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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> CITY OF EDINBURGH COUNCIL AGAINST M.S. AGAINST RE A.S.  ScotSC 20 (13 March 2015)
Cite as:  ScotSC 20
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SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
SHERIFF WENDY A SHEEHAN
in the cause
THE CITY OF EDINBURGH COUNCIL
EDINBURGH, 3 March 2015
The sheriff having resumed consideration of the cause;
Finds in Fact
FINDS IN FACT AND LAW
(1) This is an application by Edinburgh City Council (hereinafter “the applicants”) for a Forced Marriage Protection Order under section 1 of the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 (hereinafter “the 2011 Act”) regarding a 15 year old girl AS (the protected person). The first respondent MS is her father. The second respondent NS is her mother.
(2) The applicants aver that there is a risk that the protected person will be forced into marriage or that an attempt will be made to force her into marriage by the respondents and that there is a clear evidential basis from which that risk may be inferred.
(3) In February 2012 a referral was made by the Public Protection Unit of Lothian and Borders Police to Edinburgh City Council Social Work Department in relation to concern regarding the possibility of AS being forced into marriage. The referral was triggered by a police statement (20/3 of process) given by the protected person’s sister KS in which she alleged that the respondents had forced her into marriage when she was aged 16 years (four years previously). A subsequent statement (44/4 of process) was taken from KS by DS Keith Dickson over two days on 8 March 2012 and 17 April 2012. Those police statements formed the basis for the initial referral and investigations undertaken by police and the social work department. The information contained therein forms the cornerstone of this application. The respondents deny that they forced their daughter KS to marry and aver that she married her second cousin BA on 27 March 2008 of her own free will and that she chose the timing of her wedding which they arranged and paid for at her request.
(4) Between 21 February 2012 and 13 July 2013 the social work department made enquiries which included obtaining background information from police records, speaking with teachers at the protected person’s school and obtaining information from a social worker allocated to KS’s daughter DB (the protected person’s niece resident in the same household as her). Those enquiries and discussions took place with reference to the Scottish Government statutory guidance on Forced Marriage and the multi-agency Practice Guidelines (numbers 40/1 and 40/2 of process).
(5) The statutory guidance recommends that professionals consider certain “warning signs” indicative of an increased risk to the protected person including inter alia; changes in presentation at school including truancy, declining performance or punctuality, low motivation or poor exam results, being withdrawn from the school by those with parental responsibility or not being allowed to attend extra-curricular activities. There may be a change in the protected person’s peer relationships, in their dress and appearance, they may appear isolated or there may be issues such as self-harm, depression, eating disorders or attempted suicide. None of these warning signs were observed in relation to the protected person in this case.
(6) The statutory guidance advises professionals to be alert to any family history of the protected person’s siblings being forced to marry, family disputes in relation to marriage, siblings running away from home or reports of domestic abuse or breaches of the peace at the family home. Police records disclosed two incidents involving the protected person’s elder sister FS on 31 January 2007 and 27 February 2007, where FS sought police assistance regarding her parents arranging a marriage for her when she did not want to get married and in terms of which she alleged controlling and abusive behaviour on the part of the respondents towards her in order to pressurise her into getting married. The applicants aver that pressure was brought to bear on FS by her parents to marry her cousin IA (son of the first respondent’s half-brother MA) over a period of months in late 2006/early 2007 as a result of which FS left home. The respondents aver that a marriage proposal was put to their daughter FS twice in late 2006. The said proposal was received from MA the first respondent’s half-brother and concerned his son IA. However, they aver that they respected their daughter’s decision not to marry and that no pressure was brought to bear upon FS regarding that proposed marriage. FS married a man of her choosing KS on 27 March 2008.
(7) The applicants aver that there is a history of forced marriage, violence and threatening conduct within the first respondent’s wider family which impacts on the assessment of risk in this case. The respondents minimise and distance themselves from the conduct of the first respondent’s family. They also aver that they have been resistant to threats and pressure brought to bear by members of that family regarding the marriages of two of their children.
(8) The applicants aver that the respondents have behaved in a controlling manner in respect of the parenting of their children and in particular with regard to their daughters FS and KS. They found on incidents resulting in police involvement with the family in relation to their daughter FS in 2007 and in relation to their daughter KS in 2012. They also found on the second respondent’s attempt to obtain a guardianship order in relation to her daughter KS in October 2012 in order to secure her daughter’s return home and gain control over her welfare and financial affairs and KS’s evidence regarding the respondents conduct towards her. This behaviour is either denied by the respondents or put into a context where it is not linked to their daughters’ marriages. They aver that there is no risk of the protected person being forced into marriage and that the granting of an order is unnecessary.
(9) Section 1(3) of the 2011 Act directs the court to have regard to the protected person’s wishes and feelings when ascertaining their wellbeing in terms of section 1(2). The protected person has spoken with Jane Maltman, social worker regularly since August 2013. She has had access to an advocacy worker from Barnardos. She consulted solicitors in July 2013 and was represented by counsel at proof. She is a mature and articulate 15 year old. She instructed her solicitors to lodge answers in opposition to the granting of the order. She gave clear evidence that in her view there is no need for the order to be granted and that she regards it as unwelcome and intrusive.
