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Forced Marriage: protective measures for children and young people in the family courts and the court of protection – part 2

In the second of two articles concerning the development of the law in relation to forced marriage and the protective remedies available for children and young people, Judith Pepper, barrister of Four Brick Court, examines the remedies available for adults.

Judith Pepper, barrister, Four Brick Court

Judith Pepper, barrister, Four Brick Court

For the first part of Judith Pepper's article, click here.

Inherent jurisdiction – adults
Where a declaration or injunction is sought in respect of an adult under the inherent jurisdiction, the application should be issued in the Family Division.  These applications are not 'family proceedings' and therefore the procedure is governed by the CPR and CPR PD8B, subject to the Practice Directions and guidelines set out in case law.

Where the determination concerns an adult who lacks capacity, whose capacity fluctuates, or whose capacity is in doubt or the incapacity relates to the specific issues to be determined, the application should be issued in the Court of Protection.  The specific Court of Protection Rules and Code of Practice should be followed.

It has been a feature of case law for some time that the High Court inherent jurisdiction exists in relation to vulnerable adults, and is not confined to those lacking capacity.

In the case of Re SA [2005] EWHC 2942 (Fam), Mr. Justice Munby (as he was then) examined the court's inherent jurisdiction in relation to vulnerable adults. It concerned a vulnerable 18-year-old young woman. Whilst she was a child, the court exercised its inherent parens patriae and wardship jurisdictions to protect her from the risk of an unsuitable arranged marriage.  The question was whether the court had jurisdiction to continue that protection for her as an adult.

She was deaf, with no speech, and had profound bilateral sensory neural loss and significant visual loss in one eye.  She communicated by British Sign Language.  A cognitive assessment determined that she had a clear understanding of marriage and of what a sexual relationship was.  She had capacity to understand the general concept of marriage in accordance with the test as laid down in Sheffield City Council v E [2004] EWHC 2808 (Fam).  She did not have the capacity to litigate. 

Although she wished to travel to Pakistan for an arranged marriage, she did not wish to live there and would be distressed where she placed outside of the UK, potentially surrounded by people who were not able to communicate with her in her first language BSL. 

Mr. Justice Munby (as he was then) went through the court's 'protective jurisdiction' in relation to vulnerable adults.  He considered that the inherent jurisdiction was no longer to be understood to be confined to cases where a vulnerable adult was disabled by mental incapacity to the decision in hand, to cases where an adult, although not mentally in capacitated, was unable to communicate their decision. Therefore the jurisdiction extended to a wider class of vulnerable adults, albeit he felt it unwise to attempt to define who might fall into this group.

He pointed out (in paragraph 84) that the court exercises a jurisdiction in relation 'incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children'.  He noted there was little difference between the types of orders that could be made in the two jurisdictions, the main one being that the court cannot make an adult a ward of court.  However, apart from that distinction, he considered there were few limits if any to the court's powers when exercising the inherent jurisdiction in relation to adults, including appropriate injunctive relief.

He set out the range of orders that could be made, which included tipstaff orders such as location, collection and passport orders, as well as an All Ports Alert order. He referred to others orders the court can make, such as an order enabling third parties to take protective steps in relation to an incapacitated adult, with reference to the case of Re SK [2004] EWHC 3202 (Fam). In that case Singer J made an order providing for SK to be interviewed alone by an officer of the British High Commission in Dhaka to establish SK's true wishes in an environment where it was hoped she could express them.

As Munby J pointed out (in paragraph 106), in the case of the wardship jurisdiction as in the case of the inherent jurisdiction in relation to adults, anyone with a genuine and legitimate interest in the welfare of the individual in question has locus standi to bring proceedings. He noted that often the vulnerable will require protection from those closest to them.

Inherent jurisdiction and FMPO in respect of a dual citizen absent from the UK
In the case of Amina Al-Jeffery –and- Mohammed Al-Jeffery (Vulnerable adult: British citizen) [2016] EWHC 2151 (Fam), Mr. Justice Holman considered an application for an FMPO and an application for the exercise of the inherent jurisdiction in respect of a dual citizen of the UK and Saudi Arabia but who had not lived in the UK for some years.  She asserted serious ill-treatment from her father, being kept under constraint in his flat and being prevented from leaving the country. At the end of the hearing, on behalf of Amina,  it was accepted that there was no current justification for a forced marriage protection order on the evidence.  Therefore Mr. Justice Holman did not consider it necessary to express any opinion on the territorial reach of the provisions of Part 4A of the Family Law Act 1996 inserted by the Forced Marriage (Civil Protection) Act 2007.  Mr. Justice Holman stressed the extra-territorial reach of the criminal offence of forced marriage, within s121 of the Anti-social Behaviour, Crime and Policing Act 2014.

However, it is worth noting in this judgment that Mr. Justice Holman did consider in respect of the inherent jurisdiction:

a. Subject matter jurisdiction; and

b. Territorial jurisdiction.

The court referred to Re SA and DL v A Local Authority [2012] EWCA Civ 253 – and determined that if the facts were the same but occurring in England and Wales, the inherent jurisdiction for the protection of vulnerable adults was engaged and the court had a very wide range of powers.

Mr. Justice Holman referred to the recent cases of Re A (Jurisdiction: return of child) [2013] UKSC 60 and Re B (A child) (Habitual residence: inherent jurisdiction) [2016] UKSC 4, in which the Supreme Court has twice affirmed that British nationality alone of a child is a sufficient basis for exercising the inherent or parens patriae jurisdiction in relation to children, noting that that jurisdiction based upon nationality alone should be exercised with great caution. He concluded that there was an inherent jurisdiction to protect vulnerable adults who are habitually resident abroad, but are British citizens; and that on the facts alleged by Amina, which included constraint and ill-treatment, jurisdiction was engaged. Therefore he determined both subject matter jurisdiction and territorial jurisdiction in favour of making such orders as he could to provide Amina. The court made mandatory orders against Amina's father including that he must permit and facilitate her return by a certain date and pay her airfare.

It would be interesting to see how the court would determine a forced marriage case involving a British or dual British citizen outside the jurisdiction.  There are clearly grounds provided in the above case that could support an argument that such orders could be made.

Capacity to consent and the Mental Capacity Act 2005
There is no legal basis on which someone can agree to marriage, civil partnerships or sexual relations on behalf of a person who lacks the capacity to make these decisions independently. However, families sometimes do believe they have the "right" to make decisions regarding marriage on behalf of their relative.

Options prior to the marriage ceremony in respect of adults who lack capacity to marry are:

a Forced marriage protection order

b An application to the Court of Protection for declaratory relief and an injunction under the MCA 2005 where a person lacks capacity to marry. The court can grant injunction(s) to restrain family members from arranging a marriage for them or prevent them being taken overseas for the purpose of a marriage – s48 MCA 2005 and r82 of COP rules 2007.

If an adult with suspected learning disabilities has left the country and it is not known whether they lack the capacity to consent to marriage, it is recommended that a FMPO is taken out to ensure they are returned. Following that, a capacity assessment will need to be carried out to determine their capacity to consent to marriage.

Interim relief
The Court of Protection has the power to make interim orders and directions under s48 of the MCA 2005. 

In the case of Re F (Mental Capacity: Interim Jurisdiction) [2009] EWHC B30 (Fam) HHJ Marshall QC considered the correct test to be applied in order for the court to assume jurisdiction to make interim orders and directions under s 48 of the Mental Capacity Act 2005.

At paragraph 44 she addressed the proper test for the engagement of s48:

"[44] The proper test for the engagement of s 48 in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his capacity can be made. Such action can include not only taking immediate safeguarding steps (which may be positive or negative) with regard to P's affairs or life decisions, but it can also include giving directions to enable evidence to resolve the issue of capacity to be obtained quickly. Exactly what direction may be appropriate will depend on the individual facts of the case, the circumstances of P, and the momentousness of the urgent decisions in question, balanced against the principle that P's right to autonomy of decision-making for himself is to be restricted as little as is consistent with his best interests. Thus, where capacity itself is in issue, it may well be the case that the only proper direction in the first place should be as to obtaining appropriate specialist evidence to enable that issue to be reliably determined."

The test therefore is not too dissimilar from the test applied in care proceedings for obtaining an interim care order, in that there must be 'reasonable grounds' for believing that the threshold criteria are met (s38(2) and s31(2)).

Capacity to marry
The case of LB of Southwark v KA (Capacity to Marry) [2016] EWHC 661 (Fam) concerned whether a 29-year-old learning disabled man, KA, lacked the capacity to make decisions in respect of sexual relations and marriage. 

KA was from a Bangladeshi family who wanted him to marry. He had moderate learning disabilities and Court of Protection proceedings were commenced by way of a Forced Marriage Protection Order, obtained by the local authority after they became concerned the family was not engaging with the social worker's concerns. Parker J reminded the family that it is a criminal offence to force marriage on anyone, which includes making arrangements to marry in respect of someone who is unable to consent because of incapacity.

In this case, the court heard evidence from a consultant psychologist who had concluded that KA lacked capacity to have sexual relations and marry. Parker J also determined KA did not have capacity to litigate.

The principles of capacity as set out in the Mental Capacity Act (MCA) 2005 were restated:

Parker J considered recent authorities, in particular the case of IM v LM [2014] EWCA Civ 37 where it had been expressed that the court must be careful not to add further relevant information to the requirement for understanding, as it is likely to involve "unnecessary paternalism and derogation from personal autonomy".

At paragraph 39 she stressed the need to draw a clear distinction between capacity and welfare. She went on to state that the issue of marriage in this case hung very much on KA's capacity to enter into sexual relations, and the two are interlinked. She considered the core relevant information in respect of sexual relations, and then turned to the test for capacity to marry, which she set out at paragraph 76:

"76. The test for capacity to marry is also a simple one:

a) Marriage is status specific not person specific.

b) The wisdom of the marriage is irrelevant.

c) P must understand the broad nature of the marriage contract.

d) P must understand the duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other.

e) The essence of marriage is for two people to live together and to love one another.

f) P must not lack capacity to enter into sexual relations."

Having made it clear the decision is about capacity and not welfare, she did not take into account aspects of KA's decision making which affected the consequence of his decision making, as long as they did not affect the decision making process itself.  She did not consider it relevant to his understanding of marriage that he did not understand a wife could need to obtain entry clearance. It was also not relevant that he did not understand financial remedy law and procedure, with Parker J stating that the fact he might lack litigation capacity in this regard did not mean that he lacked capacity to marry.

Parker J concluded her decision by stating at paragraph 81:

"81. I do not know whether a marriage will truly bring happiness to KA.  His disabilities will provide challenges for any wife, and they will be different for a wife who has capacity from one who lacks it.  A marriage might lead to distress, conflict and misery for KA and his family, as opposed to enhancement of his life and of his personal autonomy.  But it is not for me to weigh up the relative chances of finding a wife who is prepared to love and cherish KA with all his needs against that of finding one who is unequal to the task."

The field of law concerning vulnerable adults has progressed considerably over the years, as it has for adults who lack capacity.  However, in as much as the courts have utilised the weight of the inherent jurisdiction to protect adults at risk of forced marriage, at the same time the courts have recognised the delicate balance between protection and personal autonomy.  In respect of FMPOs, it remains to be seen how the courts would respond to an application made by a British citizen outside the jurisdiction.

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