SA (by her Litigation Friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Dingemans,Lady Justice King |
| Judgment Date | 30 August 2023 |
| Neutral Citation | [2023] EWCA Civ 1003 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001330 |
[2023] EWCA Civ 1003
Lady Justice King
Lord Justice Moylan
and
Lord Justice Dingemans
Case No: CA-2022-001330
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE NEWTON
FD21F0051
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael O'Brien KC (instructed by Taj Solicitors) for the Appellant
Jessica Lee (instructed by Pathfinder Legal Services) for the First Respondent
Katie Williams-Howes (instructed by Duncan Lewis Solicitors) for the Second Respondent
Rhys Hadden (instructed by Bindmans LLP) for the Third Respondent
Hearing date: 22 February 2023
Approved Judgment
This judgment was handed down remotely at 12.00 noon on 30 August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This appeal concerns the jurisdiction of the court to make a declaration that a marriage is not recognised as valid in England and Wales.
The marriage in question took place in Bangladesh on or around 25 October 2019 and was between SA, who has always lived in and is domiciled in the UK, and NU who, it appears, has always lived in and is domiciled in Bangladesh. By his order dated 26 May 2022, Newton J (“the judge”) made a declaration that the marriage “is not recognised as valid in this jurisdiction”.
SA is significantly intellectually impaired. The judge decided that SA lacked the capacity to consent to marry and lacked the capacity to engage in sexual relations. He found that there had been a forced marriage and made a Forced Marriage Protection Order (“FMPO”) in respect of SA. These aspects of his decision are not challenged.
SA also lacks the capacity to litigate and acts through her litigation friend, the Official Solicitor. The other relevant parties to the proceedings are SA's mother and father and the Local Authority, West Northamptonshire Council. NU is not a party to the proceedings.
SA's mother appeals from the judge's declaration contending, as set out in refined grounds of appeal: (a) that the court was wrong to make the declaration because the inherent jurisdiction should not be used to bypass the effect of ss. 55 and 58 of the Family Act 1986 (“the FLA 1986”); and (b) that the inherent jurisdiction to make a declaration of non-recognition of marriage can only be used “on exceptional public policy grounds” and this case is “unexceptional”.
Permission to appeal was given by Peter Jackson LJ, not because he considered that the appeal from the judge's decision to make a declaration had a real prospect of success, but principally to enable this court to address Mostyn J's obiter observations in NB v MI (Capacity to Contract Marriage) [2021] 2 FLR 786 (“ NB v MI”) in which he cast doubt on this court's decision in Westminster City Council v C and Others [2009] Fam 11 (“ Westminster CC”). A significant part of the hearing below and a considerable part of the judge's judgment was spent addressing those observations.
On this appeal, the mother is represented by Mr O'Brien KC; Ms Williams-Howes appears for the father; Ms Lee appears for the Local Authority; and Mr Hadden appears for SA, through the Official Solicitor. They all appeared before the judge at the hearing below.
The case advanced by the mother in support of the appeal relied significantly on the judgment in NB v MI and on what Mr O'Brien submitted were the public policy choices made by Parliament as reflected in the provisions of the FLA 1986 and in s. 12(1)(c) of the Matrimonial Causes Act 1973 (“the MCA 1973”). He submitted that it could be inferred, from the fact that these provisions had not been amended, that the relevant public policy considerations remained the same. This meant that the remedy provided by Parliament for a voidable marriage is a nullity petition.
I also note that victims of forced marriage are provided with lifelong anonymity by the provisions of s. 122A and Schedule 6A of the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”).
Background
The background, in brief, is as follows.
SA was born in the UK. In October 2019 she travelled to Bangladesh. As a result of information provided to, it appears, the Local Authority, the Police and the Forced Marriage Unit, the Local Authority applied for an FMPO under Part 4A of the Family Law Act 1996 (“the FLA 1996”) on 24 October 2019. An FMPO was made on 25 October. At that hearing, the father informed the court that SA was in Bangladesh with her mother having left the UK on 6 October; that SA had become engaged to marry on 11 October; and that SA had married on 18 October. She had married her cousin, NU. The date of the ceremony was later said to have been 25 October.
