P v Q
| Jurisdiction | England & Wales |
| Neutral Citation | [2023] EWHC 195 (Fam) |
| Court | Family Division |
2023 Jan 9; Feb 2
Marriage - Forced marriage - Protection orders - American wife resident in United States applying for forced marriage protection order against British husband resident in United Kingdom - Whether court having jurisdiction to make forced marriage protection order where applicant neither physically present in jurisdiction nor British national -
The wife, who was of Pakistani descent and was a citizen of, and resident in, the United States of America, applied for a forced marriage protection order under section 63A of the Family Law Act 1996, alleging that while visiting Pakistan she had been forced into marrying the husband, a first cousin with dual British and Pakistani nationality who was resident in England. The district judge dismissed the application, holding that the 1996 Act did not give her jurisdiction to make a forced marriage protection order in respect of an applicant who was neither physically present in the jurisdiction nor a British citizen.
On appeal by the wife—
Held, allowing the appeal, that the court’s jurisdiction to make a forced marriage protection order under section 63A of the Family Law Act 1996 was not limited by reference to the physical presence, habitual residence or citizenship of the applicant; that, therefore, a forced marriage protection order under section 63A of the 1996 Act could be made in respect of an applicant who was neither physically present nor resident in the United Kingdom and was not a British citizen; that such an interpretation was permissible because, in accordance with section 3 of the Human Rights Act 1998, it gave effect to the 1996 Act in a way which was compatible with the rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular articles 3 and 8 thereof, forced marriage being a fundamental abuse of a victim’s human rights; that the only specific requirement which section 63A imposed on a court when considering making a forced marriage protection order was to take account of “all the circumstances”, which would include, where relevant, the connection and/or nationality of both the applicant and any identified respondent; that, consistently with the foregoing analysis, the court was likely to exercise its jurisdiction to make a forced marriage protection order in circumstances where, for example, either the applicant or a respondent had a connection with the United Kingdom, being either physically present here or habitually resident here or a British national, although that did not constitute a threshold filter; that, it followed that, in the present case the district judge had erred in holding that she lacked the jurisdiction to make a forced marriage protection order on the wife’s application; and that, being satisfied that the wife had been forced into marriage by the husband and other members of their extended families and that there was a need to protect her from the husband’s ongoing harassing and intimidatory behaviour, the court would make a forced marriage protection order to prevent ongoing contact between the parties save via their respective legal advisors and to prevent further harassment, pestering, intimidation and similar behaviour, whether directly or via the husband’s family, including via social media and other methods of communication, such order to remain in force until varied or terminated by a subsequent court order (post, paras 35–44, 48–49).
The following cases are referred to in the judgment:
A (Forced Marriage: Special Advocates), In re
Al-Jeffery v Al-Jeffery (Vulnerable Adult: British Citizen)
Ghaidan v Godin-Mendoza
K, In re
KBH (Forced Marriage Protection Order: Non-resident British Citizen), In re
Volodina v Russia (Application No 41261/17) (unreported) 9 July 2019,
The following additional cases, supplied by courtesy of counsel, were cited in argument or referred to in the skeleton argument:
RS v JS
UD v XB
APPEAL from District Judge Orchover sitting in the Central Family Court
On 6 October 2022 the wife, P, who was of Pakistani descent and was a citizen of the United States of America where she was living, applied for a forced marriage protection order pursuant to Part 4A of the Family Law Act 1996 against the husband, Q, a British citizen resident in England. On 2 November 2022 District Judge Orchover, sitting in the Central Family Court, refused the application on the basis that the Act prevented her from making the order because the wife was neither physically present in the jurisdiction nor a British citizen.
By a notice of appeal dated 22 November 2022 the wife applied for permission to appeal on the grounds, inter alia, that: (1) the district judge had been wrong in law in refusing the application on the basis that she did not have jurisdiction to grant the order where the applicant was neither physically present in England nor a British citizen; and (2) the district judge had erred in concluding that she could not grant the order when the husband, whose behaviour was the subject of the application, was both a British citizen and physically present in the United Kingdom; and (3) the appeal raised an important point of public policy, especially considering the sensitive nature of the case which concerned allegations of forced marriage and rape, and where the protective/injunctive jurisdiction of the Forced Marriage (Civil Protection) Act 2007 needed to be pro-actively considered, being extraterritorial in its application which was particularly important in a world of global social media and other internet platforms. On 25 November 2022, Sir Jonathan Cohen sitting as a judge of the Family Division gave directions for an oral permission hearing with the appeal to follow immediately if permission was granted.
The hearing was held in private and the judgment is reported with permission of the judge on condition that the anonymity of the parties and their families be strictly preserved.
The facts are stated in the judgment, post, paras 6–15.
Teertha Gupta KC and Naima Asif (instructed by
The husband did not appear and was not represented.
The court took time for consideration.
2 February 2023. GWYNNETH KNOWLES J handed down the following judgment.
Introduction1 On 2 November 2022 District Judge Orchover (“the judge”) dismissed an application for a forced marriage protection order (“FMPO”) pursuant to Part 4A of the Family Law Act 1996 (“the Act”) on the basis that the Act prevented her from making such an order to protect the appellant, because the appellant was neither physically present in this jurisdiction nor a British citizen. The appellant (hereinafter referred to as “P”) sought permission to appeal that decision. As the grounds of appeal raised some important matters of jurisdiction, the application for permission was referred to the Family Division for determination and, on 25 November 2022, Sir Jonathan Cohen—the judge in charge of appeals in the division—gave directions for an oral permission hearing with the appeal to follow immediately if permission was granted. The matter was listed before me originally on 8 December 2022 but, when a hearing on that date was not practicable, it was re-listed on 9 January 2023.
2 The respondent is P’s husband (hereinafter referred to as “Q”). He played no part in the proceedings before the judge despite being served with notice of the proceedings in the Central Family Court. Indeed, the judge’s clerk telephoned Q on 1 November 2022 and explained who she was and why she was ringing but, before she could speak to Q, the call was terminated. Persistent efforts were made to personally serve Q with notice of the appeal and the hearing date and the directions made by Sir Jonathan Cohen, but he failed to respond to numerous telephone calls or attendance at his home address. Service was eventually effected by posting the relevant documents through the letterbox at his home address. All subsequent efforts to communicate with Q have met with a deafening silence: he failed to respond to emails sent by my clerk and by those representing P in respect of this hearing. I concluded that Q knew about the proceedings and about his right to be heard but did not wish to play any part in the appeal hearing. I considered very carefully whether I should proceed in Q’s absence given the important, though narrow, jurisdictional issues raised by this appeal and concluded that I should as he had been given every opportunity to involve himself in the proceedings but had chosen not to do so.
3 The appeal hearing took place remotely given that P was resident in the United States and, as expected by reason of his past conduct, Q did not attend. I read the appeal and authorities bundles and also received an oral update as to P’s personal circumstances from Mr Teertha Gupta KC. During the hearing, I indicated that I would give permission on two of the three grounds of appeal advanced and I heard more detailed...
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