(10) This action was raised on 18 July 2013. Interim orders were granted on an ex parte basis and are set out in the warrant for citation. The respondents were ordered to refrain from forcing or attempting to force the protected person into a marriage and required them inter alia; to disclose to the court information regarding any travel plans for the protected person, to refrain from taking her out of the UK and to submit her passport, birth certificate and any travel documents to the court. They were also required to allow social workers to have access to the protected person for the purposes of monitoring her wellbeing. No motion for recall of said orders and interim has been made. The order has been obtempered in all respects. The court holds the protected person’s passport.
(11) On 16 June 2014 applications were granted under section 12(2) of the Vulnerable Witnesses (Scotland) Act 2004 and in terms of section 12(1) thereof authorised the use of the following special measures in terms of section 21 of the said Act viz: (i) that the protected person should be accompanied by a supporter from Barnardos Children’s Rights (ii) that both the protected person and KS should give evidence in person in an informal setting, wigs and gowns should be dispensed with by the parties representatives and the sheriff, those present should be seated around a table, the number of persons should be kept to a minimum, each party should be represented only by either their agent or counsel conducting the diet of proof and parties and their other representatives should not be present.
(12) Proof was heard on sixteen days over September and November 2014. I am indebted to the applicants in respect of the affidavits lodged which represented the bulk of the examination in chief of 7of their witnesses. This resulted in a significant saving of court time. The witnesses concerned all attended court, supplemented their affidavits with oral evidence and were subject to cross examination. The protected person and KS both gave evidence. Not only were the respondents absent from the courtroom when the protected person and KS gave evidence but they remained in a different part of the building. Arrangements were made for the witnesses to be escorted in and out of court without any contact with the respondents or other family members. The respondents’ counsel encountered difficulties in relation to aspects of cross examination of the protected person and KS as the scope of their evidence went beyond the averments on record and the evidence was heard outwith the presence of the respondents. Insofar as possible steps were taken to enable their agents to take instructions during the course of the proof.
(13) Written submissions were lodged by counsel (55, 56, 57 and 58 of process) and were supplemented by oral submissions over two days. I am indebted to counsel for their thorough and considered submissions relating to all aspects of this case which I have carefully considered. I do not intend to narrate the terms the submissions in detail in this judgment in the interests of brevity and in order to meet the requirements of section 50 of the Sheriff Courts (Scotland) Act 1907, which requires this matter to be disposed of summarily.
(14) This is an application under the Forced Marriage Etc (Protection and Jurisdiction) (Scotland) Act 2011 (hereinafter “the 2011 Act”). The 2011 Act came into force on 28 November 2011. The relevant provisions are as follows:
1. Forced marriage protection orders
(1) The court may make an order for the purposes of protecting a person (a “protected person”)—
(a) from being forced into a marriage or from any attempt to force the person into a marriage, or
(b) who has been forced into a marriage.
(2) In deciding whether to make such an order and, if so, what order to make, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the protected person.
(3) In ascertaining the protected 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 on the basis 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—
(a) coerce by physical, verbal or psychological means, threatening conduct, harassment or other means,
2 Contents of orders
(1) A forced marriage protection order may contain such—
(a) prohibitions, restrictions or requirements, and
(b) other terms,
as the court considers appropriate for the purposes of the order.
(2) The terms of such an order may, in particular, relate to—
(a) conduct outwith (as well as, or instead of, conduct within) Scotland,
(b) persons who force or attempt to force, or may force or attempt to force, a protected person to enter into a marriage,
(c) persons who are, or may become, involved in other respects.
(3) A forced marriage protection order may, among other things, require a person—
(a) to take the protected person to a place of safety designated in the order,
(b) to bring the protected person to a court at such time and place as the court making the order may specify,
(c) to refrain from violent, threatening or intimidating conduct (whether against the protected person or any other person),
(d) who is a person such as is mentioned in subsection (2)(b) or (c), to appear in court,
(e) to disclose, if known, the whereabouts of such a person,
(f) to refrain from taking the protected person from, or to, such place as the court may specify,
(g) to facilitate or otherwise enable the protected person or another person to return or go to such place (whether in Scotland or another part of the United Kingdom) as the court may specify within such period as may be so specified,
(h) to submit to the court such documents (including passports, birth certificates or other documents identifying the person and travel documents) as the court may specify,
(i) to provide the court with such other information as it may specify.
3 Applications for orders
(1) The court may make a forced marriage protection order on an application being made to it by—
(a) the protected person, or
(b) a relevant third party.
5 Interim orders
(1) The court may, in a case where it considers that it is equitable to do so, make a forced marriage protection order in the absence of a person who is, or would be, a party to proceedings for the order (and may do so whether or not the person has been given such notice of the application for the order as would otherwise be required by rules of court).
(2) An order made by virtue of subsection (1) is an “interim forced marriage protection order”.
6 Duration of orders
This sectionnoteType=Explanatory Notes has no associated
A forced marriage protection order has effect—
(a) where the order specifies a period for which it is to have effect, until the expiry of that period (unless the order is recalled under section 7 or extended under section 8),
(b) where no such period is specified, until the order is recalled under section 7.
7 Variation and recall of orders
This sectionnoteType=Explanatory Notes has no associated
(1) The court may vary or recall a forced marriage protection order on an application by—
(a) any person who was or, in the case of an order made by virtue of section 4(1) or 5(1), would have been a party to the proceedings for the order,
(b) the protected person (if not such a person),
(c) any other person affected by the order, or
8 Extension of orders
This sectionnoteType=Explanatory Notes has no associated
(1) This section applies where a forced marriage protection order specifies a period for which it is to have effect.
