Re P - Forced Marriage Protection Orders / Jurisdiction
This case concerns the jurisdiction of the court to make a Forced Marriage Protection Order. The full judgment (which is published as Re P (Appeal: Forced Marriage Protection Order: Jurisdiction)) is on Bailii here.
The Forced Marriage (Civil Protection) Act was passed in 2007 and came into force the following year. It was brought into effect by amendment to the Family Law Act 1996, taking its place within the general scheme of family law injunctions (e.g. non-molestation orders) that are provided for within that act. There are no specific jurisdictional provisions, which in theory makes it possible to approach the act in two ways - firstly as having no particular jurisdiction test, or alternatively as deriving its jurisdictional underpinning from elsewhere (though it is not clear from where…).
That is the issue that arose on this appeal, particularly because whilst the respondent to the application for a Forced Marriage Protection Order (hereafter “FMPO”) lives in England, the applicant lives (and has always lived) in the USA.
Background
The background is set out within the judgment at paragraphs 6 - 13. The important aspects of the background are probably the following:
Both parties are of Pakistani descent, however the applicant lives and has always lived in the USA, whilst the respondent was born in Pakistan and holds dual Pakistani and British citizenship. He was living in England prior to the parties marriage, and continued to live in England at the time of the proceedings.
In 2013, the applicants father died. In April 2014, her mother told her that the family would be travelling to Pakistan to visit her father’s gave. Whilst there, the intention was that they would stay in the respondent’s family home.
In May 2014, the applicant overheard a discussion during which it was mentioned that her older brother was to marry the respondent’s sister. That was a surprise to the applicant and, it seems, to her siblings.
The following day, the applicant noticed preparations being made for a large feast. She assumed this was in connection with the ceremonies surrounding her father’s death, however she was then told that she should get dressed and prepare for her wedding to the respondent. She had not previously been told of any plan for her to marry the respondent, who she had never met. She was unable to oppose the plan, and was told that if she did not comply she would be locked in her bedroom until the ceremony.
Later that day, the marriage ceremony was performed by an imam. Photographs were taken to support an application for a UK spousal visa for her.
The respondent told the applicant that he wanted her to come to the UK, but not to tell Border Force on her arrival that she was married to him. Instead, she was to tell them that she was visiting a cousin. She arrived in July 2014 and was questioned by Border Force officials, eventually admitting that she was married to the respondent. She was denied entry, and booked onto a flight to the USA to leave three days later. She was permitted to stay at the respondents home whilst waiting for that flight, as she had nowhere else to go. Whilst there, she was raped by the respondent, resulting in her becoming pregnant.
In January 2015, she told the respondent that she wished to divorce. In April 2015, she gave birth to a boy. He has never had contact with his father.
The applicant attempted to nullify the marriage in the USA, but her petition was dismissed as neither she nor the respondent attended the hearing. That was because the court changed the date for the hearing and failed to inform her. She was advised that it would be difficult to divorce the respondent as the marriage was forced.
The applicant last saw the respondent in July 2014. Her application was brought because since that date he had repeatedly harassed her. She had been unable to obtain injunctive relief in the USA as the respondent did not live there, and the police in the USA would take no action against him.
Accordingly, the applicant applied in England for an FMPO.
The proceedings and the decision at first instance
The applicant’s application came before the judge on 1 November 2022, when it was adjourned until 2 November 2022 to allow the applicant’s representative to clarify the position in relation to jurisdiction (a point which had been raised by the judge during the hearing). On 2 November, the judge gave a judgment refusing the application for want of jurisdiction. The judgment included the following:
“5. I've discussed this case with HHJ Sapnara who was one of the architects of the FMPO as to whether or not there is some mechanism by which I might find sitting as Deputy Judge of the High Court to have any jurisdiction. There is no doubt that the applicant is a deserving litigant. Re K does not help Ms Asif but what she submits is this, that the legislation does not prohibit me making an order, but it is plain on the face of the FMPO legislation who can be protected. The FMPO legislation was inserted in the FLA 1996 [Family Law Act]. It was inserted by [the] Forced Marriage Civil Protection Act 2007. Nowhere does it suggest that the Court, most unusually, can make orders to protect foreign citizens who are not in the UK. If [P] was in the UK I would be able to make [an] order. She is in [the United States] and it would be expensive and troublesome for her to travel, however she is not in the jurisdiction; neither is she a British citizen.
