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A Local Authority v X & Anor (Children) [2013] EWHC 3274 (Fam)

Application by local authority in the course of care proceedings for a declaration of non-recognition of a marriage in Pakistan of a 14-year old girl. Application dismissed.

X was born in England in 1997. Her parents had immigrated to England from Pakistan some 40 years earlier. In 2011, aged 14, X travelled with her father and brother to Pakistan where, under duress, she underwent a ceremony of marriage to a 24 year old man. The marriage was consummated two weeks later and X became pregnant. She returned to England and the baby was born in the autumn of 2012. The local authority commenced care proceedings in relation to X and the baby.

Within the care proceedings the local authority, with the support of X through her Guardian, sought a declaration of non-recognition of the marriage in Pakistan.  The Court found that X was domiciled in England at the time of the marriage and the validity of the marriage was therefore governed by the Marriage Act 1949. Pursuant to that Act which stipulates that a marriage between persons either of whom is under 16 shall be void, the marriage was found to be void.  The case of Pugh v Pugh [1951] P 482 establishing that the statutory provisions as to minimum age are extra-territorial in effect was approved.

Holman J stated that in the event X chose to present a petition, the court could pronounce a decree of nullity on the ground that the marriage was void. Having regard to s. 58(5) Family Law Act 1986 which places a statutory bar on any court declaring a marriage void at its inception, the court refused to grant the declaration sought by the local authority.

The court distinguished the case of B v I (Forced Marriage) [2010] 1 FLR 1721 which involved a 16 year old forced into marriage by duress. That marriage was voidable because of the duress but not void. On the facts of the case, Baron J was clear that nullity was not an option as it was statute-barred and therefore the inherent jurisdiction of the court could be invoked to make a declaration – not that the marriage was void at inception but that there was never a marriage capable of recognition in England and Wales. In the present case there was not a bar to obtaining a decree of nullity and the court held that to grant the declaration sought would be flouting the statutory prohibition in s.58 (5).

Summary by Georgina Clark, barrister, Field Court Chambers
______________________________

Neutral citation no:  [2013] EWHC 3274 (Fam)
Case No: FB12C00364/FB12C00365

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY

Civil Justice Centre
The Priory Courts
33 Bull Street
Birmingham, B4 6DS
Date: 22nd October 2013.

Before:

MR JUSTICE HOLMAN
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Between:

A local authority Applicants
 
- v - 

'X' (by the child 'X's guardian) Respondent/mother

and

A Child (by the child's guardian) 
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(As approved by the judge)

Tape Transcription of Marten Walsh Cherer Ltd.,
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP
Telephone No: 020 7067 2900.  Fax No: 020 7831 6864

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MISS E. RICHARDS, solicitor, appeared for the applicants.
MISS V. MEACHIN of counsel appeared (through her guardian) for the respondent mother.
MR N. COLE of counsel appeared for the child's guardian.
- - - - - - - - - - - - - - - - - - - -

JUDGMENT
MR JUSTICE HOLMAN:

1. A local authority are applicants in care proceedings concerning a mother, who is herself a child, and also her baby. 

2. Collateral to those care proceedings the local authority have issued a freestanding application notice in which they ask for permission to invoke the inherent jurisdiction of the High Court and a declaration of non-recognition of the marriage of the young mother.

3. Earlier today I made plain that I was not willing to make such a declaration, and briefly indicated my reasons.  In the light of that indication, the local authority have now formally withdrawn their application; but the purpose of this short judgment is to explain and record my reasons a little more fully, and also to record certain findings for the future conduct of the care and possible placement proceedings.

4. I will refer to the mother as 'X', which is not the initial letter of any of her names.  She is the youngest of a number of children of Muslim parents who immigrated to England from Pakistan. 

5. There is evidence that her father travelled to live in England about forty years ago.  His wife travelled to live in England around the time of their marriage.  They have both lived here as their home ever since, although they make return holiday visits to Pakistan.  Over thirty years ago the father became a citizen of the United Kingdom.  'X' herself was born in 1997.

6. Late in 2011, her father, accompanied by one of her adult brothers, took 'X' to Pakistan.  There she underwent a ceremony of marriage to a man living in Pakistan which I will assume has formal legal validity under the law of the place where it was contracted. On the date of the marriage 'X' was aged fourteen.

