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Home > Judgments > 2008 archive

RB v FB & MA [2008] EWHC 1436 (Fam)

Judgment arising from wardship of a child who held dual Pakistani and British passports and sought the assistance of the British High Commission when faced with the prospect of a forced marriage.

The subject of the case was a 15 year old Pakistani who had lived all her life in Pakistan. Her mother and the mother's "protector" had arranged a marriage to the protector's son who was considerably older than the daughter: it was also suspected that he was an alcoholic. The daughter had first sought the help of an elder half brother who lived in Scotland and subsequently the High Commission in Islamabad.

In this judgment, Hogg J had to consider whether the English courts could exercise jurisdiction as the child had never lived in the UK. She concludes that 

"If a young lady was in this country put into this position of a forced marriage it is absolutely certain that this court would have assisted her and provided her with orders to protect her from being coerced into a marriage."

Given these exceptional circumstances, the judge made the child a ward of court but since her arrival in the UK to live with the half brother in Scotland the Scottish courts became seised of the matter so she discharged the wardship.

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Case No: FD08P00651 

Neutral Citation Number: [2008] EWHC 1436 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL

Tuesday, 15 April 2008

BEFORE:

MRS JUSTICE HOGG


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IN THE MATTER OF A CHILD


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Approved Judgment
Crown Copyright ©
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Digital Transcript of WordWave International, a Merrill Communications Company
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(Official Shorthand Writers to the Court)
 
Mrs Justice Hogg: 
1. I am dealing with a 15-year-old young lady who is a British national and a Pakistani national.  She was born and has lived in Pakistan all her life.  Her father was a British citizen.  He had returned to Pakistan where he married the young lady’s mother, and he died in 2003.  She is currently my ward, I confirmed the Wardship on 4 April when this matter was first brought to court.

2. The young lady is 15.  She has an elder half brother in Scotland.  Towards the middle of March 2008 she contacted her brother asking for his help.  She herself, afterwards, went to the British High Commission in Islamabad on 31 March asking for help.

3. Her mother had been orphaned as a child and had been protected by a Mr S.  It was through him that the parents met and married.  He has a son who is considerably older than the 15-year-old ward.  He is unknown to her.  There is a suggestion the son is an alcoholic.  The mother and her former protector (I am not sure what the correct term would be; carer or guardian may be a better word) arranged a marriage for the 15-year-old ward and the protector’s son.  The ward did not wish to go through with this proposed marriage.  She made her feelings felt to her elder half brother, who is in Scotland, and made her own feelings felt to the High Commission in Islamabad when she went to them and, in essence, said, “I do not wish to be married to this man.  I don’t know him.  He’s too old.  I’ve heard he’s an alcoholic and I want to be taken out of this situation and I want to go and live with my brother in Scotland”. 

4. The High Commission was very responsive to this request.  They knew she was a British national holding a British passport and informed The Forced Marriage Unit in London that they would be prepared to bring this young lady to this country to rescue her from the situation but required legal backing and court orders before they could do so.

5. The brother is married with five children, one of whom is the same age, if not older, than my ward.  He has been checked and assessed very quickly by the local authority in Scotland as he was offering a home to his half sister. 

6. I was presented with a difficulty, on 4 April, over jurisdiction.  The ward had never been in this country.  Other than her father’s nationality she had no connection with this country, but she is a British national in desperate need of help.  I made her a ward of court and the appropriate orders to enable her to come to this country.  She came not to this country but to Scotland, direct to her half brother’s home, on 9 April.  She and the family were assessed on 10 April in Scotland as being a suitable and proper place for her.

7. The difficulty as to jurisdiction is that she had no connection, other than her father’s nationality, with this country.  I had to ask myself whether the inherent jurisdiction and the old parens patriae principles could be extended to protect her.  Thorpe LJ in Al Habtoor v Fotheringham [2001] EWCA Civ 186 said, when dealing with the parens patriae jurisdiction, that the courts of this jurisdiction should be extremely circumspect in assuming any jurisdiction in relation to children physically present in some other jurisdiction founded only on the basis of nationality. 

8. That was, and has been, my approach, but these were dire circumstances.  A young woman had presented herself to the High Commission.  They had not sought her out.  She was 15 and is still 15.  The marriage was due to take place on 10 April this year.  It was going to be a “forced” marriage, totally against her will.  The FCO in Islamabad assessed her as being Gillick competent.  This was a voluntary application by her to come to this country.  She wished to be rescued.  She was aware, and has been aware since, that she was making a huge voluntary decision to leave her family but such was her distress and anxiety that she made that decision and sought help from the British jurisdiction.  If a young lady was in this country put into this position of a forced marriage it is absolutely certain that this court would have assisted her and provided her with orders to protect her from being coerced into a marriage.

9. I came to the view that in these very dire circumstances the tentacles of this court should stretch towards Pakistan to rescue this child from the circumstances she found herself in.  It is a very unusual thing to do but such were the circumstances that I thought it was justified and made the order.  She is, and always has been, a British child, and she was seeking British help.  I pose the question: would it have been right to ignore her pleas?  The FCO wanted to help.  They saw her; they assessed her; they indicated that they would help, providing the appropriate orders were made in this country. 

10. Of course, each case will turn on its own circumstances and potentially there will be cases in the future where the circumstances are not sufficiently dire and exceptional when orders would not be appropriate.  In this case I took the view that the order should be made and I would only do it again if there were similarly exceptional circumstances.  I put it that way because I know that the Foreign and Commonwealth Office and the Forced Marriage Unit seek guidance as to how far they can go.  I do not think I can assist them in any other way.  Each case will turn on its own facts.  This was a 15-year-old.  Young people in this country are not allowed to get married before they are 16.  That in itself is something to consider.  It is wholly and completely wrong to require a young person or anyone to enter a marriage contrary to his/her wishes, and even more so if they are under age.  Arranged marriages are one thing; forced marriages are beyond the pale, and are indeed abusive.

11. I am asked to discharge the wardship because the Scottish courts are already seized with the matter.  I think it would be wrong for me to continue the wardship because the Scottish courts have jurisdiction and are dealing with the matter.  For that reason I will discharge the wardship and direct, as requested, that the papers in this matter should be made available for the Kilmarnock Family Court which is handling the matter.

12. A transcript of this brief judgment can be obtained and disclosed to that court and to the FCO Forced Marriage Unit.  I hope I have put enough information in without disclosing the identity of the young lady.  I hope that her confidentiality will be maintained, but I think it is a useful tool for the FCO to have and I hope it will provide some guidance for them in the future.

13. I will make the orders as sought.