Re Sk (Proposed Plaintiff) and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SINGER |
| Judgment Date | 03 February 2005 |
| Neutral Citation | [2005] EWHC 3202 (Fam) |
| Court | Family Division |
| Date | 03 February 2005 |
[2004] EWHC 3202 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Justice Singer
In the Matter of the Supreme Court Act 1981
And in the Matter of the Family Law Act 1996
And in the Inherent Jurisdiction of the High Court
Transcribed by Harry Counsell & Co
Cliffords Inn
Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
(As approved)
This judgment is intended as a brief explanation of why I have decided to exercise jurisdiction in this case, which although novel is of a type which has been anticipated by commentators and practitioners who work in the field of forced marriage: where the threat or the reality of this abuse strikes at an adult. What powers if any have the courts of England and Wales and how should they exercise them?
The proposed plaintiff in these proceedings as yet knows nothing about them. She is a young adult British citizen, so far as I know on the information that is available brought up and certainly habitually resident in England unless she herself has very recently voluntarily taken up habitual residence elsewhere. Her family comes from Bangladesh and this is where she now is so far as is known. They too are unaware of this application which is brought without advance notice to any proposed defendant.
The request to take action on her behalf has come to Miss Anne-Marie Hutchinson of Dawson Cornwell, a solicitor with expertise in cases involving child abduction and forced marriage, from the Community Liaison Unit at the Foreign and Commonwealth Office. Consular officers in Bangladesh and London have from a variety of sources received information concerning the young woman who is the proposed plaintiff which, if true, is gravely disquieting. It is quite unnecessary, I think, for present purposes to go into the detail of the reasons for that anxiety or how they have been communicated. Suffice to say that if they prove to be substantially well-founded they would certainly satisfy me that there would be serious cause for concern about her capacity to control her own life and destiny at the moment. This notwithstanding that she is an adult and is emancipated, at least in terms of English law, and should not be the subject of duress or force or be deprived of the ability to make her own decisions.
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. It may transpire indeed that she may be or is a young woman in relation to whom that has already happened. In either event the activities involved to those ends would be or would have been a gross interference with her human rights and might have involved the commission of criminal offences against her. If, in truth, she were forced to marry or if, in truth, that is the outcome which she may contemplate and fear, then steps taken in furtherance of those ends would be a series of acts to which she did not consent. Indeed her very capacity to consent would have been overborne by fear, duress or threat. If therefore she has been through or faces the prospect of going through a ceremony of marriage with which she is, in fact, not in agreement it would be a voidable marriage, but nevertheless one which might engender irreparable and severe physical and emotional consequences for its victim.
In the case of a young person (male or female) still a minor, that is to say under the age of 18, the English courts have over recent years demonstrated their capacity to act in concert with, amongst others, the Foreign and Commonwealth Office, a number of NGOs in this country and abroad, and humanitarian and committed judges and lawyers abroad to attempt to prevent such gross transgressions of an individual's integrity and, wherever possible, to remedy their consequences. Amongst the fruits of this co-operation are the publication last June of Guidance on Forced Marriage from the Law Society of England and Wales (see [2004] 126 IFL), the imminent issue by the FCO of a brochure designed to alert potential victims to the preventive measures and the remedies available, and the recent establishment of a new joint Home Office-Foreign Office Forced Marriage Unit (announced on 27 October 2004: see fco.I.uk or homeoffice.I.uk). In the press release issued on that occasion the then Home Secretary is quoted thus:
'Forced marriage is simply an abuse of human rights. It is a form of domestic violence that dehumanises people by denying them their right to choose how to live their lives. Valuing individual citizens, their dignity and the contribution they have to make to society in their own right is a central part of our drive for strong, active communities. The appalling practice of forced marriage represents the opposite extreme and that is why Government is taking tough action to eradicate it. It is very encouraging that a large number of community and faith leaders and voluntary organisations have come forward to take a full part in raising awareness of these problems and the support that is available.'
The communities within which forced marriage can take place are numerous and they are by no means restricted to communities of one faith, or to communities in or from any one part of the world. I certainly have had experience of forced marriage cases involving various religions other than Islam and with connections elsewhere than in South- East Asia. However it is certainly to be noted and applauded that responsible Muslim bodies within England and Wales recognise and broadcast that forced marriage is un-Islamic, finds not the slightest vindication in the Koran, and is as unacceptable in Islam as to all other true religions.
I emphasise, as needs always to be emphasised, that there is a spectrum of forced marriage from physical force or fear of injury or death in their most literal form, through to the undue imposition of emotional pressure which is at the other end of the forced marriage range, and that and that a grey area then separates unacceptable forced marriage from marriages arranged traditionally which are in no way to be condemned, but rather supported as a conventional concept in many societies. Social expectations can of themselves impose emotional pressure and the grey area to which I have referred is where one may slip into the other: arranged may become forced but forced is always different from arranged.
This young woman, therefore, if a child, would be protected by the court, which would make orders of the sort I am making but adapted to the fact that a child can be made a ward of court. An adult cannot be made a ward of court, but the inherent jurisdiction of the High Court can, in an appropriate case, be relied upon and utilised to provide a remedy. I believe that the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values. If an adult is deprived of the capacity to make relevant decisions, then if there is...
To continue reading
Request your trial
-
Re L (Vulnerable Adults with Capacity: Court's Jurisdiction) (No 2)
...Mr Justice Singer a few months earlier in Re: SK (Proposed Plaintiff) (An adult by way of her litigation friend) [2004] EWHC 3202 (Fam); [2006] 1 WLR 81. Miss Lieven also seeks to isolate the Re SA decision by pointing out that the individuals in the earlier cases of Re T and Re G were peo......
-
X City Council v MB and Others
...marriage), Re[2005] EWHC 2942 (Fam), [2006] 1 FLR 867. SK (an adult) (forced marriage: appropriate relief), Re[2004] EWHC 3202 (Fam), [2005] 2 FCR 459, [2005] 3 All ER 421, [2006] 1 WLR Sottomayor v De Barros (1877) 3 PD 1. Vervaeke v Smith (Messina and A-G intervening) [1982] 2 All ER 144,......
-
A Local Authority and Others v Dl
...[1985] 1 All ER 643, [1985] AC 871, [1985] 2 WLR 480, HL. SK (an adult) (forced marriage: appropriate relief), Re[2004] EWHC 3202 (Fam), [2005] 2 FCR 459, [2005] 3 All ER 421, [2006] 1 WLR SK (vulnerable adult: capacity), Re[2008] EWHC 636 (Fam), [2008] 2 FLR 720. T (An Adult: Medical Treat......
-
Chief Constable v YK and Others
...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. 10 The legal conu......
-
Without consent: forced marriage in Australia.
...SHv NB [2010] 1 FLR 1927. (16) Singh v Singh [1971] P 226; Hirani v Hirani (1983) 4 FLR 232; Mahmood v Mahmood [1993] SLT 589; Re SK [2006] 1 WLR 81. See also Anne Phillips and Moira Dustin, 'UK Initiatives on Forced Marriage: Regulation Dialogue and Exit' (2004) 52 Political Studies 531,53......