Sheffield City Council v M
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 07 June 2023 |
| Neutral Citation | [2023] EWHC 1399 (Fam) |
| Court | Family Division |
| Docket Number | Case No: SE20F62306/SE20F62307 |
[2023] EWHC 1399 (Fam)
Mr Justice Poole
Case No: SE20F62306/SE20F62307
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SITTING AT SHEFFIELD
Jane Wheatley (instructed by Sheffield City Council) for the Applicant
The First Respondent not appearing and not represented
Angela Wrottesley (instructed by Messrs Howells) for the Second Respondent at the Open Hearing only
Anita Guha as Special Advocate representing the interests of the Second Respondent, appearing at the Closed Hearing
Justine Cole (instructed by Best Solicitors) for the Third and Fourth Respondents
Hearing dates: 24 to 25 April 2023
OPEN JUDGMENT
Introduction
Important evidence relied upon in support of applications for Forced Marriage Protection Orders has been withheld from the respondents to those applications, who are the parents of the children who are the subjects of the orders. The mother has not engaged in the proceedings but the father has done so. A Special Advocate has been appointed to seek to uphold the father's Art 6 rights. Following closed hearings at which the Special Advocate represented the interests of the father, and open hearings at which the father was represented by his chosen solicitor and barrister, I have decided that FMPOs and passport retention orders should be continued until, in each case, the protected person attains the age of 21. In this open judgment I shall give my reasons for those decisions and reflect on the use of a Special Advocate in these proceedings.
The Applicant, Sheffield City Council (SCC) seeks Forced Marriage Protection Orders (FMPOs) in respect of two children, A and B, now aged 17 and 15 respectively, whose mother (M) and father (F) are the First and Second Respondents. The mother has not engaged in these proceedings and her precise whereabouts are unknown. The father has engaged in the proceedings and has agreed, on a without admissions basis, to FMPOs being made (albeit not for the durations proposed by SCC) but opposes the making of orders for the authorities to retain the children's passports (currently held by the police). SCC has prepared a detailed document, agreed by the police, setting out the arrangements for the retention of the passports and their temporary release to each protected person on request. Those arrangements allow for a risk assessment to be carried out before the temporary release of a passport to allow the protected person to travel abroad. SCC invites the court to make passport retention orders until A and B each reach the age of 21. The Children's Guardian supports those orders being made.
On SCC's application, the court has previously determined that evidence on which SCC relies, should be withheld from M and F. For the reasons set out in my previous judgment Sheffield City Council v M, F, A, and B [2022] EWHC 128 (Fam), I appointed a Special Advocate to represent F's interests at closed hearings in these proceedings. Ms Guha has acted as Special Advocate, including at a closed hearing of oral evidence.
To avoid repetition, I refer to my previous judgment (above) for the background to SCC's applications for FMPOs and passport retention orders. Following that judgment, there have been further hearings at which I have ordered very limited disclosure to F and the continuation of the FMPOs and the passport orders. A listed hearing of oral evidence had to be postponed because of a development that was fully considered at a closed hearing. At a closed hearing in April 2023, I heard evidence from, amongst others, DC Frost, who has led the police investigations in relation to the matters giving rise to the FMPOs, and from Ms Fry and Ms Bi, social workers. On 26 April 2023, at an open hearing, I heard evidence from F and, again, from Ms Bi. I received written evidence and oral submissions at both hearings.
I have produced a closed judgment in which I consider all the evidence and submissions and give full reasons for my determinations. I am unable to give my full reasons in this open judgment due to the fact that I cannot refer to the closed material.
The Legal Framework
The power to make FMPOs is contained in Part 4A of the Family Law Act 1996. I set out the relevant provisions in my earlier open judgment in which I also referred to the President's judgment in Re K (Force Marriage: Passport Order) [2020] EWCA Civ 190 which provides very clear, authoritative guidance, including in relation to passport orders of the kind sought by SCC. Section 63A of the Family Law Act 1996 provides,
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.
In Re K, the President noted at [30] that “the legislation is cast in the widest and most flexible terms”. The President continued,
“[37] It therefore follows that, in cases where there is potential conflict between Article 3 and Article 8 rights, the court must strive for an outcome which takes account of and achieves a reasonable accommodation between the competing rights. In this context, I have deliberately chosen the word “accommodation” to reflect the court's approach. The required judicial analysis is not a true ‘balancing’ exercise in consequence of the imperative duty that arises from the absolute nature of Article 3 rights. Where the evidence establishes a reasonable possibility that conduct sufficient to breach Article 3 may occur, the court must at least do what is necessary to protect any potential victim from such a risk. The need to do so cannot be reduced below that necessary minimum even where the factors relating to the qualified rights protected by Article 8 are particularly weighty. Hence the need to find a word other than ‘balance’ to describe this process of analysis.
[38] The need to accommodate the Article 3 and Article 8 rights is likely to be at the centre of most, if not all, FMPO cases and it was, therefore, understandably, the principal focus of the submissions made to this court. The facts of the present case, in which the judge's order imposes a permanent travel ban upon K leaving the UK, presents the conflict, between the need to protect the individual from serious harm against the individual's freedom to conduct their private life as they wish, in stark relief.
[39] Once again, all parties before the court were in agreement that an assessment of proportionality must be undertaken. On one view, “proportionality” may seem to be an inappropriate concept when the court is considering an absolute Convention right such as Article 3. However, in cases where there has not yet been a forced marriage, the court will not be dealing with the certainty that future harm will take place but, rather, the assessment of the risk that it may do so. Where protective measures will necessarily limit the freedom of the protected person and others to enjoy other Convention rights, it will be necessary to evaluate, with a degree of precision, the extent of protection that is necessary in each individual case. In this regard, the exercise to be conducted in a FMPO application is broadly similar to that undertaken where the risk of future harm arises from the potential for Female Genital Mutilation “FGM”). In that context, this court (Irwin, Moylan and Asplin LJJ) considered the imposition of a “worldwide travel ban” in an FGM case in Re X (A Child: FGMPO) (Rev 2) [2018] EWCA Civ 1825
The President also set out a “routemap to judgment” at paragraphs 45 to 55 of his judgment: stage one is to establish the underlying facts; stage two is a determination of whether or not there is a need to protect a person from being forced into marriage or from any attempt to do so, or that a person has been forced into marriage; stage three is an assessment of the risks and the protective factors that relate to the particular circumstances of the individual vulnerable to forced marriage; stage four is achieving an accommodation between the necessity of protection and the need to respect their family and private life under Article 8.
The burden of proof is on SCC and the standard of proof is the civil standard of the balance of probabilities. It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything: see R v Lucas [1981] QB...
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