(2) Before the expiry of the period, a person mentioned in subsection (3) may apply to the court for an extension of the order.
(3) The persons are—
(a) any person who was or, in the case of an order made by virtue of section 4(1) or 5(1), would have been a party to the proceedings for the order,
(b) the protected person (if not such a person),
(c) any other person affected by the order, or
(d) with the leave of the court only, any person not falling within paragraphs (a) to (c).
9 Offence of breaching order
This sectionnoteType=Explanatory Notes has no associated
(1) Any person who, knowingly and without reasonable excuse, breaches a forced marriage protection order commits an offence.
(2) A constable may arrest without warrant any person the constable reasonably believes is committing or has committed an offence under subsection (1).
(3) Subsection (2) is without prejudice to any power of arrest conferred by law apart from that subsection.
(4) A person guilty of an offence under subsection (1) is liable—
(a) on summary conviction, to imprisonment for a period not exceeding 12 months, to a fine not exceeding the statutory maximum, or to both,
(b) on conviction on indictment, to imprisonment for a period not exceeding 2 years, to a fine, or to both.
13 Amendment of Children’s Hearings (Scotland) Act 2011
(3) In section 67(2) (meaning of “section 67 ground”)—
“(q) the child—
Anti-social Behaviour, Crime and Policing Act 2014
122 Offence of forced marriage: Scotland
This sectionnoteType=Explanatory Notes has no associated
(1) A person commits an offence under the law of Scotland if he or she—
(a) uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and
(b) believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.
(9) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine or both.
(15) There are, as yet, no issued decisions in Scotland regarding the application or interpretation of the 2011 Act. The policy memorandum relating to the 2011 Act (57 of process) identifies the objective of the legislation as being to ensure that people who are eligible to marry or enter a civil partnership have the right to do so freely and without coercion and to protect citizens from pressure, harassment or threats aimed at forcing them into a marriage or civil partnership to which they have not consented or to which they are not capable of consenting. The Statutory Guidance issued by the Scottish Government (40/1 of process) emphasises that Forced Marriage Protection Orders are designed to protect adults and children at risk of being forced into marriage. The legislation introduces a protective remedy akin to interdict. Third parties, in this instance Edinburgh City Council, are given a statutory right to seek protective remedies on behalf of an individual (the “protected person”).
(16) Section 1(2) of the 2011 Act is very widely drawn and simply provides that “the court must have regard to all the circumstances including the need to secure the health, safety and wellbeing of the protected person”. There is nothing in the Act which requires the court to apply any criteria beyond the matters identified in the section.
(17) Section 5 of the 2011 Act, which deals with interim orders, provides that when deciding whether to make an interim order “the court must have regard to all the circumstances including any risk of significant harm to the protected person”. This provision is not repeated in section 1 which deals with the granting of final orders.
(18) The court requires to consider whether the order sought is proportionate with regard to the ECHR in respect of the rights of the protected person and the respondents and in particular, to consider the impact of the order sought on their Article 8 rights. It must also be borne in mind that criminal penalties arise in the event of a breach of any order granted.
(19) The burden of proof lies on the applicant. The standard of proof is the balance of probabilities.
(20) The basis upon which the court is invited to conclude that an order is required to secure the health, safety and well-being of protected person is primarily based on an assessment of the evidence of the circumstances surrounding the marriages of her siblings. Comprehension of much of that evidence requires an understanding of the first respondent’s family relationships. “A family tree” (45 of process) was prepared by the respondents and was spoken to in evidence by a number of members of the S family. Surprisingly, there was contradictory evidence as to the family relationships between a number of the individuals shown in the document and a number of material omissions from the document.
(21) In brief, MS the first respondent’s father was married twice. The first respondent has two sisters and two half-brothers. In the context of the evidence in this case, his half-brothers are more significant. His half-brother MA has three children, a son IA and two daughters SA and RA. The first respondent’s half-brother MK married SK and has eight children including a son KK and daughters SK and NK. All of those individuals featured at various points in the evidence.
(22) The first respondent entered into an arranged marriage. There was no evidence in relation to the name of his first spouse or the date of the marriage. He was divorced by the Sharia Council in London in or around 1983.
(23) The second respondent also entered into an arranged marriage to MI who was a relative of her father. Puzzlingly, the second respondent appeared to struggle to recall her first husband’s name, his relationship to her parents and the dates of either her marriage or divorce. Her evidence was that she was aged 16 or 17 at the time of her first marriage, that she did not meet her husband before their wedding and that the marriage was proposed and arranged by her parents. She consented to it. She separated from her husband within a matter of months and was divorced by the Sharia Council in London in around 1984 when she was nineteen years old.
(24) The first and second respondents met in 1983. They worked together. They married the following year. The second respondent could not recall the date of the wedding. The respondents entered into a “love marriage” in the face of a certain amount of opposition from the first respondent’s family. The respondents are from different areas of Pakistan; the first respondent being from Kashmir and the second respondent from Rahim Yar Khan. They belong to different castes. The first respondent’s family took some time to accept the second respondent. There is a culture of arranged marriages to members of the extended family within the first respondent’s family.
