Forced Marriage in UK Law

She had gone to the High Commission in Islamabad asking to be rescued from a forced marriage and helped to come to Scotland to live with her half-brother. The High Commission wanted to help her but felt unable to do so without the backing of a court order. Hogg J explained that she thought the circumstances "sufficiently dire and exceptional": para 10. The facts of that case were certainly not such as to require the High Court to assume jurisdiction over the child in question.

The amendment had a legitimate aim: it was "for the protection of the rights and freedoms of others", namely those who might otherwise be forced into marriage. It was "in accordance with the law." It is within this question that an assessment of theamendment's proportionality must be undertaken. In Huang v Secretary of State for the Home Department [2007] 2 AC 167, Lord Bingham suggested, at para 19, that in such a context four questions generally arise, namely:

Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the Secretary of State addressed this imbalance—still less sought to identify the scale of it. On any view it is a sledge-hammer but she has not attempted to indentify the size of the nut. At all events she fails to establish that the interference with the rights of the respondents under article 8 is justified.

There is a further reason for holding the interference disproportionate. Although the means used is an interference with article 8 rights, the object is to interfere with article 12 rights. The aim is to prevent, deter or delay marriage to a person from abroad. A fee fixed at such a level could impair the essence of the right to marry.

That is precisely what I am suggesting should be done here: it is the Secretary of State who has the responsibility for combating forced marriages in the context of immigration and who should be recognised as having access to special sources of knowledge and advice in that regard.

The first is the nature of the relief given by the Act. The person to be protected (A in this case) has for most of the proceedings not sought actively to disturb the order. If, therefore, the view is taken that there is a proper basis for the court's exercise of its jurisdiction under the Act (as the police and Judge Pearce plainly and responsibly did) an order under the Act can properly be made ex parte: – see section 63D of the Family Law Act 1996 as inserted by section 1 of the Act.

However, we are satisfied that the present case does not approach the very high threshold necessary to justify the exercise of the jurisdiction. The situation falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction.