Chief Constable v YK and Others
| Jurisdiction | England & Wales |
| Judgment Date | 06 October 2010 |
| Neutral Citation | [2010] EWHC 2438 (Fam) |
| Court | Family Division |
| Docket Number | Case No: LU09F03718 |
| Date | 06 October 2010 |
[2010] EWHC 2438 (Fam)
Before : Sir Nicholas Wall
President Of The Family Division
Case No: LU09F03718
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Michael Gration (instructed by a Chief Constable) for the 1 st Plaintiff
Henry Setright QC and Teertha Gupta (instructed by Dawson Cornwell) for the 2 nd Plaintiff
YK (1 st Defendant) appeared in person
RB (2 nd Defendant) appeared in person
Ayesha Hasan (instructed by Franklins) for the 3 rd Defendant
Ami Bartholomew (instructed by Nobles) for the 4 th Defendant
Jennifer Barker (instructed by Smith Brown & Sparrow) for the 5 th Defendant
Jonathan Swift QC appeared for the Attorney General
MH (6 th Defendant) appeared in person
Hearing dates: 8th and 9th July 2010
Approved Judgment
Sir Nicholas Wall P:
Introduction
This is a case under the Forced Marriage (Civil Protection) Act 2007 (the Act). I shall set out the relevant terms of the Act in a moment. In summary, however, it is sufficient for the purposes of this introduction to say that the Act adds a new Part IVA to the Family Law Act 1996 and empowers the court to make orders designed to protect a person from being forced into marriage, as well as a person who has been forced into marriage. Such orders, known as Forced Marriage Protection Orders (FMPOs) may be made without the respondent to the order being given notice of the proceedings in which the order is made. The application for such an order may also be made either by the person to be protected or “a relevant third party”.
In the instant case, two sets of proceedings under the Act have been consolidated. Thus the applicant in the primary proceedings is a relevant third party namely a police force (the police) and the person to be protected (A) is the fifth defendant. The applicant in the second set of proceedings is A's former boy friend (C). The first and second defendants in both sets of proceedings are A's parents (the parents) They are in person. The third defendant in the consolidated proceedings is one of A's cousins (the cousin). The fourth defendant in those proceedings is A's prospective bridegroom (B), and the sixth defendant is B's father.
It is of the utmost importance that, for the time being at least, confidentiality is maintained in this case, and I propose throughout to identify the parties by using the anonymised terminology specified in the previous paragraph. At the same time, the case raises points of considerable public interest, and it is right that this judgment should be in the public domain. For reasons which will be apparent, however, nothing must be published which would identify any of the participants.
C's case poses fewer legal problems. C alleges that he has been assaulted by B (together with two other men unknown to C) and that the cousin has also harassed him and threatened to kill him, thereby causing him to flee to Pakistan. He also alleges that during his absence in Pakistan, B's father has threatened his (C's) grandparents. The allegations which he makes – and the relief which he seeks – are both capable of being dealt with in the normal way, subject, of course, to any measures which may be necessary to protect B's whereabouts. This judgment will, accordingly, concentrate on the police's application for a FMPO designed to protect A, and on any application by A to set the FMPO aside.
This judgment has two purposes. The first is to give directions in the case before the court. This includes the important question of whether or not it is appropriate to invite the Attorney-General to appoint special advocates to enable affected parties to deal with information which (inter alios) the police do not wish to be disclosed.
The second purpose of this judgment is to give what more general guidance I can about the way in which the issues arising in forced marriage cases can be addressed.
This is, accordingly, an open judgment designed to be read by all the parties and by the public at large. Certain information will, however, remain “closed”– that is to say it will not be disclosed in this judgment. The reason for the existence of, and the need for “closed” material can be shortly stated. There will be cases both of “honour” violence and forced marriage in which disclosure to all the parties will reveal not merely information but also the source or sources of that information. This, in the wrong hands, could expose the source(s) of that information to violence and, possibly, death. For a graphic illustration of the nature of the violence which can occur (albeit not in a forced marriage context) see the facts of Re B-M (Care Orders) [2009] EWCA Civ 205. [2009] 2 FLR 20.
