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Forced Marriage: protective measures for children and young people in the family courts and the court of protection – part 1

Judith Pepper, barrister of 4 Brick Court, examines in the first of two articles the development of the law in relation to forced marriage and the protective remedies available for children and young people, focusing on the protective measures available by utilising the inherent jurisdiction of the court.

Judith Pepper, barrister, Four Brick Court

Judith Pepper
, barrister, Four Brick Court

The development of the law in relation to forced marriage
Until relatively recently, forced marriage was not a specific criminal offence nor was there such a measure as a Forced Marriage Protection Order in the civil courts.

Forced marriage was dealt with in the criminal law by way of offences such as abduction and offences of violence.  The principle aim of the law relating to abduction was to protect young and unmarried girls from sexual and financial predators. The law was paternalistic, the requirement being that a girl should be taken out of the possession of her parent or guardian against their will.  The idea of parental possession was fundamental to the offences, and whether the girl consented to go was irrelevant.

In England and Wales a child under 18 but over the age of 16, not being a widow or widower, may marry with the consent of each parent with parental responsibility.

In August 1999 Home Office Minister for Community Relations Mike O'Brien MP established a working group to investigate the problem of forced marriage in England and Wales. The Home Office published the report in June 2000,A Choice by Right: The Report of the Working Group on Forced Marriage. The working group did not recommend any legislation. It set out guiding principles, which included a multi-agency approach. 

The Forced Marriage Unit (FMU), a joint Foreign and Commonwealth Office and Home Office unit, was set up in January 2005 to lead on the Government's forced marriage policy, outreach and casework. It operates both inside the UK, where support is provided to any individual, and overseas, where consular assistance is provided to British nationals, including dual nationals.The Forced Marriage (Civil Protection) Act 2007 came into force on 25 November 2008.  Its aim was to provide civil remedies for those faced with forced marriage. 

It was hoped that the approach of the Act, in using civil, rather than criminal, law provisions would encourage victims to seek protection because it would not involve reporting family members to the police. 

Forced Marriage Protection Orders
Part 4A was inserted in to the Family Law Act 1996.  Section 63A contains a general provision to make forced marriage protection orders (FMPO). A person is forced into marriage if they are forced by another person to enter into that marriage without having given their free and full consent.  "Force" is defined to include threats or other psychological means and may be directed against someone other than the victim.

In exercising its jurisdiction, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected (s63A(2)) and must have regard to the victim's wishes and feelings, as far as it is possible to ascertain them (s63A(3)). 

Where an emergency application is made without notice, the application should be allocated to the first available judge of the Family Court.

Local authorities are relevant third parties in respect of children and adults to make applications. They may apply without seeking the leave of the court and without the consent or knowledge of the potential victim.

The court can make an application in any other family proceedings before the court (s63c(6)) if the court considers a forced marriage protection order should be made to protect a person (whether or not a party to the current proceedings); and if a person who would be a respondent to any such proceedings for a forced marriage protection order is a party to the current proceedings.

Part 4A of the Family Law Act 1996 does not affect any other protection or assistance available to a person who is or may be forced or attempted to be forced into a marriage (s63(R)).  In particular, it does not affect the inherent jurisdiction of the High Court, or any protection or assistance under the Children Act 1989.

The evidence relied upon by the application may include information that was shared in a multi-agency risk assessment conference (MARAC) which is confidential.

The perpetrator may wish to seek disclosure of the information by making an application under FPR 2010, r21.2.  The FJC Guidance MARACs and Disclosure into Court Proceedings should be followed.

Three key principles underpin this guidance –

a. A MARAC is not a legal entity and therefore the owner of information shared at a MARAC is the original supplying agency;

b. MARACs should only be required to disclose information by an order of the court;

c. Any request for information must be an informed request setting out the nature of the information sought, i.e. there must be no 'fishing expedition'.

