Applications for forced marriage protection orders (“FMPO”s) made pursuant to s.63A of the Family Law Act 1996 are on the rise: in 2018, the government’s Forced Marriage Unit provided advice or support in 1,764 possible forced marriage cases; a significant increase from the following 1200-1400 cases in 2017. Also in 2018, Family Court statistics indicate that 322 applications were made and 324 orders granted. Despite applications being made by police, who must seek leave to make such an application under s.63C(3) of the Family Law Act 1996, and local authorities, the legislation itself does not provide clear guidance as to how the court should deal with such applications. The President of the Family Division, Sir Andrew McFarlane, has now done so in Re K (Forced Marriage: Passport Order)[2020] EWCA Civ 190.
Issues considered
The key questions for the court were as follows, paraphrased from [14]:
1. Does the court have jurisdiction where the subject of the order is an adult who has mental capacity and, if so, should that jurisdiction be exercised?
2. Does the Family Court have jurisdiction to require the protected person’s passport to be removed and retained by the authorities and, if so, does that include jurisdiction to make an open-ended or indefinite Passport Order?
3. What approach should be taken where there is an apparent conflict between a protected person’s Article 3 and Article 8 rights?
The majority of the judgment focussed upon the final question.
General principles
The court indicated that the lack of clarity within the legislation was, in fact, an intended asset, providing flexibility to the courts to cater to the specific needs of the protected party. It readily accepted that it had jurisdiction to make a FMPO to protect an adult who does not lack mental capacity; indeed, this did not appear to be in dispute between the parties [35]. The approach to be taken, however, is more nuanced. The general principle to be applied in respect of “accommodating” the protected person’s article 3 and article 8 rights is set out at [37]:
“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.”
All parties to the proceedings also identified and agreed that an assessment of proportionality must be undertaken [39]. Where preventative measures are proposed, it follows that the extent of protection that is necessary must be evaluated. This proposition remains true despite the “absolute” nature of article 3 because the tenet of article 3 to be considered is the positive obligation imposed on the state to protect its individuals from article 3.
The “routemap” approach to follow
Following a useful analysis of the relevant principles, McFarlane P sets out the four-stage “routemap” to be followed when the court is considering making a FMPO in any particular case [45] – [55]:
Stage 1:
(i) The court must establish the underlying facts on the basis of admissible evidence and by applying the civil standard of proof [46].
(ii) The first ex parte hearing will not require an in-depth analysis of the facts, as the court’s primary role is protective at this stage.
(iii) Where, however, the continuation of a FMPO is contested, “it will be necessary for the court to undertake an ordinary fact-finding evaluation of any potentially relevant factual issues” [49].
Stage 2:
Based on the findings of fact, the court should determine whether there is a need to protect a person: (a) from being forced into a marriage; (b) from any attempt to be forced into a marriage; or (c) that has been forced into a marriage, pursuant to s 63A(1) FLA 1996.
Stage 3:
(i) Based upon the findings of fact, the court must assess the risks and the protective factors that relate to the particular circumstances of the individual who is said to be vulnerable to forced marriage. McFarlane P suggests drawing up a balance sheet.
(ii) At the conclusion of this stage, “the court must explicitly consider whether or not the facts as found are sufficient to establish a real and immediate risk of the subject of the application suffering inhuman or degrading treatment sufficient to cross the ECHR, Article 3, threshold” [52] (emphasis added).
Stage 4:
(i) If the facts are sufficient to establish the requisite risk, the court must undertake the exercise of achieving an “accommodation” between the necessity of protection from the risk of harm under article 3, on the one hand, and the individual’s article 8 rights, on the other.
(ii) As above, this is not a “balancing” exercise, as the court must establish the “minimum measures necessary to meet the article 3 risk” established under Stage 3.
(iii) The court should also keep in mind the high degree of flexibility afforded by the legislation, and should be encouraged to draft a bespoke order. McFarlane P states, “…this is not a jurisdiction that should ordinarily attract a template approach” [54].
Finally, the court provided guidance on length of such orders. McFarlane P stated, “…The court should first consider whether a finite order adequately meets the risk, with the consequence (if it does) that the applicant for the order will have to seek a further order at the end of the term if further protection is then needed. A date should be fixed on which the order, or a specific provision within it, is reviewed by the court” [55].
Passport orders
The court provided further specific guidance in relation to passport orders. In essence, the court has jurisdiction to impose travel restrictions within FMPOs by virtue of passport orders. The court may consider it necessary to do so for the protection of the individual; an individual’s wishes and feelings are relevant to this decision, but they are to be assessed as a part of the court’s overall analysis of that person’s “wellbeing”. Such principles apply whether or not the person has capacity to make decisions about capacity and travel [64].
Such restrictions should, however, be imposed indefinitely only in the “…most exceptional of cases and where the court can look sufficiently far into the future to be satisfied that highly restrictive orders of that nature will be required indefinitely” [67].
Unless it is evident that the risk will be removed after a specific time, “the appropriate course will be for the court to list the matter for a further review a short time before the passport and/or travel ban will otherwise expire” [67].
The appeal against the imposition of the FMPO was allowed on one limited but important point: on the facts of Re K, the court determined that a review period of four years would have been reasonable. As such, the court ordered such a review hearing to take place in December 2022.
Final word of caution
It is clear in Re K, the court considers the state to have positive obligations to undertake an active and positive role of protecting an individual from themselves and their community.
Of course, where the court identifies that the state’s obligations under the European Convention of Human Rights are engaged, so too may the court be ready to identify cases wherein the state (arguably) has not satisfied the said obligations. Given the nature of these types of claims, this word of warning may be unrealistic in practice; nevertheless, anyone employed by or acting for a police force or local authority would certainly be wise to take heed of this case.