7. The domicile of origin of 'X' is necessarily the domicile of her father on the date of her birth in 1997.  On the facts that I have very briefly summarised it appears, on a balance of probability, that he was domiciled in England and Wales on that date and, accordingly, that her domicile of origin is England and Wales.  There is nothing at all to suggest that the father's domicile changed between the date of her birth in 1997 and the date of the marriage in late 2011, so as to change her own domicile by dependency.    Accordingly, it appears, on a balance of probability, that her domicile on the date of the marriage remained England and Wales.

8. Under the law of England and Wales the minimum age of both parties to a valid marriage is governed by the Marriage Act 1949 if either party is domiciled in England and Wales on the date of marriage.   Section 2 of the Marriage Act 1949 provides as follows:

"A marriage solemnised between persons either of whom is under the age of sixteen shall be void." 

 Section 11 of the Matrimonial Causes Act 1973 provides, so far as is material, that: 

"A marriage celebrated after 31 July 1971 shall be void on the following grounds only, that is to say -

(a) that it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986 (that is to say, where –

(i) …;

(ii) either party is under the age of sixteen; …)"

9. On the date of the marriage 'X' was under the age of sixteen.  In fact, she was still only fourteen.  It follows, therefore, as a matter of mixed fact and law, that the marriage in question is, so far as concerns the law of England and Wales, void.   Further, the case of Pugh v Pugh [1951] P 482 clearly establishes that the statutory provisions as to minimum age are extra territorial in effect. If either party was domiciled here on the date of the marriage (as she was) and one of them was under the age of 16 (as she was), it makes no difference that both parties may have been of sufficient minimum age and had capacity under the law of the domicile of the other party or under the law of the place where the marriage was contracted.

10. 'X' has given an account of the circumstances surrounding that marriage which are, frankly, harrowing to read.   I have not heard any oral evidence, nor has the father or relevant brother of 'X' had any opportunity to file any evidence in answer to the statement of 'X' herself; but on her account in that statement this was a grave example of a marriage which was forced under considerable duress, involving at one stage the production of a gun and physical violence upon 'X'. 

11. The marriage was consummated about two weeks later after further threats to 'X' if she did not permit her husband, who was aged about twenty four, to have sexual intercourse with her.  As a result, while still aged fourteen, she became pregnant with the baby to whom I have referred. 

12. 'X' returned to England and the baby was born in the autumn of 2012 and is now aged just over one.  The local authority commenced care proceedings in relation to both 'X' and her baby.  These are still ongoing and it is not necessary to make any reference in this judgment to the continuing issues in those proceedings.

13. The local authority advance two essential reasons for seeking the declaration to which I have referred to the effect that that marriage is not recognised as a valid marriage in England and Wales. 

14. The first reason is that they consider that it would be advantageous to 'X' to have the legal status of that marriage in England and Wales clarified by such a declaration.  In that, they are supported by 'X' herself and by 'X's guardian in the care proceedings and by the baby's guardian in the care proceedings. 

15. The second reason is to clarify, for the purpose of the proceedings in relation to the baby, the legal status of the baby's father.  The father is not named on the baby's birth certificate. At the moment, the local authority do not know the identity, and still less the whereabouts, of the man with whom 'X' went through the ceremony of marriage, who is, indeed, the genetic father of the baby.  Under English law, if he was validly married to 'X' at the time of, or at any time between, the conception or birth of the baby, then he has parental responsibility for the baby.   (See sections 2 (1) and (3) of the Children Act 1989, read with section 1 of the Family Law Reform Act 1987).   If he was not validly married to her at any time during that period, then (not being himself domiciled here) he does not.  That, of course, has some consequential effects upon his status within the care proceedings in relation to the baby and also within the application that the local authority have issued for a placement order in relation to the baby.

16. So far as that second reason or purpose is concerned, I hold by this judgment, as a mixed finding of fact and law for the purpose of the care and placement proceedings, (but not making any declaration to this effect) that the marriage between 'X' and the father of the baby is, on a balance of probability, void.   Under English law, the father was not validly married to the mother on the date of the baby's conception or birth.   Section 1(3)(a) of the Family Law Reform Act 1987, read together with section 1(1) of the Legitimacy Act 1976,  provides that a child shall nevertheless be treated as legitimate (with the consequence that the father does have parental responsibility) if at the time of the child's conception either of the parties reasonably believed that the marriage was valid. However section 1(1) of the Legitimacy Act 1976 is subject to subsection (2) .   Subsection (2) provides that subsection (1) only applies where the father of the child (viz. of the baby in this case) was domiciled in England and Wales at the time of the birth which, patently, the father of this baby was not. I therefore hold that the father does not have parental responsibility for the baby.

