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M v B, A and S [2005] EWHC 1681 (Fam)

Grant of injunctive and declaratory relief in an originating application under the Court's inherent jurisdiction and a subsequent claim under CPR Part 8.

M v B, A and S [2005] EWHC 1681 (Fam)

Family Division: Sumner J (28 July 2005)

Summary
Grant of injunctive and declaratory relief in an originating application under the Court's inherent jurisdiction and a subsequent claim under CPR Part 8.

Background
This case concerned S, an adult who it was not disputed lacked the capacity to marry. In November 2003, fearing that S's parents might arrange for her to be married while on holiday in Pakistan, the local authority issued an originating application under the Court's inherent jurisdiction. Kirkwood J granted an interlocutory injunction inter alia forbidding S's parents from taking any steps in respect of any marriage of S without leave and removing or taking any steps to remove S from the jurisdiction without leave.

In July 2004, following an order of Bracewell J, the local authority issued a claim under CPR Part 8 for declarations that S lacked the capacity to make a decision about whether or not she should marry and that it was not S's best interests that she should marry or that she should leave the jurisdiction in view of the risk that her parents might arrange for her to be married in Pakistan. The local authority also sought the continuation of the injunctions granted by Kirkwood J and such other relief as might be appropriate.

When the matter came before Sumner J in April 2005, the local authority further sought that the Court continue to hold S's passport and travel documents and that the parents be prohibited from obtaining any further passport or travel documents for S without leave. In argument, the question arose whether, in proceedings where it was sought to involve the court's inherent jurisdiction, the appropriate procedure was to issue an originating summons under CPR Part 8.

Judgment
Held, granting an injunction, that in appropriate circumstances there is jurisdiction to make an order to restrain those responsible for an adult lacking capacity from entering into a contract of marriage, whether formal or informal, if it is required to protect that adult's best interests.

On the facts, it was highly likely that, if S were taken to Pakistan for a holiday, she would agree to enter into an arranged marriage in accordance with her parents' wish. Such a marriage would be a disaster for S and was plainly against her best interests. An injunction would therefore be granted for S's safety and to prevent serious emotional and psychological harm to her, and to protect her private life under Article 8 of the European Convention on Human Rights.

Where declaratory relief is sought in relation to an adult who lacks capacity under the court's inherent jurisdiction, proceedings should be commenced under CPR Part 8. In such cases the prospect of a substantial dispute of fact is not a bar to such procedure. Interlocutory and final hearings will normally be heard in the Family Division. Where such disputes of fact arise the Court will determine how the respective contentions are to be determined. For this reason it is appropriate in such cases to seek an early date for a directions hearing. This will ensure that the court identifies at an early stage the differences between the parties and the means by which such differences are to be resolved.

Read the full text of the judgment here