Re K (Forced Marriage: Passport Order)
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane P,Lord Justice Peter Jackson,Lord Justice Haddon-Cave |
| Judgment Date | 21 February 2020 |
| Neutral Citation | [2020] EWCA Civ 190 |
| Docket Number | Case No: B4/2019/2369 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2020 |
[2020] EWCA Civ 190
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice Peter Jackson
and
Lord Justice Haddon-Cave
Case No: B4/2019/2369
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
THE ORDER OF HHJ TUCKER
BM15F00007
Royal Courts of Justice
Strand, London, WC2A 2LL
Deirdre Fottrell QC, Seema Kansal and Marlene Cayoun (instructed by National Legal Service Solicitors) for the Appellant
Jason Beer QC and Alice Meredith (instructed by Staffordshire and West Midlands Police Joint Legal Department) for the Respondent
Sarah Hannett (instructed by the Government Legal Department) for the First Intervener the Secretary of State for Justice
Henry Setright QC and Jacqueline Renton (instructed by Dawson Cornwell) for the Second Intervener Southall Black Sisters
Hearing date: 27 th November 2019
Approved Judgment
In this appeal the court is required to consider the jurisdiction of the Family Court in respect of two issues related to Forced Marriage Protection Orders [‘FMPO’] made under Family Law Act 1996, s 63A. The first relates to the court's jurisdiction where the subject of the order is an adult who does not lack mental capacity. The second relates to Passport Orders as part of a FMPO, and, in particular, whether there is jurisdiction to make an open-ended or indefinite Passport Order in that context.
The factual background to the application can be stated shortly. The Applicant, “K”, is a single woman now aged 35. K does not lack mental capacity to make decisions with respect to marriage, and, in particular, whether she should be the subject of a Forced Marriage Protection Order. At the time of the original application in 2015, K lived in the family home together with her mother and various relatives. On 29 May 2015 and 3 June 2015, K contacted her local police force, West Midlands Police, alleging that her family were seeking to force her to marry against her will and that they had threatened to murder her if she refused to do so. These allegations were congruent with numerous calls made by a neighbour or neighbours to the police over the preceding ten months expressing concern for K.
On 5 June 2015 the police applied for and were granted a FMPO by HHJ Hindley QC at a without notice hearing.
In January 2016 HHJ Tucker conducted a three-day contested hearing. At that hearing the police submitted that the FMPO should continue. K, who had withdrawn the allegations that she had originally made to the police, sought the discharge of the FMPO. Various members of K's family were respondents and attended the hearing. In particular, the senior male member of the family, K's eldest brother (‘the Fourth Respondent’), apparently presented particularly challenging behaviour in the courtroom. The family's case was that there was no truth in the original allegations which were a combination of lies and false accusations made up by the police and/or ill-intentioned neighbours.
On 21 January 2016, HHJ Tucker gave a short ex tempore judgment in which she concluded that K continued to require the protection of the court under the forced marriage legislation and that the 2015 FMPO would remain in force, subject to some detailed amendment.
Under the heading “Passports” the order made in January 2016 by HHJ Tucker was in the following terms:
“10. The protected party's (K's) passport and other travel documentation shall be held until further order by the West Midlands Police.
11. The Respondents [named] are forbidden from applying for any new passport or any other travel documentation for K from the UK Passport Office or from any other foreign passport agency.”
In the days immediately following the judge's order, K fled from the family home alleging that the Fourth Respondent had seriously assaulted her. The Fourth Respondent was arrested, held in custody, but subsequently the prosecution against him for breach of the FMPO was discontinued when K withdrew her allegation. Around that time K was, however, removed to safe accommodation in a refuge. In May 2016 K was rehoused by the local authority and she has continued to live separately from her family.
In December 2017 K's mother sadly died. Her body was flown to Pakistan and most, if not all, members of the maternal family travelled to Pakistan for the funeral with the exception of K, who was unable to travel because her passport was held by the police.
K applied on an urgent basis for the discharge of the FMPO, and, in particular the Passport Order. In the event, that application could not be heard in time to permit K to travel to Pakistan for the funeral and a more measured process was undertaken, including the instruction of a fresh expert witness, leading to a further two day hearing before HHJ Tucker in July 2018.