(25) The respondents have five children:
(26) In May 2006 the first respondent’s half-brother MA contacted him to propose the marriage of his son IA to the first respondent’s daughter FS. FS was aged 21 at that time. The respondents discussed this marriage proposal with their daughter FS. She refused to marry IA. Conflict arose within the household in consequence of this. There was conflicting evidence regarding this chapter of evidence which related to events between May 2006 and February 2007 inclusive. The applicants led evidence from PC Louise Botha who referred to information recovered from police records (44/1, 2 and 3 of process), also referred to in her affidavit (41/2 of process). The second respondent gave evidence as did FS. There were issues with aspects of both reliability and credibility of FS and NS’s evidence.
(27) The undisputed facts are as follows:
After the marriage proposal was discussed by the S family in May 2006, the first respondent was unhappy with his daughter’s refusal to marry her cousin IA. He faced a certain amount of pressure from his family to arrange the marriage. He thought that the marriage was a good idea. There were arguments between the first and second respondents regarding this as the second respondent supported her daughter’s decision. On 29 May 2006 following a particularly heated argument between the respondents, the second respondent called the police. The second respondent left the family home with her three daughters with police assistance at around 12.00 am. During this argument the first respondent shouted, swore and behaved in an abusive manner. It took the first respondent some months to accept his daughter’s views on the proposed marriage to her cousin. In late 2006 the first respondent’s mother became terminally ill. She articulated that her dying wish was to see FS marry IA. Further pressure was brought to bear by the first respondent’s family and the proposal was discussed with FS on a second occasion. She refused again. FS contacted her cousin SK in Birmingham. SK fuelled her anxiety regarding the prospect of her being pressured into marrying IA. FS left the family home in Edinburgh and moved to the Birmingham area where she obtained a job and remained until late 2007. She remained in touch with her family throughout 2007. They were aware of her whereabouts. In November 2007 she became engaged to KSh. Her parents were supportive of this engagement and arranged her wedding. KSh was a spouse of her own choosing.
(28) The disputed evidence related to the alleged conduct of the respondents towards FS between 24 January 2007 and 27 February 2007 inclusive. FS made three separate reports to the police during this timeframe. On 24 January 2007 FS contacted the police seeking advice and help as “her father MS wished her to enter into a marriage in the near future to a cousin on her father’s side and she was refusing to do so”. FS told the police that she was leaving home as a result and apparently made contact with the police at this stage to notify them of the situation in case her parents reported her as a missing person. They did not do so. She advised the police call handler on that occasion that she felt “trapped and controlled”. On 1 February 2007 she called the police at 14.48 reporting that she had been locked in the family home by her parents, that all keys and phones had been removed (she had located a phone and SIM card without her family’s knowledge to call the police). She required police assistance to leave the property. Police officers attended and OS answered the door which was unlocked. FS left with police officers and gave a statement (20/1 of process) in relation to alleged pressure brought to bear upon her by her parents regarding the proposed marriage to her cousin. She did not wish criminal charges to be brought against her parents. The matter was not further investigated and her statement was neither verified nor cross checked in any way. On 27 February 2007 FS contacted the police to obtain assistance in attending the family home to retrieve belongings. She was duly assisted. Nothing further is reported regarding this incident.
(29) On 19 April 2012 FS provided a statement to the police in the context of this case. (Her statement is number 49/2 of process). An affidavit of the officer who took the statement and a copy of the handwritten statement are (lodged 42 of process). DS Keith Dickson travelled to Birmingham with a colleague and spent approximately two hours with FS in order to take that statement. This was part of an information gathering exercise for the purpose of assessing the risk of honour based violence to KS. The statement was read over to FS slowly and signed by her. I accepted DS Keith Dickson’s evidence regarding this. FS said in her evidence that the statement was not read to her in full and contained things that she had not said. She accused DS Keith Dickson of manufacturing aspects of the statement. FS’s evidence was that she lied to the police on 1 February 2007 and 27 February 2007. She said that her cousin SK had influenced her and caused her to worry that pressure may be brought to bear upon her by her parents to marry her cousin. She decided to leave home and contacted the police for assistance. She said that she lied to the police in order to obtain their help. She expressed regret and remorse for her actions. It seems strange, to say the least, that this aspect of events was not touched upon in her police statement of 19 April 2012 when police officers from the Public Protection Unit specialising in forced marriage and honour based violence spent more than two hours with her taking a statement from her in the context of assessing the risk to her sister of honour based violence linked to an alleged forced marriage.
(30) There is quite simply no reliable and credible evidence that the respondents attempted to force FS to marry her cousin. At its highest, the applicants’ case regarding this aspect founds on the evidence of PC Louise Botha who spoke to police records of reports made by FS on the 24 January 2007 and 1 February 2007. FS now states that these reports were untruthful. She is a witness who has lied to the police on more than one occasion. Her statements were not verified or cross checked in any way. Despite having stated that she had no access to phones and that she was locked in the house she called the police herself and on their arrival the house was unlocked. Further, there is clear evidence that when her father expressed a wish that she should proceed with the marriage, her mother intervened and defended her position to the point that she sought police assistance and left the family home with her daughters after a heated argument with her husband in order to protect her daughters from further conflict. The respondents did not take steps to secure FS’s return home after 1 February 2007 and remained in touch and on good terms with her throughout that year. They supported her in her choice of husband later that year and arranged her wedding for her.
(31) In November 2007 an engagement party was held for FS at her parents’ home. Family and friends of both the bride and groom attended. The groom did not attend. He lived in Pakistan and did not have a visa to travel. His siblings and extended family attended. His sister placed the ring on FS’s hand. Gifts were exchanged. The wedding between FS and KhS was planned for 27 March 2008 in Pakistan.
