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KBH & Ors (Forced Marriage Protection Order - Persons To Be Protected Permanently Resident Abroad) [2018] EWHC 2611 (Fam)

Judgment of Holman J declining to make any order (including a FMPO) because he was not satisfied that there was a properly constituted set of proceedings.

The case concerned four siblings of Somali heritage: KBH (a male aged 19), BBH (a male aged 17½), MBH (a female aged 15½), and an unnamed sibling aged about 10.

KBH, BBH, and MBH are British citizens and possibly also Somali citizens. They lived in this jurisdiction until they lawfully returned to Somalia with their mother over 10 years ago. The siblings and their mother are now permanently resident in Somalia. The unnamed sibling was born after the family's return to Somalia and appears never to have lived in this jurisdiction.

An elder sister of the siblings does live in this jurisdiction. Earlier in 2018, she contacted the Forced Marriage Unit of the FCO, expressing concerns that KBH and possibly others of the siblings were about to be forced to marry by their mother in Somalia.

A maternal aunt of the siblings is also resident here. She supplied addresses and contact telephone numbers in Somalia that she said might be of assistance in locating the siblings. However, she said that she had had no contact with her sister, the children's mother, for many years.

The matter came before the court earlier this year, when forced marriage prevention orders were sought nominally by the siblings but in reality by solicitors acting at the prompting of the Forced Marriage Unit. Those orders were made and then renewed periodically until September 2018 when the matter was reconsidered by Holman J.

Shortly before the hearing before Holman J, the solicitors nominally instructed by the siblings were able to speak to the mother (or someone claiming to be her) in Somalia using the telephone numbers that the siblings' aunt had provided. The solicitors told the mother about the hearing before Holman J and she indicated that she would happily attend by telephone if a Somali interpreter was available to assist her.

On the day of the hearing, repeated attempts were made to contact the mother in Somalia on the telephone numbers that had been provided previously. Unfortunately, all such attempts proved unsuccessful.

Counsel instructed by the solicitors in the case invited the court to make forced marriage prevention orders in relation to all four siblings. Counsel further invited the court to make BBH, MBH, and the unnamed sibling wards of court and to direct that the mother make them available for an independent welfare check. Because the UK has no diplomatic presence in Somalia, that would involve a 14-hour car journey to Addis Ababa, where the nearest British diplomatic mission is located. Nobody at the hearing knew whether any of the siblings had a valid passport or other travel documents.

Holman J distinguished his decision in Al-Jeffery v. Al-Jeffery (Vulnerable Adult; British Citizen) [2016] EWHC 2151 from this case, pointing out that in Al-Jeffery there had been direct contact between solicitors in this country and the young person involved. Furthermore, that young person had been living in this jurisdiction until shortly before the application was made.

Here, there had been no contact either direct or indirect with any of the siblings. His Lordship noted that KBH was an adult and there was nothing before him to suggest that KBH did not have full capacity. In the case of BBH and MBH, His Lordship thought it likely that both had sufficient capacity to make decisions about instructing solicitors if they wished to do so.

In His Lordship's view, if the Forced Marriage Unit was (as was suggested in court) driving these applications, then it was more appropriate for the unit to bring the applications rather than leaving that to a litigation friend about whom the siblings had absolutely no knowledge.

Although Holman J accepted that everyone had acted from the best of motives, he noted that the solicitors had no instructions from the siblings. In the circumstances,  His Lordship refused to make any orders at all and declined to extend or renew the existing orders. Holman J did, however, note that the FCO could apply for relevant orders should it wish to do so.

Summary by Graeme Harrison, barrister, St John's Chambers, Bristol.

Neutral Citation Number: [2018] EWHC 2611 (Fam)
Case Nos. FD18F05014, FD18P00472


Royal Courts of Justice

Date: Friday, 28 September 2018


(Sitting throughout in public)

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(Forced marriage protection order; persons to be protected permanently resident abroad)

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MS M. CHAUDHRY (instructed by Dawson Cornwell) appeared on behalf of the applicants.
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J U D G M E N T (as approved by the judge)

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1. There is listed before me this afternoon an unusual matter.  Earlier this year a very well-known and distinguished solicitor, Miss Anne-Marie Hutchinson, O.B.E, who is a partner in the equally well-known firm of Dawson Cornwell Solicitors, issued proceedings essentially for forced marriage protection orders.  In those proceedings three young people are named as the applicants. They are KBH, who is a male, now aged 19; BBH, also a male, now aged   17 ½; and MBH, a female, now aged 15 ½.  As I understand it, those three persons are all British citizens.  They lived at one stage here in England and Wales, but have lived with their mother lawfully in Somalia, of which they are probably also citizens, for at least the last ten years.  So far as I am aware, none of those three people, nor, indeed, their mother, have set foot in the United Kingdom for at least the last ten years.

2. They do have an elder sister who does live here in England, and it was that sister who put in train the present proceedings.  She contacted the Forced Marriage Unit of the Foreign and Commonwealth Office and said that she was concerned that at least one of her younger siblings, namely KBH, was about to be forced into marriage by his mother in Somalia.  As I understand it, the Forced Marriage Unit then contacted Dawson Cornwell and these proceedings have ensued.  Several times now during last summer co-equal judges of mine sitting in the High Court have made forced marriage protection orders.  The last such order was expressly stated to expire at the time of the present hearing today.  Despite various efforts, nobody has been able to locate this family in Somalia, although a sister of the mother (which sister herself lives in London) has recently given such information as she can with regard to their whereabouts.  She indicates a town or area in Somalia in which they may be living and gives two telephone numbers, but goes on to say that she herself has not had any contact with her sister (the mother) or the children for many years. 