On 15 August 2018, HHJ Tucker distributed a draft judgment indicating her decision to refuse K's application to discharge the order but adjourning the final determination in order “to provide some time for K to consider this judgment and take steps to engage with professionals to consider the risk of travel and how that may be guarded against”. The judge had accepted expert evidence that if K was seen to be in a position to protect herself during any visit to Pakistan, then the risk of forced marriage during foreign travel might, to some extent, be reduced.
At a final hearing on 4 December 2018, K confirmed that she had not taken, and did not intend to take, any steps to engage with professionals to consider the risks of foreign travel. The judge therefore confirmed her decision to refuse K's application to vary or discharge the FMPO for the reasons given in the judgment of 15 August 2018.
On 24 May 2019 Williams J granted permission for K to appeal and directed that the appeal should be transferred to the Court of Appeal rather than continuing, as it would otherwise do, at High Court level in the Family Division. The High Court has power, once permission to appeal is granted, to assign the appeal for hearing by the Court of Appeal under Family Procedure Rules 2010, r 30.13.
This court heard the appeal on 27 November 2019 and was greatly assisted by full written and oral submissions made, not only on behalf of K and the Police, but also on behalf of the Secretary of State for Justice and on behalf of a charity, the Southall Black Sisters, which has substantial experience in these matters and which had been given permission to intervene. At the conclusion of that hearing we reserved our judgments.
The Appeal
Although the significance of this appeal for K and for her family should not be underestimated, it is clear that the issues raised go beyond the particular facts of this case and are of general importance. In particular, this court has been asked to consider the following issues:
(a) whether the court has jurisdiction, and if so should that jurisdiction be exercised, where the individual said to be requiring protection is an adult who does not lack mental capacity to make any relevant decision, and who opposes the FMPO;
(b) whether the Family Court has jurisdiction, as part of a FMPO, to require the protected person's passport to be removed and retained by the authorities and, if so, whether that jurisdiction extends to making an open-ended or indefinite “Passport Order”;
(c) what approach should a court take when determining issues such as this where there is apparent conflict between, on the one hand, a person's right to be protected by the State from inhuman or degrading treatment or punishment sufficient to engage Article 3 of the European Convention on Human Rights (“ECHR”) and, on the other hand, that person's autonomy and right to respect for private and family life, including the right to travel, under Article 8.
The focus of this judgment will, therefore, primarily be upon the matters of principle that have been raised with the aim of addressing the overarching issues and offering guidance to courts which may, in the future, be faced with a similar application. It is plain, however, that this was a complex and difficult case in which, in addition to the involved legal issues which are now before this court, HHJ Tucker had the further significant burden of managing proceedings with all of the key family members in the courtroom, tensions running high and, in particular, where the Fourth Respondent persistently displayed challenging behaviour of a high order. Although, at the end of this judgment, I will hold that the appeal should be allowed, that conclusion is made simply to alter one narrow, but plainly important, aspect of the judge's order. It is not my intention to criticise the judge in any way. On the contrary, it is the clear view of each member of this court that HHJ Tucker is to be commended for the manner in which she dealt with this most difficult case and we pay tribute to her.
The Statutory Context
Jurisdiction to grant FMPOs is provided for in Family Law Act 1996, Part 4A “Forced Marriage”, which was inserted into the 1996 Act by the Forced Marriage (Civil Protection) Act 2007, s 1.
Statutory provision with respect to forced marriage followed a developing line of authority within the High Court, Family Division, in which judges condemned the practice of forced marriage in the strongest of terms holding that it was “an abuse of human rights…a form of domestic violence that dehumanises people by denying them their right to choose how they live their lives” ( Re SK (An Adult) (Forced Marriage: Appropriate Relief) [2004] EWHC 3202 (Fam) (Singer J)) and that it was “…utterly unacceptable…a gross abuse of human rights…intolerable…an abomination” ( NS v MI [2007] 1 FLR 444 (Munby J (as he then was)). Forced marriages were said to be “a scourge, which degrade the victim and can create untold...
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