(32) In or around late February/early March 2008 the first respondent and his son OS travelled to Pakistan. While there OS became engaged to and married SA (daughter of the first respondent’s half-brother MA). The wedding took place in early April 2008. No evidence was given regarding specific dates and arrangements involved. The marriage took place with the consent of both OS and SA. There was no evidence of parental influence or pressure being brought to bear on either spouse regarding the marriage.
(33) KS married her second cousin BA in Pakistan on 27 March 2008. Her wedding took place alongside that of her sister FS. The cornerstone of the applicant’s case is the assertion that KS was forced to marry BA by the respondents. KS gave evidence over four days. She is a vulnerable young woman in a number of respects. She is estranged from her family. There was no supporting evidence of her account of events.
(34) KS acquired a diagnosis of learning disability at the age of eight. At the age of twelve she was assessed by an educational psychologist and an occupational therapist in the context of considering her educational needs. (The relevant report is 25/3 of process). KS had difficulties with her vision, hearing and oral communication. She lacked confidence and struggled to fit into her peer group. She had significant difficulties with her motor skills. Her IQ was assessed at 74 and she was assessed as having generalised learning difficulties. She required a significant level of learning support. Her mother did not think that KS had the necessary skills to cope in mainstream secondary school. Some of her concerns were shared by the educational psychologist assessing KS at that time. KS attended a specialist school for pupils with complex learning difficulties. KS’s GP reported that at 15 or 16 KS attended her surgery regularly reporting headaches, stomach upsets and pseudo seizures. Her GP regarded this to be a manifestation of stress or attention seeking behaviour. In 2011 her GP was consulted by KS who was suffering from health difficulties relating to stress. She referred KS both to psychiatric services and to the Community Learning Disabilities Team for assessment. Her GP did not recall any reports being sent to her in respect of these assessments once carried out. There was no psychiatric follow up. KS gave evidence that the Community Learning Disabilities Team assessment concluded that as an adult, she is not regarded as having learning difficulties. This assessment is referred to in social work records in 2012. No report was produced or spoken to. Dr Curtis, her GP assessed KS and provided a letter dated 13 November 2012 (35/3 of process). Her opinion was that KS is capable of independent living, capable of actively communicating and understanding decisions including those about property or financial affairs or her personal welfare. That assessment was provided in the context of consideration of the appropriateness of an application for a Guardianship Order by her mother.
(35) When asked about any dissonance between KS diagnosis in 2003 and her assessment in 2012, Dr Curtis considered that they were capable of being reconciled. While KS has a low IQ this is within the normal range. As she has matured her confidence has grown and she is able to form and express opinions and stand up for herself. Dr Curtis was not asked to comment on whether KS’s history of learning difficulties may impact upon her memory, concentration and oral communication skills which would be under a significant level of scrutiny during the four days of her evidence in this case. In summary, KS is a young woman with a low IQ (albeit within normal range), who has a history of learning difficulties which impact upon her memory, cognitive skills and oral communication. No updated assessment of her was available to the court at proof. She continues to receive benefits in recognition of a level of incapacity. Her medical records also disclose that she has a history of attention seeking behaviour.
(36) KS has a troubled relationship with her parents. During the early years of her childhood she spent a significant amount of time with her father’s half-brother MK and his wife SK. They were her primary carers for a period in her early childhood. She readily admitted to feeling anger and jealousy regarding her parents treatment of her compared to that of her siblings. There has been no communication between KS, her parents and her siblings for almost three years. Dr Curtis assessed the second respondent as being a powerful advocate for her children but also as someone who was protective and controlling of KS. She viewed the second respondent as well intentioned but as someone who struggled to accept KS as a functioning adult and regarded her daughter as a child with learning difficulties who should be protected from outside influences and her own poor decision making. This caused significant friction in the mother/daughter relationship as KS approached adulthood and sought independence. In autumn 2012 the second respondent took legal advice and sought the assistance of Dr Curtis with a view to obtaining welfare and financial guardianship of KS. Her evidence was that she did so to “achieve some sort of order for her to remain with her family because of her condition” and to “gain control over her welfare and guardianship”. Her solicitor’s letter (35/12 of process) dated 8 November 2012 demonstrates at best, her flawed perception of her daughter’s level of functioning and at worst, her willingness to exaggerate and deceive professionals regarding her daughter’s medical history in order to achieve her objectives. In her evidence at proof when asked why she had told her solicitor that KS was schizophrenic when no such diagnosis had been made she responded “well there is something wrong with her”.
(37) It is against this context that I must assess KS’s evidence of her being forced into marriage in March 2008. There is no supporting evidence of her account. There are issues with the reliability and credibility of her evidence. As one would expect, the respondents and KS’s siblings give a different account of events. There are also issues with the reliability and credibility of their evidence in a number of respects. I accept the applicants’ submission that the fact that a witness lies about one matter in his or her evidence does not necessarily mean and he or she has lied about everything. I also accept that particularly in a case of this nature, a witness may lie for many reasons including distress, anxiety, pressure, shame or family honour.