The terms of a FMPO
The FMPO may contain any terms the court considers appropriate, including prohibitions, restrictions or specific requirements and can relate to conduct outside of England and Wales.  The order may be directed either to named respondents in a primary role forcing or attempting to force a person into marriage or to other named respondents in a secondary role, for example, aiding and abetting (s63B(2)).

The court has a wide discretion in relation to the terms it may include.  It has jurisdiction to make orders which relate to conduct within and outside the jurisdiction and any other orders which may be appropriate to protect the potential victim.

The order may be directed at a wide range of persons whose identity may not be known. It reflects the High Court's power under its inherent jurisdiction and extends this jurisdiction to the judge of the Family Court (district and circuit judge level who are so authorised) in which the application is issued. It will also include the CFC.  There may be cases with a foreign jurisdiction with the involvement of the Foreign and Commonwealth Office and the International Family Justice Office when it would be more appropriate for the proceedings to be in the High Court.

FMPOs can be made ex parte (s63(D)).  Orders made without notice must be limited in time, give a return date and contain a provision that the respondent has the right to apply to the court to have the terms of the order varied or revoked. 

The court can accept an undertaking instead of making an order (s63(E)).

There are template orders.

Criminalisation and the effect on FMPOs
The Anti-social behaviour, Crime and Policing Act 2014, Part 10, makes forced marriage and the breach of an FMPO criminal offences.  Breach of an FMPO is punishable in the Crown Court by 5 years' imprisonment and/or a fine.  In the magistrates' court, the maximum imprisonment would be 6 months. The criminal offence of forcing someone to marry can result in a sentence of up to 7 years' imprisonment.

Civil courts no longer need to attach a power of arrest to an FMPO.  The police will now be able to arrest for breach of an FMPO without the need for the courts to have attached a power of arrest to the order, or for the victim to apply to the civil court for an arrest warrant.

If the CPS decides not to prosecute, it will still be open to enforce the breach by issuing proceedings for contempt of court and applying for an arrest warrant for breach of the FMPO in the civil court. Therefore it is essential to ensure the FMPO has a penal notice warning the defendant of the consequences of not complying with the order. 

The number of Forced Marriage Protection Order applications: Family Court Statistics Quarterly, England and Wales, October to December 2017: Forced Marriage Protection Orders
The number of applications and orders made for Forced Marriage Protection Orders (FMPOs) is very small. Numbers fluctuate each quarter but overall there has been a general upward trend since their introduction in November 2008. In October to December 2017 (the most recent period for which statistics are available), there were 65 applications and 59 orders made. Of the applications received since November 2008, 68% of the applicants were aged 17 and under, compared to 30% aged over 17.

Multi-agency Practice Guidance
The Multi-agency practice guidelines: Handling cases of Forced Marriage, June 2014, HM Government, provide advice and support to front life practitioners who have responsibilities to safeguard children and protect adults from the abuses associated with forced marriage.

Inherent jurisdiction and Court of Protection

Wardship is one aspect of the court's inherent jurisdiction. Once a young person has left the country, one course of action is to seek the return of the young person to the jurisdiction of England and Wales by making them a ward of court, in addition to taking out a FMPO.

Any interested party, including the young person him or herself, a private individual or the Children and Family Court Advisory Support Service (CAFCASS/CAFCASS CYMRU) legal services can apply to have a young person up to the age of 18 made a ward of court.

An application for wardship is made to the High Court Family Division, and may be made by a local authority, if it has permission under s100 Children Act 1989. The High Court has extensive experience of forced marriage cases and of dealing with them quickly. Its orders in the inherent jurisdiction and under wardship have great influence in foreign states.

Case law providing examples of where wardship has been used
Wardship powers were used in case of Re KR (Abduction: Forcible Removal by Parents) [1999] 2 FLR 542 to protect a young girl from a forced marriage overseas, where she was being held against her will, and to facilitate her safe return to the UK.  This was obviously prior to the law changing in respect of FMPOs. In this case, the police helped to return KR to the parents' home. The parents booked tickets to India, changing their arrangements at the last minute to travel via France when they learned from the police that their plans were known. The parents left KR in the custody of a paternal aunt in a village in the Punjab, planning to organise an arranged marriage for their daughter. The elder daughter instituted wardship proceedings after receiving a letter from KR pleading for help.

