Forced Marriage in UK Law

I merely observe that cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world. I add that the use of the jurisdiction in cases where the risk to a child is of harm of the type that would engage Articles 2 or 3 of the Convention – risk to life or risk of degrading or inhuman treatment – is surely unproblematic.

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 made the girl a ward of court and ordered that she be brought to this country. The half-brother was assessed as offering a suitable home and in fact she went to him.

The first is the nature of the relief given by the Act. It is protective – quasi injunctive – and does not depend upon a complex factual matrix. The person to be protected (A in this case) has for most of the proceedings not sought actively to disturb the order.

However, in our judgment that state of affairs is not by itself enough to justify the intervention of the English court. The fact that local judicial processes are, to our perception, inadequate does not in any way lessen the difficulties about seeking to invoke the inherent jurisdiction when a child is abroad. The situation falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction.

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:

I would, in conclusion, acknowledge that the amendment is rationally connected to the objective of deterring forced marriages. So the Secretary of State provides a satisfactory answer to question (b) set out in para 45 above. 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, as I say, information which if true (and that of course is as yet untested) would lead me to believe that she may be being kept by relatives or friends of relatives and family in Bangladesh contrary to her will, and that her anticipated return to this country (the expected date for which has been seriously delayed) may be being frustrated as part of an attempt to marry her forcibly.