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Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190

The Family Court considers Forced Marriage Protection Orders ['FMPO'] made under Family Law Act 1996, (s 63A) where the subject of the order is an adult who does not lack mental capacity and Passport Orders as part of a FMPO.

The key facts are as follows:

- K is a single woman now aged 35

- She does not lack capacity

- The police first applied for and obtained (without notice) a forced marriage protection order ("FMPO") in June 2015.  They relied on allegations made by K to the police that her family wanted her to marry against her will and that they had threatened to murder her if not. A third party or third parties had raised concerns over a number of months prior to K's allegations

- By the time of the fully contested hearing in January 2016 K had withdrawn her allegations but the judge concluded that K continued to require the court's protection, including that her passport was to be held by the police and that various respondents were forbidden from applying for a new passport or any travel documentation for K from the UK Passport Office or any other foreign passport agency

- Shortly after K left the family home and alleged that one of the respondents had assaulted her, although this allegation was also withdrawn

- Since May 2016 she has lived separately from her family

- After K's mother died she applied to discharge the order but the application could not be heard in time.

- There was a further hearing in July 2018 and judgment was circulated in August.  The judge proposed that K be given time to consider if she wished other steps to be put in place to safeguard her

- At the hearing in December 2018 K put forward no such options and the judge refused her application to discharge the FMPO

The issues on appeal:

- Does the court have jurisdiction, and, if so, how should that jurisdiction be exercised, where the individual said to require protection is someone with full capacity who opposes the FMPO

- Can the family court, as part of a FMPO, require a passport to be removed and held by the authorities, and if so whether that can be indefinite

- The approach to be taken when balancing competing rights: the Article 3 right to be protected against inhuman or degrading treatment and the Article 8 right to respect for private and family life (including the right to travel)

The decision:

- The Court of Appeal (Sir Andrew McFarlane P, LJ Jackson and LJ Haddon-Cave) highlighted that applications for a FMPO should be considered in 4 stages:

(1) Establishing the underlying facts, with the burden of proof ordinarily resting on the person asserting the facts that are said to justify the making of a FMPO.  This will include determining any disputed facts at an on notice hearing.

(2) Determining whether there is a need to protect a person from being forced into a marriage or from an attempt to be forced into a marriage or to be protected having been forced into a marriage

(3) Assessing the risks and protective factors which exist.  The court may be assisted by drawing up a balance sheet.  In particular, the court must determine whether the facts establish a real and immediate risk of the subject of the application suffering inhuman or degrading treatment sufficient to cross the Article 3 threshold

(4) If so, balancing the Article 3 and Article 8 rights, and within Article 8, respect for the subject of the application's autonomy. In assessing the duration of a FMPO the court should bear in mind that family circumstances change and it is unlikely that in all but the most serious and clear cases that the court will be able to see far enough into the future to make an open-ended order

- Courts can and, where appropriate, should make FMPOs to protect capacitous adults.

- The wishes and feelings of the subject are relevant but they are assessed as part of the subject's wellbeing: in short, the court can make an order protecting a person from themselves.  The court should give adequate reasons for such a course

- An open-ended passport order should only be imposed in the most exceptional cases

The appeal was allowed to the extent that a review was fixed for 2022, as a review after 4 years was appropriate given the lack of change between the two court hearings (2016 and 2018)

Practice guidance:
It was noted that when handing down the 2016 judgment the Circuit Judge tempered what was said in terms of risks of honour violence due to the presence of family members (respondents) in court.  This meant that an analysis of the 2016 decision was hampered. In the future a written judgment in respect of findings might be appropriate in simi

Summary by Julia Belyavin, barrister, St John's Chambers.

You can read the full judgment of K (Forced Marriage: Passport Order) (Rev 2) [2020] EWCA Civ 190 on BAILII