(38) KS was married in March 2008. She first alleged that she had been forced into marriage when giving a police statement on 20 February 2012 (20/3 of process). The context for this statement was that KS had left the family home on 18 February 2012 to cohabit with a new partner AA. Her parents reported her and her daughter DB, who was almost two years old at that time, as missing persons. The police traced KS to her new address and asked her to attend Corstorphine Police Station to provide a statement. She did so voluntarily. The circumstances surrounding this statement were spoken to by DC Craig Sandbach and are referred to in his affidavit (41/4 of process). His evidence was that while KS was quiet and withdrawn while giving her statement that she was calm and did not appear anxious or distressed. He spent in excess of two hours with her.
(39) A referral was made to the Public Protection Unit in February 2012. This unit provides support, advice and practical assistance to individuals who are victims of inter alia domestic abuse, forced marriage and honour based violence. A further detailed statement was taken from KS by DS Dickson from the Public Protection Unit over two dates 8 March 2012 and 17 April 2012. That statement is (number 44/of process). The information in KS’s police statements was accepted at face value. She was not challenged regarding inconsistencies. There was no cross checking. There was no further investigation. DS Keith Dickson’s evidence was that he regarded his role to be to “support KS through the ordeal” rather than investigating the issues raised in her statements as no crime was reported. Both police statements were gone over carefully with KS and signed by her as being accurate. There are material discrepancies between the two statements.
(40) KS gave evidence over four days much of which related to events in 2008 and 2009. There were material differences in her account from the information in her police statements. She also failed to stick to a consistent narrative throughout her evidence. I did not accept KS’s evidence regarding the circumstances surrounding her marriage to BA on 27 March 2008. The following examples of difficulties which arose with her evidence illustrate the reasons for my assessment of her reliability and credibility:
(41) KS gave conflicting accounts about when her father first told her that she was to marry BA. In her first police statement (20/3 of process) she stated that her father first discussed this with her four days before the wedding and that BA was pointed out to her at a social event by her cousin two days before the wedding but that she didn’t speak to him at all before the wedding. In her second police statement (44/4 of process) she said that her father told her about her intended marriage two days before the wedding. In her evidence this took place on either the 23 or 24 March either three or four days before the wedding. While in some contexts the difference of a few days may not be material, where the evidence relates to the witness’s account of her first ascertaining that she was to be married to a stranger when she was said to be shocked, distressed and anxious and where her family were apparently pressurising her to proceed, it is difficult to accept that she would not recall whether this took place four days before the wedding or two days before the wedding. The difficulties with this chapter of evidence were compounded when other witnesses gave detailed evidence about social events including an engagement party for KS and BA, which they attended together and where he put a ring on her finger and three separate “mehndis” or henna parties which took place in the week before the wedding which the witness attended with her future husband and at which they socialised together.
(42) KS stated to the police that she could barely speak Urdu. However, her evidence was that she understood Urdu well. Other witnesses confirmed that Urdu was the language spoken in the family home and that KS was fluent.
(43) In her police statements KS alleged that she was raped by her husband on their wedding night. In her second police statement (44/4 of process), she stated that she returned to her relatives’ home the day following the wedding and that during the remainder of her stay in Pakistan she saw her husband on only two occasions very briefly at her relatives’ home and spoke with him only when forced to do so by her father. In her first police statement (20/3 of process) she said that she had seen her husband on five occasions during the ten day period following the wedding. In her evidence she referred to being present at a number of social events with her husband during the week following her wedding including to “Walimas” or “after parties” arranged for her and her sister, each of which were attended by over a hundred guests. It is inconceivable that a sixteen year old girl who was apparently forced into marriage with a stranger and raped by him on their wedding night would be unable to recall accurately whether she had on one hand returned to her relatives’ home on the day following the wedding and refused to see her husband (speaking to him on only two occasions at that house on the insistence of her father) or whether she attended several social events with him over five days one of which was a big party to celebrate their wedding. Her family’s evidence was that she spent the whole period between the wedding and leaving Pakistan some fifteen days later with BA, firstly at a hotel and then at his family home.
(44) In May 2009 KS travelled to Pakistan alone. She was 18 years old at that time. Her evidence was that she did so with the intention of obtaining a divorce. In her first police statement (20/3 of process) she stated that she had been met by her in-laws at Lahore Airport and that she stayed with her husband and his family for seven and a half weeks. In that statement she said that she was raped repeatedly by her husband for “about two and a half weeks” before telling him that she wanted a divorce. She said that his family were all told that she wanted a divorce but they said that this was not possible, that they shouted at her and that she remained in their household for another five weeks during which time they were abusive towards her. In her second police statement (41/4 of process) she stated that on arrival in Pakistan she was collected by her uncle MA and that she stayed with him for ten days before her in-laws collected her. After four weeks she told her husband and his family that she wanted a divorce, that her husband said that he would divorce her if she slept with him once and that she agreed to do so in order to obtain a divorce. She said that her husband then had said “I divorce you three times” in front of his mother. His family were angry. She remained in Pakistan for a further three weeks. Her parents and siblings were aware that she had been divorced by the time she arrived home and that this caused “a big argument”. Her evidence was an amalgam of the two police statements. Her travel documents confirmed that she was in fact in Pakistan for four weeks. Her family gave evidence that she visited her husband for a holiday and that she phoned them daily to discuss what she was doing seeming happy and excited. There are photographs contained in the inventory of productions (12 of process) which show KS on trips with her husband and his family. She gave evidence that these photographs have been doctored. Details and timeframes aside, it is simply not credible that an 18 year old girl who according to her evidence had no contact with her husband for over two years would plan a trip to Pakistan for a month in order to procure a divorce when her evidence was that the last time she saw her husband he raped her. It is also impossible to reconcile the two separate accounts one where she agrees to have sexual intercourse with her husband once under duress to obtain a divorce and the other where she has sexual relations with him for two and a half weeks before asking for a divorce, one account where they are divorced and both families are angry and another where her husband’s family refuse to agree to a divorce and her family are unaware that it was even discussed.
