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Court of Appeal provides route map for Judges to follow when considering whether to make a Forced Marriage Protection Order

Mon 19th Apr 2021

Re K (Forced Marriage: Passport Order) 2020 EWCA Civ 190

The judgment is the first consideration by the Court of Appeal of Forced Marriage Protection Orders (FMPOs) made under s63A Family Law Act 1996 (FLA 1996).

In this case the court was asked to consider the following issues:

(1)       Whether the court has jurisdiction, and if so should that jurisdiction be exercised, where
the individual said to be requiring protection is an adult who does not lack mental capacity
to make any relevant decision, and who opposes the FMPO.
(2)       Whether the Family Court has jurisdiction, as part of a 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’
(3)       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 of 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.

The court held that it had power to make orders in respect of adults who have capacity, including to impose a travel ban or to confiscate a passport. The court gave guidance on how to accommodate rights under Article 8 of the ECHR with potential breaches of Article 3.

FACTS

The Applicant K was a single woman aged 35. K did not lack mental capacity to make decisions with respect to a marriage, and, in particular, whether she should be the subject of a FMPO. At the time of the original application in 2015, K lived in the family home together with her mother and various relatives. On 29th May 2015 and 3rd June 2015 K contacted her local police force alleging that her family were seeking to force her to marry against her will and that they had threatened to murder her if she refused to do so. The police had also received numerous calls by a neighbour or neighbours over the preceding ten months expressing concern for K.

On 5th June 2015 the police applied for a without notice FMPO. In January 2016 a three day contested hearing took place. At the contested hearing K sought to discharge the FMPO having withdrawn her allegations that she had originally made to the police. The police submitted that the FMPO should continue.

At the contested hearing various members of K’s family were Respondents and attended the hearing. The senior male member of the family, K’s eldest brother, presented particularly challenging behaviour in the courtroom. The family’s case was that there was no truth in the original allegations which were a combination of lies and false accusations made up by the police and/or ill-intentioned neighbours. On 21st January 2016 the Judge gave a short ex tempore judgment in which she concluded that K continued to require the protection of the court under the forced marriage legislation and that the 2015 FMPO would remain in force subject to some detailed amendment. The court also made an order that K’s passport and other travel documentation shall be held until further order by the police, and a further order that the respondents were forbidden from applying for any new passport or any other documentation for K from the UK passport office or from any other foreign passport agency.

In the days following the Judge’s order K’s eldest brother seriously assaulted K which led to K fleeing from the family home. The brother was arrested and held in custody, however the prosecution against him for breach of the FMPO was discontinued as K withdrew her allegation. K was however moved to safe accommodation in a refuge and in May 2016 K was rehoused by the local authority and since this date has continued to live separately from her family.

In December 2017 K’s mother died. Her body was flown to Pakistan for the funeral. Most, if not all, of K’s family travelled to Pakistan for the funeral with the exception of K who was unable to travel because her passport was held by the police. K applied to discharge the FMPO on an urgent basis. She particularly wanted the Passport order to be discharged. The application could not be heard in time to permit K to travel to Pakistan for the funeral and a more measured process was undertaken including the instruction of a fresh expert witness. This led to a further two day hearing in July 2018.

On 15th August 2018 the Judge hearing the case distributed a draft judgment indicating her decision to refuse K’s application to discharge the FMPO. The Judge adjourned the final determination in order ‘to provide some time for K to consider the judgment and take steps to engage with professionals to consider the risk of travel and how that may be guard against’. The Judge had accepted expert evidence that if K was seen to be in a position to protect herself during any visit to Pakistan, then the risk of forced marriage during foreign travel might, to some extent be reduced.

At the final hearing on 4th December 2018 K said she had not taken, and did not intend to take, any steps to engage with professionals to consider the risks of foreign travel. The Judge therefore confirmed her decision to refuse K’s application to vary or discharge the FMPO for the reasons given in the judgment on 15th August 2018.

K appealed the Judge’s decision and on 24th May 2019 Williams J granted K permission to appeal and directed that the appeal should be transferred to the Court of Appeal.

At the Appeal hearing the court heard submissions on behalf of K and the police. The court also heard from the Secretary of State and Southall Black Sisters (‘SBS’) a charity which had been given permission to intervene. SBS has substantial experience in cases of forced marriage.

The Court of Appeal said that although the significance of this appeal for K and for her family should not be underestimated, it is clear that the issues go beyond the particular facts of this case and are of general importance. The court went onto say that the focus of the judgment will, therefore, primarily be upon the matters of principle that have been raised with the aim of addressing the overreaching issues and offering guidance to courts which may, in the future, be faced with a similar application.