Singer J determined that there was a need for policies to enable children under such pressures to seek help, and local authorities should consider, if there were no one available to take wardship proceedings, whether the threat to the child might justify care proceedings.

Radicalisation and forced marriage
The case of Re Z [2015] EWHC 2350 (Fam) utilised wardship in these circumstances. It concerned an ex parte application with Z who was 17 years of age and was a young female of Somali origin. Her personal safety had been of great concern to the Counter Terrorism Intelligence Unit for some time. The specific concern was that she appeared to have been radicalised and intended to try to travel to Syria. There had been two occasions in the past when she made determined efforts. Police were contacted by a man who said he was a cousin, there was a family wedding and that Z wanted to attend.  That led officers to speak to Z's mother, who made an application to the police for the return of Z's passport.  The police wrongly took the view they were constrained to return the passport. They were not.

Hayden J pointed out that an immediate telephone application could have been made seeking to invoke the inherent jurisdiction of the High court and wardship. There were also obvious powers under s7 of the Terrorism Act.  Enquiries revealed the young woman was booked on a flight to Copenhagen with other members of her family, and that she might have been intending to travel to an ISIS country and that she might herself have been the subject of a planned, arranged or even forced marriage.

The court had no hesitation in granting the ex parte application made by the local authority to ward Z, and secondly to grant a passport seizure order. 

Inherent jurisdiction
The inherent jurisdiction extends to both children and adults. There will be cases where a care order is not appropriate, or available if the young person has turned 17. Where there is a fear that a child or young person may be taken abroad for the purpose of a forced marriage, an order for the surrender of their passport may be made as well as an order that the child or young person may not leave the jurisdiction without the court's permission.

In respect of children, applications for a declaration and injunction under the inherent jurisdiction of the court are treated as 'family proceedings' when they relate to a child, as they are business 'assigned to the Family Division'.

The jurisdiction in respect of children is only one facet of the High Court's inherent jurisdiction. It is not synonymous with wardship.  The jurisdiction exists independently from wardship and is exercisable to protect the interests or, or for the benefit of, a child who is or is not a ward.

In relation to adults who lack capacity, this should be dealt with under the Mental Capacity Act 2005 in the Court of Protection (FPR 2010, PD12A, para 4.4).

The inherent jurisdiction may still be invoked in cases of vulnerable adults (for example SA (Vulnerable Adults with Capacity: Marriage) [2006] 1 FLR 867; Al Jeffery v Al-Jeffery (Vulnerable Adult: British Citizen) [2016] EWHC 2151 (Fam)).

The wide reach of the Court's power under the inherent jurisdiction
The court can make a wide range of orders for the child's protection including:

a. Orders to restrain publicity

b. Orders to prevent undesirable association

c. Orders to protect abducted children, or children where the case has another substantial element

d. Orders for the return of children to and from another state

e. Tagging order provided the person to be tagged consents – for example where tagging was considered as a protective measure to prevent the disappearance or removal of an abducted child from England and Wales (see  Re A (Family Proceedings: Electronic Tagging) [2009] EWHC 710 (Fam), this case provides some guidance to assist practitioners and a specimen order is included).

f. To make orders providing for immediate recognition and enforcement of a foreign order pending application under FPR 2010, Part 31.

The court's powers may exceed those of parents including overriding their decisions and those of Gillick competent children.

The law has adapted considerably in recognising the harm caused by forced marriage over the past decade. Making full use of Forced Marriage Protection Orders as well as the court's powers under the inherent jurisdiction provides a wide range of protective measures for children and young people. 

Many thanks to James Norman and Jacqui Gilliatt, both of 4 Brick Court, for their assistance

For the second part of this article, click here.