6. I have a very wide discretion as to the nature and extent of my jurisdiction. I read from the Red Book [The Family Court Practice]; I have power to make wide prohibitive orders to safeguard the person to be protected. Applications and other occasions for making orders is dealt with under section 63C FLA 1996. The court may make [an] order [on an] application being made by the person to be protected or that, of course, of a relevant third party. When I look at [the] note underneath that part of [the] legislation, the person to be protected; the applicant must be able to establish, especially when the person is not within [the] jurisdiction, that the applicant and respondent are in direct contact and the PTBP [person to be protected] had been living in [the] jurisdiction shortly before the application was made. In Re KBH (Forced Marriage Protection Order: Non-resident British Citizen) [2018] EWHC 2611 (Fam) the Court dealt with protection for a non-resident person. In that case the application was made by siblings who were British citizens and [the] Court declined to make orders. There is an enormous amount regarding orders for people with or without capacity. There is no question this legislation is not designed nor is likely to be designed to protect foreign citizens. The applicant either needs to be in this jurisdiction or a citizen and on that basis I decline the application as I do not have jurisdiction to hear it.
7. I make it plain for [the] avoidance of doubt, in the hope that it may help the applicant, if I did have jurisdiction, I would have no difficulty in finding this was a forced marriage and that the applicant needs protection from harassing behaviour."
The legislative scheme
The terms of the relevant part of the Family Law Act 1996 is set out within the judgment beginning at paragraph 22. The relevant parts are the following:
Section 63A - entitled "Forced Marriage Protection Orders" - reads as follows:
(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 enter into a marriage is directed against A, B or another person.
(6) In this Part –
"force" includes coerced 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.
Section 63B provides for the contents of orders as follows:
(1) A forced marriage protection order may contain –
a) such prohibitions, restrictions or requirements; and
b) such other terms:
as the court considers appropriate for the purposes of the order.
(2) The terms of such orders may, in particular, relate to –
a) conduct outside England and Wales as well as (or instead of conduct within England and Wales;b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who force or attempt to force, or may force or attempt to force, a person to enter into a marriage;c) other persons who are, or may become, involved in other respects as well as respondents of any kind.
(3) For the purposes of subsection (2) examples of involvement in other respects are –
a) aiding, abetting, counselling, procuring, encouraging or assisting another person to force, or to attempt to force, a person to enter into a marriage; or
b) conspiring to force, or to attempt force, a person to enter into a marriage.
Section 63C - entitled "Applications and other occasions for making orders" - provides relevantly as follows:
(1) The court may make a forced marriage protection order –
a) on an application being made to it; or
b) without an application being made to it but in the circumstances mentioned in subsection (6).
(2) An application may be made by –
a) the person who is to be protected by the order; or
b) a relevant third party.
(3) An application may be made by any other person with the leave of the court.
(4) In deciding whether to grant leave, the court must have regard to all the circumstances including –
a) the applicant's connection with the person to be protected;
b) the applicant's knowledge of the circumstances of the person to be protected; and
c) the wishes and feelings of the person to be protected so far as they are reasonably ascertainable and so far as the court considers it appropriate, in the light of the person's age and understanding, to have regard to them.
(5) An application under this section may be made in other family proceedings or without any other family proceedings being instituted.
(6) The circumstances in which the court may make an order without an application being made are where –
a) any other family proceedings are before the court ("the current proceedings");
b) the court considers that a forced marriage protection order should be made to protect a person (whether or not a party to the current proceedings); and
c) a person who would be a respondent to any such proceedings for a forced marriage protection order is a party to the current proceedings.
There have been a number of cases considering the terms of the Act, beginning with the decision of Sir Nicholas Wall, P, in Chief Constable and AA v YK and others [2010] EWHC 2438 (Fam). At paragraphs 17 and 18, Sir Nicholas held as follows:
"17 Two aspects of the Act are immediately striking. The first is that it is very widely drawn. It is extra-territorial in its application and orders may be both made and discharged ex parte. Secondly, the Act plainly creates a protective/injunctive jurisdiction. Its object is to prevent forced marriages by protecting those who may be, or have been, forced into marriage…."
He went on to state that:
"18 Although the court is required to take into account "all the circumstances" when deciding whether or not to make an order there is nothing in the Act which requires the court to apply any given criteria beyond the matters identified in section 63A(2). There is, moreover, nothing in the Act to stop the court acting on hearsay evidence, or information provided to it by the police which has not been disclosed to the respondents."
In Re K (Forced Marriage: Passport Orders) [2020] EWCA Civ 190, the Court of Appeal held:
"30 All of the parties are agreed that the legislation is cast in the widest and most flexible terms. FLA 1996, s 64A simply gives the court jurisdiction to make an order for the purposes of protecting a person from being forced into a marriage, or from any attempt to do so, or protecting a person who has been forced into a marriage. 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" (s 63A(2)).
