Court of Appeal Judgment Delivers Critical Guidance in Forced Marriage Cases
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Court of Appeal Judgment Delivers Critical Guidance in Forced Marriage Cases
February 21, 2020
Today, the Court of Appeal handed down important guidance on how family courts should approach the granting of forced marriage protection orders (FMPOs). Southall Black Sisters (SBS) intervened in the case because it raised important questions on how to balance the tension between the need for protection and oppressive state intervention, in forced marriage cases
.Background
In 2015, a family court granted the police an FMPO on an emergency basis to protect an adult (K), with mental capacity who was deemed to be at high-risk of forced marriage. The fear was that she would be taken to Pakistan by family members for the purpose of a forced marriage. Prior to the granting of the forced marriage order, she had been assaulted by her family and threatened with violence and even death. The court also ordered that her passport be retained to protect and prevent K from being taken out of the country.
Over the next four years, K repeatedly asked for the FMPO to be discharged and her passport returned to her. She stated that she was not at risk of forced marriage and that the retention of her passport for an indefinite period in particular, went against her express wishes and feelings and constituted an unjustifiable interference with her human rights including her right to liberty. However, the police maintain that she is still subject to coercive control and familial pressure, and may come to serious harm if these restrictions are lifted.
Court of Appeal judgment
K’s case therefore concerned the potential conflict between the need to protect an individual under Article 3 of the European Convention of Human Rights (ECHR) – the right to freedom from torture and inhuman or degrading treatment – and the need to respect Article 8 of the ECHR – the right to private and family life. The judgment notes that the need to accommodate Article 3 and Article 8 rights is likely to be at the centre of most, if not all, FMPO cases.
Quoting our submission, the Court noted that Forced Marriage Protection Orders have been “hugely important in protecting and preventing forced marriage because the orders can be more finely tuned to fit an individual’s circumstances and needs.” It went on to say:
“SBS’s submissions describe their work, which involves treading a difficult path in ensuring sufficient protection for potential victims whilst, at the same time, maintaining the individual’s autonomy by respecting their wishes and feelings and encouraging, rather than compelling, women to make choices that will keep them and any children safe. There is, submits SBS, “a fine line between protection and excessive intervention”.
To enable the right accommodation to be made between Article 3 and Article 8 ECHR in future forced marriage cases, the Court of Appeal has set out detailed and comprehensive guidance or a ‘route map’ that advises: tailoring the forced marriage order to fit the particular family circumstances of a case; understanding family circumstances as a dynamic and changing process when considering the length of time that an order is to remain in force; imposing time limits when making open-ended orders and ensuring that when making orders to protect adults in a case, even if they have mental capacity, and where the facts found and the assessment of the Article 3 risk is justified, the court should be plain that that is the course that it is taking and give adequate reasons.
Pragna Patel, director at Southall Black Sisters:
“We very much welcome this immensely helpful guidance. There is no question in our minds that forced marriage is a fundamental abuse of women’s human rights. Courts must act to guarantee effective protection and prevention to a woman whilst also ensuring that they do not restrict her liberty indefinitely. Women and girls should be supported in retaining as much autonomy and voice in the process of rebuilding their lives as is possible.”
Anne-Marie Hutchinson of Dawson Cornwell says:
“This Court of Appeal decision is of seminal importance in Forced Marriage jurisprudence and is of the widest general importance to Forced Marriage cases. It sets out the approach that a court must take where there is an apparent conflict between a person’s right to be protected from inhuman or degrading treatment and that person’s autonomy and right to respect for their private and family life. The ECHR (articles 3 and 8) are fully engaged. The Court of Appeal has set out a route map to be followed in such cases. That route map, however, is case sensitive and avoids over formulaic packaging. The case is a reminder of the need for specialist advice and representation by all parties.”
Anne-Marie Hutchinson OBE, QC (Hon) and Sulema Jahangir of Dawson Cornwell were delighted to be instructed by Southall Black Sisters for representation in this matter through Leading Counsel Henry Setright QC and Jacqueline Renton of 4 Paper Buildings.