious prejudice to the person to be protected.
Pursuant to s.63C(6) of the Family Law Act 1996, the court has the power to make an FMPO where no application has been made but where, in any other family proceedings, the court considers that an FMPO should be made to protect a person, whether or not that person is a party to the proceedings, if somebody who would be a respondent to any FMPO application is a party to those proceedings. These wide-ranging powers enable the court to take actions on an urgent basis where evidence arises that support the need for the making of an order.
Since 2017, pursuant to s.122A of the Anti-social Behaviour, Crime and Policing Act 2014, lifetime anonymity is granted to persons who are alleged to be a victim of the offence of forced marriage. Unless this restriction is lifted by the criminal court, it is an offence to publish any information likely to lead members of the public to identify the person. Additionally, as applications for an FMPO to either the Family Court or High Court will be heard in private (unless otherwise directed), s.12 of the Administration of Justice Act 1960 applies and reporting restrictions may be imposed. Of course, any restrictions must be balanced with the competing public interest in open justice relating to this serious societal harm.
Further reading & resources
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