17. The man in question still has all the rights of a putative or non-marital father who is not named on the birth certificate, but he does not have the rights or status within the care or placement proceedings of a marital father with parental responsibility.  I say nothing in this judgment with regard to the degree of inquiry which the local authority need to make with regard to his whereabouts or the service of any material upon him. I say only that they are entitled for all purposes connected with the care and placement proceedings to proceed on the basis that he is a genetic father who does not have parental responsibility for the child. 

18. But the local authority, supported, as I have said, by 'X' herself and separately by the guardian for the baby, seek that I go further and make a formal solemn declaration, intended to have a much wider effect beyond the scope of the care proceedings, to the effect that the marriage is not recognised under the law of England and Wales.

19. On the facts as I have recounted them, there is no question but that 'X' herself, who is now approaching the age of seventeen, could present a petition for nullity on the ground that her marriage is void on the ground that at the date of the marriage she was under the age of sixteen.  Indeed, at an earlier directions hearing in this case in June of this year, I made an order which included the following paragraph: 

"'X' must give consideration as to whether she wishes to issue a petition for a decree that the said marriage is void on the grounds that (i) on the date of the marriage she was domiciled in England and Wales; and (ii) on that date she was under the age of sixteen, so that the marriage was void pursuant to section 2 of the Marriage Act 1949 and section 11(a)(ii) of the Matrimonial Causes Act 1973 (see Pugh v Pugh [1951] P 482).  In the event that she voluntarily decides to issue a petition, it should be issued in the Birmingham County Court and an application made for it to be transferred to the High Court of Justice in the Birmingham District Registry."

20. The purpose of that paragraph of that order and various other consequential directions was so that if, in the intervening period, 'X' did choose to issue a petition for nullity, it could and would be listed for formal hearing before myself here today in conjunction with the hearing that has also taken place today on various aspects of the care proceedings.  However, between then and now 'X' has not issued a petition for a decree that her marriage is void.

21. At paragraph 23 of her most excellent position statement prepared for the hearing today, Miss Vanessa Meachin, counsel on behalf of 'X' (through her guardian), wrote as follows: 

"'X' is the victim of a forced marriage and rape.  She is sixteen and struggling with the complexities of the two sets of legal proceedings that she is already involved in. It is respectfully submitted that it is unrealistic to consider that she is presently equipped to proceed with a petition for nullity." 

22. Later, at paragraph 26, Miss Meachin wrote: 

"The applicant local authority have set out their position comprehensively as to why such relief is sought and is entirely appropriate. In this respect 'X', her guardian and legal team entirely support the position taken by the applicant and commend the relief sought to the court.  This is a matter that is capable of being resolved at this hearing."

23. In elaboration of what she wrote there, Miss Meachin has added today, with eloquence and cogency, that it is really too much to expect 'X', at any rate at her present age and stage in life, herself to take an active step that would be so defiant of her parents and family as herself to petition for a decree that the marriage that they forced her to enter into, as I have described, is void.  In effect, 'X' and her legal advisors on her behalf seek to shelter behind the application that the local authority have issued, as I have described.

24. There is a line of authority, both at first instance and in the Court of Appeal, whereby in certain circumstances courts have made declarations that a marriage contracted abroad is not recognised here for one reason or another.  Sometimes that outcome is sought in situations where the party to the marriage lacked mental capacity to contract a marriage and continues to lack mental capacity to take any steps to seek its annulment.  Lack of mental capacity, however, and also duress, are not grounds which render a marriage void but, rather, which render it voidable under section 12(c) or (d) of the Matrimonial Causes Act 1973.

25. This case, however, is different.  There may, indeed, have been reasons why the marriage is voidable under section 12 since it was achieved in consequence of duress; but in the present case there is the overarching fact that the marriage is altogether void because of the age of 'X'.  The advocates have sought to rely, in particular, upon the authority of Baron J in B v I (Forced Marriage) [2010] 1 FLR 1721.  In that case the young woman in question was already aged sixteen at the time of the ceremony of marriage. It was, however, a forced marriage into which she had been forced by duress.  There was no question of the marriage in that case being void, although it was, at its inception, voidable.  However, section 13(2) of the Matrimonial Causes Act 1973 has the effect that there is a statutory bar on petitioning for a decree of nullity where a marriage is voidable for duress if more than three years have elapsed from the date of the marriage.  In that case, the issue as to the status of the marriage was only raised after more than three years had elapsed, and accordingly at a stage when it was no longer legally possible to obtain a decree of nullity. It was in those circumstances that Baron J was asked to make, and did make, a declaration that the marriage in question was never a marriage which was capable of recognition as a valid marriage in England and Wales.