31 By FLA 1996, s 63A(3) there is a requirement that "in ascertaining that person's well-being, the court must, in particular, have 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."
32 In contrast to some other similar provisions, Parliament has neither imposed a threshold criteria nor a checklist of factors that the court is required to consider. Further, in the context of the present case, it is of note that the person's "wishes and feelings" are expressly positioned as part of "that person's well-being" rather than as a specific factor in their own right. Further, with regards to "wishes and feelings" the court is given a wide discretion to have regard to that factor "as the court considers appropriate in the light of the person's age and understanding".
33 The court was taken to extracts from the Parliamentary debate as recorded in Hansard. The purpose of that reference was not to assist in interpretation but merely to illustrate that the broad and flexible jurisdiction given to the court by the wording of the Statute reflects the tone and content of the debate.
34 The jurisdiction is for the purposes of protecting "a person" (s 63A(1)). The word "person" is not further defined. It is not limited by any reference to age. Importantly, there is no reference to the person's capacity to make decisions...".
The decision on appeal
Mrs Justice Knowles, who heard the appeal, begins her discussion of the issues at paragraph 35, as follows:
“My analysis of the legal framework has led me inexorably to the conclusion that I should allow the appeal because the Judge was mistaken in concluding that she lacked the jurisdiction to make a FMPO with respect to P. I make it plain that I do not criticise the Judge in any way as the issues raised by this case were unusual and had not been expressly considered by a higher court to date”
In summary, the reasons given by Knowles J in support of that conclusion (which, for whatever my opinion might be worth in this regard, is plainly right) are as follows:
The Act is drafted in wide terms, and is intended to be flexible in its operation. The only specific thing that a court is required to do when deciding whether or not to make an FMPO is to take account of “all the circumstances” (para. 36)
The Act expressly has extraterritorial effect per S63B(2). There is no other statutory source of or limit upon jurisdiction to make orders under that Act (para. 37)
The criminal offence of forced marriage (S121 Anti-Social Behaviour, Crime and Policing Act 2014) concerns conduct or deception outside of England and Wales in circumstances where at least one of either the victim or the perpetrator is habitually resident in England and Wales or at least one of them is a UK national (para 38)
The Act would fail in its protective function if a more restrictive approach were applied (para. 39)
That interpretation is consistent with the earlier decisions, and entirely on all fours with the spirit of Re K and Chief Constable and AA v YK and Others (para 40)
Knowles J concluded her discussion as follows:
“I observe that this interpretation of the Act's wide and protective jurisdiction sends two clear messages which are of real importance. First, victims abroad who are forced into marriage with a British national or someone habitually resident here may be able to avail themselves of protective orders in this jurisdiction to counter such abusive behaviour and mitigate its harms. Second, British nationals or those who are resident here should be aware that they cannot force a person into marriage and escape legal sanction for their behaviour in the family court merely because their victim is neither habitually resident nor a British national. Forced marriage is a global phenomenon with many forced marriages in the UK having an international dimension. In a world of global social media, it is possible for perpetrators to continue their abuse online with easy access to their victim, wherever their victim is based and whatever the nationality of their victim. This purposeful interpretation of the Act's jurisdiction permits the courts to exercise their protective jurisdiction to safeguard victims, wherever they are based and whatever their nationality.”
Analysis
In a sense, the judgment of Knowles J says all that is needed to be said about this issue. It is very difficult to understand why a jurisdictional issue arose in this case. The respondent, who it was alleged had engaged in conduct from which the applicant required protection, which arose directly from a forced marriage, was in England. He was therefore within the jurisdiction of the court. The orders could be made against him, served upon him and, if he breached them, enforced against him including by his arrest and charge for breach of an FMPO. It is very difficult to understand why the whereabouts of the applicant assumed any relevance when those facts, which were indisputable in the context of this case, were so clear.
Nonetheless, that is what happened . Looking at the Act, it seems plain that there is no jurisdictional ‘hurdle’ that must be surmounted. None is mentioned, there is no other source of jurisdiction or limitation upon the exercise of jurisdiction within any other statute, and this is an entirely statutory jurisdiction - there is no basis upon which to go back to find a common law test.
One way of describing the jurisdiction that the court has is that it is an in personam jurisdiction in relation to the people involved. If there were no connection at all between the UK and the people involved in the application, of course the outcome may be different. If the court could make an order but had no way of enforcing it, again there might be a different outcome. But the respondent in this case was plainly well connected with this jurisdiction, the judgment could be enforced against him under the Act and the applicant was in need of protection.