(45) KS gave birth to a daughter DB on 10 March 2010. In her police statement (41/4 of process) she states that this was a result of one sexual encounter she consented to in order to obtain a divorce and that she wanted to have an abortion on realising that she was pregnant. That is not the position set out in her first police statement (20/3 of process) and was not consistent with her evidence.
(46) Two independent witnesses also gave evidence which impacted upon my assessment of the reliability and credibility of KS’s evidence regarding her marriage:
Familial Pressure and Honour Based Violence within the paternal wide family:
(47) The applicants submit that when assessing the risk of the protected person being forced into marriage, the court should consider the evidence of forced marriage in the wider paternal family. The first chapter of evidence on this topic relates to the first respondent’s half-brother MK, his wife SK and their children. The applicant’s sixth inventory of productions (39 of process), contains a copy Indictment and certificates of conviction from Harrow Crown Court. The convictions are dated 3 March 2006 and relate to MK, KK, SK and SQ – their son-in-law. All four were convicted of kidnapping NK and her children. Effectively these convictions relate to the kidnap of NK and her children by her husband, her brother and her parents. Her husband was sentenced to 30 months imprisonment. Her father and brother to 2 years imprisonment and her mother to a suspended 12 month sentence in respect of these offences. There was very little evidence about the nature of the offences and the context for them. Such evidence as there was, indicated that this incident occurred following a breakdown in the marriage of SQ and NK, that the incident was honour based and was an attempt to force NK to reconcile with her husband.
(48) At paragraphs 26-30 of this note I referred to the marriage proposal made in respect of FS in 2006. FS took advice from her cousin SK. SK is the daughter of MK and SK and consequently the context of the advice to FS was one where SK’s parents and brother were convicted of kidnap that year in relation to an attempt to force her sister to remain in an unhappy marriage. It was suggested in submissions that NK and SK were forced into marriage. There was no evidence to support this. The evidence relating to the S family was hopelessly vague. There are real issues with the credibility of FS’s evidence highlighted by this chapter. In particular, she asked the court to believe that she was in touch regularly with her cousin SK in 2006, that she was very much influenced by her and listened to her advice regarding the risk of her being forced into marriage with her cousin but claimed that she did not know and never asked if either SK herself or her sister NK were forced into marriage nor did she ask her cousin about the incident within her family leading to SK’s mother, father and brother being convicted of kidnap. It is inconceivable that these topics were not discussed as the basis for the concern about the risk of forced marriage when she spoke regularly to her cousin and was made sufficiently apprehensive by those conversations to leave home and move to Birmingham in early 2007. Nevertheless, there is no evidence upon which I could base a finding in fact that either SK or NK were forced into marriage. There is evidence of honour based offending by the K family in 2006.
(49) The second chapter of evidence relates to events surrounding the marriage of the protected person’s brother ADS to his first cousin AQ. AQ is NK’s daughter (one of the victims of kidnap in 2006) and the granddaughter of MK and SK. ADS and AQ entered into a “love marriage”. Members of their respective families had identified other potential spouses for each of them. The first respondent’s half-brother MA hoped that ADS would marry his daughter RA. The K family intended AQ to marry a cousin on their side of the family. ADS married AQ on 9 March 2013 in London. In 2013 and early 2014 threats were made by the K family to the S family. In particular, threats were directed to ADS and his parents the respondents. The second respondent’s fourth inventory of productions (36 of process) contains extracts from police records dated 27 September 2013 and 9 January 2014 in respect of calls made to the police in relation to threats made by the K family towards the respondents, ADS and AQ. The second respondent’s evidence was that of her son ADS, that they took those threats seriously and believed that the K family were capable of carrying them out. ADS also gave evidence that his wife spoke to the police and expressed a concern about the risk of two of her cousins J and F being forced to marry. There was a paucity of evidence in relation to that police report and as to what the basis of concern was. The second respondent also spoke to threats from her husband’s half-brother MA regarding ADS’s marriage.
(50) This chapter of evidence supports the contention that the first respondent’s half-brothers and their immediate families have a culture of arranged marriages within the family, that parents will propose an arranged marriage for their children rather than them entering into love marriages and that members of the younger generation of the K family have a concern about the possibility of forced marriage. There was no evidence of a forced marriage actually having taken place. The threats made by the K family towards the S family were taken seriously (understandably given the K family’s previous conviction for honour based violence). However, crucially, ADS married a wife of his choice against a context of significant disapproval in the extended family. His parents supported him in this choice. ADS and his wife have lived with the respondents since their marriage. The respondents stood up to family pressure, sought police assistance and supported their son’s wish for a love marriage. It is difficult to see how this chapter of evidence supports the contention of a need for a Forced Marriage Protection Order to be granted against the respondents in relation to the risk of their daughter being forced into marriage.