The Court of Appeal reiterated that forced marriage is a fundamental abuse of human rights, a form of domestic abuse, and since 2014 a criminal offence in England and Wales. McFarlane P said:

The abusive nature of forced marriage does not begin and end of the day of the marriage ceremony. Rather, the marriage forms part 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.

Against that perspective it must be accepted that a forced marriage is likely to include behaviour sufficient to breach ECHR Article 3 which provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

SOUTHALL BLACK SISTERS
SBS made detailed and comprehensive submissions at the appeal hearing. SBS regard FMPO under the FLA 1996, Part 4 as having been hugely important in protecting and preventing forced marriage because the orders can be finely tuned to fit an individual’s circumstances and needs.

SBS’s submissions to the Court of Appeal describe their work which involves treading a difficult path in ensuring sufficient protection for potential victims whilst, at the same time, maintaining the individuals autonomy by respecting their wishes and feelings and encouraging, rather than compelling, women to make choices that will keep them and any children safe. There is, SBS submitted, a fine line between protection and excessive intervention. SBS said:

“Cases of forced marriage do not just involve private individuals, but they involve the State undertaking an active and positive role in protecting an individual from themselves, and normally their community … When considering what protection should be put in place for a victim in what is near-near-universally by definition a family setting, the Family Court had to undertake a sensitive and careful balancing exercise. The issue in such cases is not whether there should be State intervention, but rather what intervention should be, taking into account human rights consideration (in particular Article 3) and the victims standpoint and views. Where the court’s obligation to protect a victim does not conform – as in the instant case – with the victim’s express 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 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.”

SECRETARY OF STATE
The Secretary of State submitted that Part 4A of the FLA 1996 pursues the legitimate aims of seeking to prevent forced marriages being entered into, and of providing assistance to those individuals who have been forced to marry. The Secretary of State highlighted five specific aspects:

1)         Preventing a breach of the right to marry under ECHR Article 12 (see R (Quila) v
Secretary of State for the Home Department 2011 3 WLR 836);

2)         Discharge the UK’s positive obligations under ECHR 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 obligations under ECHR Article 3 in cases where forced marriage may give rise to a real risk of behaviour sufficient to engage Article 3. In cases where 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 obligations 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.

PROPORTIONALITY
All the parties in the case were in agreement that an assessment of proportionality must be undertaken. McFarlane P said that on one view ‘proportionality’ may seem to be an in appropriate concept when the court is considering an absolute convention right such as Article 3. However, in cases where a forced marriage has not yet taken place the court will not be dealing with the certainty that future harm will take place but rather the assessment of the risk that it may do so. Where protective measures will necessarily limit the freedom of the protected person and others to enjoy other Convention rights, it will be necessary to evaluate with a degree of precision the extent of protection that is necessary in each individual case. McFarlane P said the exercise to be conducted in an FMPO application is broadly similar to that undertaken where the risk of future harm arise from the potential for Female Genital Mutilation. The Court of Appeal decision in Re X (A Child)(FGMPO) (Rev)(2) 2018 EWCA Civ 1825 set out in the leading judgment of Moylan LJ and was highly relevant to the central question before the court in the appeal in this case namely the accommodation that must be reached in each case between the need to protect an individual from harm, whilst at the same time protecting their other human rights particularly those relating to private and family life. McFarlane P said the analysis given by Moylan LJ at paragraphs 23 to 33 is of particular relevance and assistance.

FORCED MARRIAGE APPLICATIONS: A ROUTE MAP
The Court of Appeal held that applications for FMPOs should be considered in four stages:

(1)     Stage one is for the court to establish the underlying facts based upon admissible evidence and by applying the civil standard of proof. The burden of proof will ordinarily be on the applicant who asserts the facts that are said to justify the making of a FMPO.

(2)     At stage 2 based on the facts that have been found, the court should determine whether or not the purpose identified in the FLA 1996 s.63A(1) is established, namely that there is a need to protect a person from being forced into a marriage or from any attempt to be forced into a marriage, or that a person has been forced into a marriage.

(3)     At stage 3 based on the facts that have been found, the court must then assess both the risks and the protective factors that relate to the particular circumstances of the individual who is said to be vulnerable to forced marriage. This is an important stage and the court may be assisted by drawing up a balance sheet of the positives and the negatives within the circumstances of the particular family in so far as they may relate to the potential for forced marriage. At the conclusion of this stage the court must explicitly consider whether or not the facts as found are sufficient to establish a real and immediate risk of the subject of the application suffering inhuman or degrading treatment sufficient to cross the ECHR Article 3, threshold.