In addition to the application for an FMPO, the Local Authority applied for declarations in respect of SA's capacity, including in respect of her capacity to marry, and for a declaration under the court's inherent jurisdiction that the marriage was a nullity or alternatively that the marriage should not be recognised.
The final hearing of these applications did not commence until early 2022. This was significantly due to the court making directions for further educational work to be undertaken with SA and for further assessments of her capacity in respect of various matters. Ultimately, the court had, in total, four reports by two jointly instructed independent experts. SA was diagnosed as having a moderate learning disability with an extremely low range of ability in all areas of cognitive and adaptive functioning.
Judgments
In his first judgment dated 21 February 2022, the judge dealt with the issue of SA's capacity. After hearing evidence from one of the instructed experts, social workers and the mother and father, the judge concluded that SA did not have capacity to marry or capacity to engage in sexual relations, either at the time of the marriage or at the time of the hearings.
The judge set out the evidence as to the extent of SA's learning disability. This included that SA “is in the extremely low range of ability”; she is “only able to hold up to five pieces of information at one time [and] would not be able to mentally manipulate fives pieces of information consistently”; she “would have difficulty problem-solving”; she cannot write or read; she is “unable to shower”; and she is “suggestible” and “has no ability to resist how she was being steered by others”.
In his second judgment, the judge dealt with the application for an FMPO and for orders in respect of the marriage. He made an FMPO and made a declaration that SA's marriage was not entitled to recognition in England and Wales. In respect of the former, it seems clear that the order was made on the basis that SA had been forced into a marriage (as provided for by s. 63A(1)(b) of the FLA 1996.
As to the latter, the judge noted that it was “only appropriate to engage the inherent jurisdiction if no other statutory mechanism is available to deal with the relevant interests in play”. He then considered the differences between a void and a voidable marriage and referred to the provisions of ss. 11 and 12 of the MCA 1973 and of ss. 55 and 58 of the FLA 1986. He noted that the Court of Appeal in Westminster CC had decided that the inherent jurisdiction “was available to make a declaration of non-recognition of marriage”. The judge analysed a number of first instance decisions in which the court had considered “whether to grant a declaration of non-recognition of marriage”, namely:
(a) X City Council v MB, NB and MAB (By His Litigation Friend the Official Solicitor) [2006] 2 FLR 968, in which Munby J (as he then was) made a declaration, in respect of a person who lacked capacity to marry, that “Any purported marriage … will not be recognised in English law”;
(b) SH v NB (Marriage: Consent) [2010] 1 FLR 1927 in which, in respect of a forced marriage in Pakistan and when nullity proceedings were not available because of the lapse of time (under s. 13 of the MCA 1973), I decided, at [104], applying Westminster CC, that “the appropriate remedy is to grant a declaration that there is no marriage between the petitioner and the respondent which is entitled to recognition as a valid marriage in England and Wales”;
(c) B v I (Forced Marriage) [2010] 1 FLR 1721 in which, in respect of a forced marriage in Bangladesh and when nullity proceedings were not available because of the lapse of time, Baron J made a declaration that the marriage was not recognised in this jurisdiction;
(d) Re P (Forced Marriage) [2011] 1 FLR 2060, Baron J again granted a declaration in respect of a forced marriage when nullity proceedings were not available because of the lapse of time; she applied Westminster CC;
(e) XCC v AA & Ors [2012] EWCOP 2183, Parker J, applying Westminster CC, made a declaration of non-recognition in respect of a marriage in Bangladesh when one party, DD, had “a very significant degree of learning disability”. Parker J determined, at [30], that “a marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage (Civil Protection) Act 2007” and, at [88], “that nullity is adjunctive rather than an alternative to a declaration of non-recognition”;
(f) Sandwell MBC v RG & Ors [2013] EWCOP 2373 in which, as the judge said, Holman J, at [28]–[29], “expressly recognised that, following the decision of Westminster CC v KC, the High Court has power in appropriate circumstances to make a declaration of non-recognition” although one was not in fact sought at the hearing in that case;
(g) A Local Authority v X and a Child [2014] 2 FLR 123, in which Holman J declined to make a declaration of non-recognition in respect of a marriage...
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