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West Sussex County Council & The Chief Constable of Sussex Police v F, M, N, P and T [2018] EWHC 1702 (Fam)

Fact finding in a forced marriage and care case. Williams J considered the different approach required to mandatory orders within a Forced Marriage Protection Order, as opposed to prohibitory orders.

Case concerning N aged 15 (female), P aged 14 (male) and T aged 9 (female). In December 2017 Sussex Police applied without notice to the High Court for a forced marriage protection order ('FMPO') in respect of all three children which was granted including a direction that the respondents (the parents and an aunt) immediately make travel arrangements for N and T to return to the jurisdiction within 48 hours of service of the order. N and T had been taken to Pakistan in August 2016. P was taken into police protection. The girls were returned, albeit 5 days after the order required, and were placed in foster care pursuant to s. 20 Children Act 1989. Care proceedings began, and ICOs were made in respect of each child.

The FMPO and care application came before Williams J for a fact finding. Various special measures were taken in respect of witnesses, including N and P, giving evidence.

The findings sought by the Local Authority are summarised at paragraph 10 of the judgment and included (inter alia) domestic abuse; physical abuse; P moving to the care of his uncle and aunt because the parents were unable to provide appropriate guidance and boundaries for him; N and T being placed by the parents in Pakistan spending a lengthy period separated from their family in the UK and not being returned to the UK until required by the Court; the parents causing N to be engaged to a cousin without her consent whilst in Pakistan and making arrangements for her to marry without her consent, attempting to force her into marriage or failing to protect her from a forced marriage; and the parents and/or family members placing pressure on N and P to not tell the truth and withdraw their allegations.

N gave a retraction interview and said that she wanted to come home from Pakistan and made the allegation that she was engaged in order to get back to England. P also no longer held by allegations he had made, saying he was desperate to secure the return of his sisters from Pakistan.

The Court noted that the language of s.63A Family Law Act 1996 gives a very broad discretion, and that there is no evidential threshold other than that contained within s.63A, still less does it appear that the Court must conclude on the balance of probabilities that the protected person has or will be subjected to a forced marriage. It was clear that the making of an interim ex parte order was a very serious step with potentially very significant consequences for the respondents.

This was a case involving mandatory orders requiring a person to do an act, in this case, requiring the return of children from Pakistan in circumstances where they had been there for 16 months, which was clearly a far more significant matter than protective and prohibitory orders which could not be seriously objected to, purely requiring respondents to refrain from doing things. It clearly involves a positive interference with the family life of the respondents and therefore has article 6 ECHR implications which were not engaged when the Court was simply making prohibitory orders.

Where mandatory orders were sought, whilst the section 63A criteria still apply, the Court must be satisfied on appropriate evidence that the making of such an order was a necessary and proportionate response. Where the order was to bite almost immediately and in circumstances where the respondents would be placed under an obligation carrying potentially penal consequences before they would in practical terms be able to seek legal advice or return the matter to Court, the approach of those applying for the injunction and the Court considering it would necessarily need to be that much more robust.

A very considerable difficulty in this case was the Court's view that all of those who have been able to give a direct account of events which form the foundation of threshold and the forced marriage allegations had not given accounts on which Williams J felt confident in relying. A detailed chronology was appended to the judgment. The findings are set out from paragraph 48 to 57.

As to the allegation of attempted forced marriage and failure to protect N from a forced marriage, the Court considered this aspect of the case had been the most troubling. Williams J concluded that there was a loose commitment for N to perhaps marry in the future, not a formal engagement, which was transmuted by P into an imminent marriage supplemented by risks to himself and sexual abuse added in for extra impact. The central allegation of the forced marriage application did not amount to a forced marriage or any imminent risk of that at all in November/December 2017. In terms of Sir Nicholas Wall's observations about the distinction between consensual arranged marriages and forced marriages involving serious human rights abuses this was far closer to the arranged marriage end of the spectrum but taking the form of a loose commitment not undertaken with N's consent but not with the intention subsequently of her being forced to marry whether she wanted to or not. The nature of the arrangement was such that had it endured to an age when she might legally have married Williams J was satisfied she would have had a say and had she not wished it, it would not have proceeded.

As a result of the constellation of findings that the Court had made on the other matters the Court was satisfied that the threshold was crossed at the relevant time. The combination of all the matters, but in particular the suppression of N's desire to return home, the enforced separation of the siblings and the consequences for them and the parents' complete disregard for the emotional impact upon them against a backdrop where the children's earlier exposure to a toxic domestic atmosphere made them particularly reliant on each other and vulnerable had caused significant harm to the children. That the parents allowed a situation to be created where their children were so desperate that they were prepared to make such serious allegations against their parents illustrated the point of how profoundly the parents were ignoring their children's emotional needs.

Summary by Victoria Flowers, barrister, Field Court Chambers 

For the full text of the judgment click here