(4)     If the facts are sufficient to establish a risk that the subject will experience conduct sufficient to satisfy ECHR Article 3, the court must then undertake the exercise of achieving an accommodation between the necessity of protecting the subject of the application from the risk of harm under Article 3 and the need to respect their family and private life under Article 8 and, within that, respect for their autonomy. This is not a ‘strict’ balancing exercise as there is a necessity for the court to establish the minimum measures necessary to meet the Article 3 risk that has been established under Stage 3. In undertaking this stage the court should have in mind the high degree of flexibility which is afforded to the court by the open wording of FLA 1996, s64A. In each case, the court should be encouraged to establish a bespoke order which pitches the intrusion on private and family life at the point which is necessary in order to meet the duty under Article 3, but no more. The length of the order, the breadth of the order and the elements within the order should vary from case to case to reflect the particular factual context; this is not a jurisdiction that should ordinarily attract a template approach.

ISSUES THE COURT WAS ASKED TO CONSIDER
 1)         Whether the court has jurisdiction, and, if so, should that jurisdiction be exercised, where the individual said to be requiring protection is an adult who does not lack mental capacity to make any relevant decision, and who opposes the FMPO?’

In respect of this issue McFarlane P said:
‘35: It is therefore clear that the court has jurisdiction to make a FMPO to protect an adult who does not lack mental capacity and no submissions were made to the contrary before this court. Further, the express positioning within s63A(3) of ‘wishes and feelings’ as an aspect of ‘well-being’ indicates that the wishes and feeling of an adult with full capacity who is subject to an FMPO application fall to be taken into account, but are not in any manner an automatic trump card or determining factor.
 
36: That this is so is an illustration of the overall policy as indicated in the SBS submissions. In some cases, the State’s duty to protect an individual will override that individual’s stated wishes and feelings. In lay terms; the court, therefore, has jurisdiction, in a particular case, to protect a person from themselves. That this is so is a clear consequence both of the structure and content of the statutory provision, but also the operation of the relevant articles of the ECHR where, again as demonstrated by the SBS submissions, in some cases the need to protect an individual under Article 3 may be in conflict with that individual’s Article 8 rights to private and family life.’

 2) Whether the Family Court has jurisdiction, as part of a 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’?

In respect of this issue McFarlane P said
‘56: The open and flexible wording of FLA 1996 S53(B)(1) which permits the court to make an order containing prohibitions, restrictions or other terms the court considers appropriate for the purpose of protecting a person from a forced marriage, plainly can include the imposition of a travel ban and/or the confiscation of a passport.

 66: In an appropriate case, in addition to removing the means to travel by making a passport order, the jurisdiction under FLA 1996, Part 4A is sufficiently wide to make an express injunction against the person to be protected preventing them from leaving the jurisdiction. Indeed it may be a protective act for the court to make explicit, as to do otherwise might render the person more vulnerable to pressure from the family if it was thought that that person retained the ability, subject to a passport, voluntarily to leave the country. However making an express injunction against the person to be protected opens up, as a matter of law, the prospect of proceedings against that person were it subsequently to be said that they had breached the court order. It is, therefore, a step that a court should only take after a very careful analysis of the risks and the degree to which protection is necessary.

67: Whilst the breadth and flexibility of the court’s jurisdiction applies to the making of a passport order just as it may apply to any other element within an FMPO. I agree with Ms Fottrell’s submission that authorities establish that an open-ended passport order or travel ban should only be imposed in the most exceptional of cases and where the court can look sufficiently far into the future to be satisfied that highly restrictive orders of that nature will be required indefinitely. In all other cases the court should impose a time limit when making such orders. The time limit will vary from case to case and like all other elements be a bespoke provision imposing a restriction in so far as that is justified on the facts as found. Unless the court can see with clarity there will be no need for any continuing order after a particular date, for example when it is clear that the circumstances with change so that the risk is removed, the appropriate course will be for the court to list the matter for further review a short time before the passport and/or travel ban will otherwise expire.’

3) 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 of 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?

 In respect of this issue McFarlane P said:
‘37: It therefore follows that, in cases where there is potential conflict between Article 3 and Article 8 rights, the court must strive for a 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 that 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 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.’

CONCLUSION
It is hoped that the guidance in the case of Re K (Forced Marriage: Passport Order) 2020 EWCA Civ 190 as to the route which the court should follow when analysing and determining an application for a FMPO will assist in future cases.

The approach taken by the Judge at first instance in adjourning the case for a number of months in order to allow K the opportunity of accessing counselling and demonstrating that she could sufficiently robust to protect herself were she to travel to Pakistan was a proportionate and sensible decision. It was commended by the Court of Appeal. The court said it is a step that should be considered by other judges in a similar case in the future.

The Court of Appeal also gave case management guidance namely that Judges facing the difficulties that the Judge at first instance faced would be better advised to issue a written judgement which fully explains the facts that have been found and the court’s route to its decision. Any oral hearing might then be short, yet all involved, and any subsequent readers of the judgement would know how the court had reached its decision.

ZIRA HUSSAIN
Broadway House Chambers
19th April 2021

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