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Forced Marriage, Local Authorities and Applications without Leave: The New Provisions

Louise McCallum, a barrister practising in family law at Zenith Chambers, Leeds and co-author of a practitioners guide to the Forced Marriage (Civil Protection) Act 2007, looks at the new provisions, which came into force on 1 November, allowing local authorities to apply for forced marriage orders without the leave of the court.

image of Louise McCallum, barrister, Zenith Chambers

Louise McCallum, Barrister, Zenith Chambers

The Forced Marriage (Civil Protection) Act 2007 came into force on 25th November 2008.  On the same day statutory guidance was implemented: The Right to Choose: Multi-Agency Statutory Guidance for Dealing with Forced Marriage.

When may a FMPO may be made?
The legislation inserts a new Part 4A into the Family Law Act 1996, adding new sections 63A to 63S. Section 63A provides that the court may make a Forced Marriage Protection Order (“FMPO”) for the purposes of protecting:

a) a person from being forced into a marriage or from any attempt to be so forced; or;
b) a person who has been forced into a marriage.

The court may therefore make a FMPO to prevent an apprehended forced marriage, or to initiate practical assistance to a victim of a marriage which has taken place. The victim of apprehended or actual forced marriage is referred to within the legislation as the ‘person to be protected’ (“PTBP”).

The legislation defines marriage as ‘any religious or civil ceremony of marriage (whether or not legally binding)’: s63S.  A person (‘A’) is forced into 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: s63A(4).  The force therefore need not come from the intended spouse.  Force can include coerce by threats or other psychological means: s63A(6).   Further, the conduct of the person ‘B’ which forces the PTBP, ‘A’, to marry, could be directed against A, B or another person entirely: s63A(5).  A family member, could for instance, threaten to harm themselves were the PTBP not to submit to the planned marriage.  Alternatively, threats might be made to harm a loved one of the PTBP. 

In deciding whether to make a FMPO, and the nature of the order, the court must have regard to all the circumstances, including the need to secure the health, safety and well being of the PTBP: s63A(2).

Orders can be made ex parte where the court considers it just and convenient to do so: s 63D(1).  Section 63D outlines the circumstances which the court will consider in determining whether to make a FMPO without notice.   

Contents of a FMPO
Section 63(B) provides that a FMPO may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate for the purposes of the order.  The terms of the order may seek to control conduct within and outside England and Wales: s63B(2).

By way of example, orders may be made forbidding the respondent/s from:

Orders may also be made requiring positive action on the part of the Respondent/s, for example:

The above are only examples of common terms: each FMPO will need to be adjusted to fit the circumstances of the individual case.  The court may include such other terms as may be appropriate.  Further, the Court is likely to consider it prudent to order the disclosure of the FMPO to the Foreign and Commonwealth Office, of which the Forced Marriage Unit is a part.

Persons against whom a FMPO may be directed
The orders can be made against named respondents directly concerned in the force/attempts to force.  Further, orders can be made against named respondents who may become involved in ‘other respects’: s62B(2)(b).  Examples given within the legislation of involvement in ‘other respects’ include aiding, abetting counselling, procuring, encouraging or assisting another person to force/attempt to force a person into marriage, or conspiring to do so: s63B(3).

Orders may also be made against ‘other persons who are, or may become, involved in other respects as well as respondents’: s63B(2)(c).  Thus, unusually FMPOs can be directed against unnamed persons.  A blanket order could for example be made prohibiting any person from facilitating arrangements for the marriage of the PTBP. 

Powers of arrest
A power of arrest may be attached to the FMPO.  In determining whether a power of arrest should apply, the court will distinguish between orders made inter partes and ex parte: see s63H for details.  For any power of arrest to be attached, the court must consider that the respondent has used or threatened violence against the PTBP or otherwise in connection with the matters being dealt with by the order: s63H(1)(b) and (3)(b). 
 
Who may apply
The PTBP themselves may apply as may any other person with leave of the court: s63(2)(a) and s63C(3).  Orders may also, in certain circumstances, be made of the court’s own motion. 