3. Information with regard to these proceedings did apparently reach the mother in Somalia two or three weeks ago from the elder daughter who lives here in England, and as a result the mother, or a person purporting to be the mother, actually telephoned Dawson Cornwell yesterday.  I have an attendance note by Mrs Wendy Ramus of that call.  The mother was told that there was a hearing here today, and she indicated that she would be happy to participate by telephone link if a Somali interpreter was arranged.  I have been told, however, that she had an entirely lucid and articulate conversation with Mrs Ramus without the need for any interpreter.  During this afternoon a number of attempts have been made to telephone the mother on the telephone number from which she rang yesterday (which coincides with one of telephone numbers given by her sister recently), but they have been unsuccessful.  Either there is simply no ringing sound or response at all, or a recorded message states that the number is unavailable.

4. I have been asked this afternoon by Ms Mehvish Chaudhry, who appears nominally on behalf of the three applicants, but instructed by Dawson Cornwell, to renew or extend the existing forced marriage protection orders.  I have been further asked to make a forced marriage protection order in relation to a younger child, who was apparently born in October 2008 and is now aged nearly ten, and I have been asked to make BBH, MBH and that younger child wards of court.  I could not, of course, make KBH, who is now adult, a ward of court.  Finally, I have been asked to direct the mother to make these various people available for an independent welfare check or interview at the British Embassy in Addis Ababa.  I was told that there is apparently no British Embassy or consular representation within Somalia itself, but obviously any order that requires a person to take children out of the country in which they are living to another country, namely Ethiopia, raises significant issues.  I do not know, for example, whether any of these people actually have current passports.  I have been told by Ms Chaudhry, who researched it on her laptop just now, that the driving time between the area in which this family may be living in Somalia and Addis Ababa is about  14 hours.  I have no idea whether the family have any sort of vehicle.  I have no idea whether their circumstances are such that they could reasonably be expected to undertake journeys of 14 hours' driving time each way.

5. But it seems to me that in any event this whole set of proceedings raises much more profound considerations.  It is perfectly true that I myself explained at considerable length, and exercised, a jurisdiction based upon British nationality alone in the case of Al-Jeffery v Al-Jeffery (Vulnerable Adult; British Citizen) [2016] EWHC 2151.  Even in that case, drawing upon observations by the Supreme Court, I stressed that a jurisdiction based on nationality alone requires to be exercised with caution and circumspection.  But on the facts and in the circumstances of that case the vulnerable adult concerned had relatively recently been living here in England and Wales, where she had been brought up throughout her childhood. Further, it was she herself who had made contact with Miss Anne-Marie Hutchinson and Dawson Cornwell, and Miss Hutchinson was receiving instructions directly from the applicant for whom she was constituted the litigation friend.  In the present case, as I have said, none of these people have lived in the United Kingdom at all for at least ten years. The youngest one, in relation to whom I have been asked today to make some order, was born in Somalia and has never, so far as I know, set foot in the United Kingdom, although it may be that she is entitled to British citizenship, because her mother was a British citizen at the time of her birth.

6. Accordingly, in the present case, unlike the Al-Jeffery case, Miss Hutchinson and Dawson Cornwell, acting, of course, in the utmost good faith, are in fact acting without any instructions at all from, or on behalf of, any of the people who have been named as applicants.  There has simply been no communication whatsoever, although I observe that the eldest of them is adult and, I will assume, of full capacity, and the next two, being aged  17 ½ and 15 ½ are, I assume, of ample capacity directly to instruct a lawyer if he or she so wished. 

7. So this is an application that, on analysis, is being made entirely altruistically on no instructions whatsoever.  Ms Chaudhry said to me that it is being supported in some way by the Forced Marriage Unit, which is itself located within the Foreign and Commonwealth Office.  It may be – I do not know – that it is the view of Her Majesty's Government, through the Foreign and Commonwealth Office, that the British Government should itself proactively take steps to protect anyone who is a British citizen, wherever they may be, from forced marriage, even if their current and recent connection with the United Kingdom is that of citizenship alone.  But if that is so, it seems to me that the proper applicant in a case such as this should not be the people concerned acting through, or supposedly acting through, a litigation friend of whom they have absolutely no knowledge.  Rather, it should be Her Majesty's Government itself acting, I presume, through the Foreign and Commonwealth Office and more specifically the Forced Marriage Protection Unit. 

8. So I decline to make any order of any kind today, because I am not in fact satisfied that currently there is a properly constituted set of proceedings at all.  It seems to me that I have got no more than a solicitor altruistically making an application with no basis in any instructions.  I decline to make any order at all, and I will not extend or renew the existing orders.  But this outcome and, indeed, this judgment (which must be transcribed) must be drawn to the attention of the Forced Marriage Unit, and my order will make express on its face that if Her Majesty's Government, through the Foreign and Commonwealth Office, wishes to apply for an order in protection of any of the present applicants on the basis of their being British citizens, it may do so.  I do not, of course, forecast or speculate what the outcome might be. 

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This transcript has been approved by the Judge (subject to Judge's approval)