26. It is very important to note that at paragraph 14 of her judgment Baron J said: 

"A number of authorities have been placed before me which persuade me that judges at first instance and, more importantly, the Court of Appeal regard the inherent jurisdiction as a flexible tool which must enable the court to assist parties where statute fails…" [my emphasis]

27. At paragraph 16 of her judgment, Baron J quoted a passage from an earlier judgment of Coleridge J in which he had said:  

"There is a real stigma attached to a woman in the petitioner's situation if merely a divorce decree is pronounced and it is desirable from all points of view that where a genuine case of forced marriage exists, the courts should, where appropriate, grant a decree of nullity and, as far as possible, remove any stigma that would otherwise attach to the fact that a person in the petitioner's situation has been married."

Baron J continued by saying: 

"In this case, nullity is not an option for it is statute barred."

28. The facts and legal situation in that case were, therefore, completely different from those in the present case.  In the present case statute does not "fail", for there is no time bar to obtaining a decree of nullity in the case of a marriage which is void.   So in this case nullity is "an option" and is not statute barred.

29. In her judgment in B v I Baron J correctly adverted to subsection 58 (5) of the Family Law Act 1986.  That provides as follows: 

"(5)  No declaration may be made by any court, whether under this Part or otherwise – (a) that a marriage was at its inception void." 

Note that that subsection contains an absolute statutory prohibition on any court making a declaration that a marriage was at its inception void, "whether under this Part or otherwise".  It, therefore, absolutely forbids the making of a declaration, even in the so-called inherent jurisdiction of the High Court, to the effect that a marriage was at its inception void.

30. As Baron J said in paragraph 12 of her judgment in B v I :

"That term was included in the Family Law Act 1986 to ensure that the Act was not used to circumvent the strict requirements of the Matrimonial Causes Act 1973."

She continued: 

"However, it is clear that the inherent jurisdiction must be used in a manner that is flexible enough to ensure that justice is provided for all.  The plaintiff in this case does not seek a declaration that the marriage was void at its inception, rather, she seeks a declaration that there was never a marriage capable of recognition in England and Wales."

31. As Baron J herself later said at paragraph 17, the distinction between making such a declaration and a declaration that the marriage was at its inception void is "an extremely fine" one.   But, on the facts of that case, Baron J was never faced with the situation where the court might have been able to make a decree of nullity on the ground that the marriage was void or a declaration that the marriage was "at its inception void".    On the facts and in the circumstances of the case with which she was faced, the marriage was never a void one but was, at most, one which was voidable in the discretion of the court on the grounds of duress which fall under section 12 rather than section 11 of the Matrimonial Causes Act 1973.

32. It seems to me that there is a fundamental distinction between the facts and circumstances in the case of B v I and those with which I am faced. In the present case, as I have said, this marriage is a void one.  If 'X' chose to present a petition for nullity, which she has ample age and mental capacity to do, being now aged almost seventeen and of normal maturity and intelligence, then (if satisfied as to the facts) the court could and would pronounce a decree of nullity on the ground that the marriage is void.

33. There is no statutory gap in this case. If, on the facts of this case, I were to grant a declaration to the effect that the marriage is not recognised in England and Wales, or that there never was a marriage which is capable of recognition in this jurisdiction, I would not be filling a gap. I would, frankly, be bypassing and flouting the statutory prohibition in section 58(5) of the 1986 Act by a mere device.  I cannot do that and I am not prepared to do that.

34.  I do understand and have sympathy with the point and position that it might be particularly defiant by 'X' of her family for her herself to initiate proceedings for a decree of nullity, although she now has little contact with most members of her family.  The reality is that sooner or later she needs fully to resolve her legal status and to face up to the obviously necessary step of obtaining a decree of nullity, not least for the reasons given by Coleridge J in the passage quoted at paragraph 27 above.   That, however, is a matter for her own decision, her own timing, and her own choice.   For the reasons that I have now given, I simply refused to make the declaration sought.