I do, however, need to make it very clear that in the instant case there has been no substantive hearing, and the court has made no findings of fact. Any allegations which are disclosed in this judgment are, accordingly, just that – they are allegations, and no more.
Nonetheless forced marriage cases are likely to throw up issues which are profound in the extreme. The subject matter itself is highly sensitive. In every case, as it seems to me, a clear distinction needs to be drawn between, on the one hand, forced marriage as a form of domestic violence and a serious abuse of human rights, and, on the other, the concept of the consensual arranged marriage which is rightly perceived as a cultural norm in certain societies and thus wholly acceptable: —see, for example the decision of Singer J in Re SK [2004] EWHC 3202 (Fam), [2005] 2 FLR 230 and that of Munby J (as he then was) in Re K [2005] EWHC 2956 (Fam) [2007] 1 FLR 399.
The legal conundrum potentially thrown up by the instant case (and certainly likely to arise at some point in the future) is one which, potentially, goes to the root of family justice, namely how is it possible to achieve a fair hearing (i.e. comply with ECHR Article 6) if parts of the evidence which it is necessary for parties to know in order to enable them to meet allegations made against them cannot safely be revealed to them on the ground that disclosure of the information or its source is likely to identify the informant (and thus place him or her at risk)?
In a forced marriage case, the problem may, hypothetically, be particularly acute, if either the informant is another member of her family, a boyfriend or a member of his family, the party to be protected herself, or, indeed, any third party close to her. She (the person to be protected) may, once again hypothetically – and I emphasis that word -, be living in the household of those against whom the order is sought.
In this context, it has to be remembered that proceedings under the Act are not “statutory” for the purpose of the appointment of special advocates. Unlike, for example, the Prevention of Terrorism Act 2005 (see, in particular, paragraph 7 of the Schedule to that Act) which has built into it provision for the disclosure of “closed” information to special advocates, the Act has no such provision. Any available remedy must, accordingly, be sought either amongst the court's conventional powers or by reference to the inherent jurisdiction of the High Court.
Unusually, it seems to me sensible to look at the terms of the Act before examining the facts. The long title to the Act describes it as: -
An Act to make provision for protecting individuals against being forced to enter into marriage without their free and full consent and for protecting individuals who have been forced to enter into marriage without such consent; and for connected purposes.
The relevant provisions of the Act read as follows: -
1 Protection against forced marriage: England and Wales
After Part 4 of the Family Law Act insert—
Part 4A Forced marriage
Forced marriage protection orders
63A Forced marriage protection orders
(1) The court may make an order for the purposes of protecting—
(a) a person from being forced into a marriage or from any attempt to be forced into a marriage; or
(b) a person who has been forced into a marriage.
(2) In deciding whether to exercise its powers under this section and, if so, in what manner, 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.
(3) In ascertaining that person's well-being, the court must, in particular, have such regard to the person's wishes and feelings (so far as they are reasonably ascertainable) as the court considers appropriate in the light of the person's age and understanding.
(4) For the purposes of this Part a person (“A”) is forced into a marriage if another person (“B”) forces A to enter into a marriage (whether with B or another person) without A's free and full consent.
(5) For the purposes of subsection (4) it does not matter whether the conduct of B which forces A to enter into a marriage is directed against A, B or another person.
(6) In this Part—
“force” includes coerce by threats or other psychological means (and related expressions are to be read accordingly); and
“forced marriage protection order” means an order under this section.
63B Contents of orders
(1) A forced marriage protection order may contain—
(a) such prohibitions, restrictions or requirements; and
(b) such other terms;
as the court considers appropriate for the purposes of the order.
(2) The terms of such orders may, in particular, relate to—
(a) conduct outside England and Wales as well as (or instead of) conduct within England and Wales;
(b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who force or attempt to force, or may force or attempt to force, a person to enter into a marriage;
(c) other persons who are, or may...
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