A third party requiring the Court’s leave must file a Form FL430 (application for leave to apply for a FMPO), setting out the reasons for the application, their connection with the PTBP, their knowledge of the circumstances of the PTBP and their knowledge of the wishes and feelings of the PTBP (the court must consider these latter three matters and all the circumstances in deciding whether to grant leave: s63C(4)).  

Relevant Third Party
In addition however the legislation introduces the concept of the Relevant Third Party (“RTP”) who may apply for a FMPO on behalf of the PTBP without leave of the court: s63C(2)(b).

A RTP is a person specified, or falling within a description of persons specified, by order of the Lord Chancellor: s 63C(7).  Significantly a RTP may apply for a FMPO without the knowledge or consent of the PTBP. 

The Government conducted a consultation to consider the need for RTPs, who should act and what safeguards might be required.  The response to this consultation was published on 13th November 2008: Forced Marriage (Civil Protection) Act 2007 – Relevant Third Party Consultation Paper (MoJ).  It was determined that Local Authorities should be able to act as RTPs for adults and children.  This was subject to firstly ensuring that appropriate safeguards were in place.

Local Authority applicants
On 1st November 2009 a Local Authority is designated as a RTP for the purposes of applying for a FMPO: Family Law Act 1996 (Forced Marriage)(Relevant Third Party) Order 2009, SI 2009/2023.    

Thus from 1st November a Local Authority applying for a FMPO on behalf of a PTBP need not complete the Form FL430.  However the application form itself, FL401A, has been amended.  A Local Authority applicant must still state within the form what they know of the circumstances of the PTBP and their wishes and feelings.  Therefore, whilst a Local Authority will no longer need leave, the court will remain anxious to ensure that the application is in the best interests of the PTBP and is not contrary to their own wishes. 

Local Authority applicants are required to have regard to the statutory guidance referred to at the commencement of this article.

Further, Local Authority Social Care practitioners must have regard to the Multi-Agency Practice Guidelines: Handling Cases of Forced Marriage (June 2009). 

In addition, the Ministry of Justice is currently preparing additional guidelines for Local Authority applicants. These will be available on the Court Service or Ministry of Justice Website when published.

Where applications for FMPOs concern children it is very likely that a Local Authority will also issue applications for public law orders.

The Future
Between implementation of the legislation and the end of August 2009, 64 Forced Marriage Protection Orders were recorded as having been made in the 15 courts designated to hear the applications1. This is in excess of the Ministry of Justice pre-enactment estimate of 50 orders each year. It will be interesting to consider whether the number of applications post 1st November 2009 is impacted in any way by the introduction of Local Authorities as RTPs.

Further, there remains the possibility of the additional voluntary organisations being designated as RTPs in the future. The Response to the Government Consultation outlined an intention to conduct a pilot scheme to consider whether Independent Domestic Violence Advisers (IDVAs) should also be RTPs. A pilot scheme is running from September 2009 until the end of February 2010, with the intention that the findings be published in March next year. A number of IDVAs in 11 of the specialist forced marriage court areas are participating in the pilot. There will be regular feedback as to the cases in which the voluntary agencies have been involved. Information will be collated as to what support is required by victims and this will assist in consideration by the government as to whether IDVAs should be also be made RTPs.

Notes
[1] Principal Registry of the Family Division, Birmingham Family Courts, Blackburn, Bradford and Bristol County Courts, Cardiff Civil Justice Centre, Derby County Court, Leeds Combined Court, Leicester, Luton, Manchester, Middlesbrough, Romford and Willesden County Courts.  Applications may also be issued in the High Court.

Louise is co-author, with Clive Heaton QC and Razia Jogi, of “Forced Marriage: A Special Bulletin”, published by Family Law ISBN: 978 1 84661 167 4 (September 2009) 

Switalskis Solicitors and Zenith Chambers are co-hosting a National Conference on Forced Marriage to be held in Bradford on 23rd November 2009 (for further details contact Hannah Tempest on talks@zenithchambers.co.uk).