(51) The third chapter of evidence under this heading relates to the conduct of the first respondent and his sons OS and ADS in relation to KS in March and April 2012. The context for this evidence was that KS had left the family home with her two year old daughter DB and was living in a tenancy in the Murrayburn area of Edinburgh. She was in a relationship with AA. Her family disapproved of this relationship as firstly KS was married to BA and secondly AA had a criminal record, drank to excess, was rumoured to supply drugs and assaulted KS on at least one occasion. KS’s evidence was that her primary reason for leaving home stemmed from her turning 21 as she was then able to sponsor her husband’s immigration application to enter the UK. She did not want to do so. She averred that her parents were pressurising her to do so and were in communication with BA and his family on a regular basis. She also averred that her mother took control of the care of her daughter and restricted her day to day life and activities. The S family evidence was that no pressure was brought to bear on KS regarding her husband’s visa application. They averred that KS struggled with the care of her daughter and was reliant on her mother for childcare. They said that she became involved in a relationship with AA and that her behaviour changed, becoming aggressive and challenging.
(52) The evidence is so littered with inconsistencies and contradictions that it is impossible to obtain a clear picture. Dr Curtis regarded the first respondent as controlling and overprotective of KS and as someone who found it difficult to see her daughter as an adult making her own choices rather than as a child with learning difficulties. Neither Dr Curtis nor social workers involved with the family in 2012 shared the first respondent’s concerns about KS’s parenting of DB. There were clearly tensions in the family in relation to KS’s decision to pursue a relationship with AA and leave the family home. KS was also ambivalent regarding her decision to leave home. She gave evidence that despite living at a location which was not disclosed to her parents, that she felt lonely, short of money and missed her family. She contacted them at intervals. She did not disclose that she had done so to the police. She considered moving back home at points. Her relationship with AA was troubled.
(53) On 6 March 2012 KS contacted her family with a view to possibly moving back home. Her own evidence was that she was lonely and hoped that she might return home and that things may be different. Her brothers came to her address. A family friend Masood Asif also assisted at the request of the second respondent. Mr Asif is a neighbour of the family and owned a shop near KS’s flat. He agreed to drive KS and DB and their luggage home. Mr Asif gave evidence and was an entirely reliable and credible witness. He said that he closed his shop at around 7.00 pm and went to KS’s flat. On arriving at the flat KS, her daughter and her brothers were there. Mr Asif and ADS took KS’s luggage to the car. KS got into the car and then got out again. She became upset. Her brothers tried to get her into the car. She refused and called the police who arrived quickly. Her luggage was returned to her and she left with the police. It is clear from this evidence that KS initially wanted to return home and then changed her mind. One can only speculate as to whether this was as a result of something one of her brothers said to her. They did attempt to get her and her daughter into the car to return home. No physical force was used.
(54) On 9 April 2012 KS returned to Edinburgh from visiting family in Birmingham. Her partner was in her flat on her return home. She settled her daughter leaving the flat to buy milk. Her brothers and father arrived at the flat. She returned home. Her partner left the flat locking her and her daughter in. There was a physical fight between her partner and her brothers. ADS broke a window to gain access to the flat. KS jumped out of the rear window with her daughter. There was a physical struggle as her family tried to force her and her daughter into a car to return home. She called the police who assisted her and arrested her father and brothers.
(55) KS’s evidence was that her father and brothers found out her new address and attended there uninvited to force her to return home. ADS’s evidence was that his sister had called his mother as she wanted to return home. KS had also texted and called him. He and OS had gone over to her flat at her invitation. AA was there when they arrived. ADS immediately asked his sister why she was still with AA after he had assaulted her. AA asked OS and ADS to leave the flat which they did. KS then called a few minutes later to say that AA had locked her in the house and that she wanted help to leave. ADS smashed a front window. KS exited through a rear window and called the police. There was a physical fight between the brothers and AA in the street. The first respondent drove up to KS in the street and tried to persuade her to get into the car. ADS denied any physical struggle other than that KS took her father’s car keys and he took her phone saying that he would give it back to her in exchange for the keys.
(56) The applicant’s first inventory of productions (2 of process) contains a copy Indictment and copy extract convictions regarding the first respondent, OS and ADS in relation to this incident. The Indictment contains charges of assault of KS, kidnap of KS and DB, possession of an offensive weapon (a spanner), assault of AA and maliciously breaking a window. The first respondent was convicted of an assault to injury. OS was convicted of an assault to injury and breach of the peace. ADS was convicted of breach of the peace. All three were remanded in custody between 9 April 2012 and 10 July 2012. Guilty pleas were tendered to amended charges at a first diet. The Crown narrative provided to the court deleted any reference to the offences being honour based and to the use of any offence weapons. The narrative put before the court was that the incident was motivated by concern of the S family in relation to KS’s relationship with AA. AA was serving a two year sentence for fraud and assaulting KS by the date of sentencing on 10 July 2012. The assault on KS by the first respondent and OS was restricted to him pulling her by the arm and attempting to push her into the car. All three members of the S family were admonished in view of the time which they had served on remand and the nature of the charges to which they had ultimately pled guilty. KS returned to the family home in late April 2012. She visited her father and brothers in prison regularly. She retracted her police statement and expressed remorse for the incident.
(57) KS gave evidence at proof that she was pressurised by her mother to retract her police statement and that the letter she wrote to the crown was on the advice of and dictated by John Pryde solicitor. Mr Pryde signed an affidavit (53 of process) and gave evidence on 5 January 2015. His evidence was that the only time he met KS was at a first diet calling of the case and that he did not discuss the evidence with her. Neither he, nor any of his staff, would have done so. I had no hesitation accepting his evidence which served to further undermine KS’s credibility. I prefer the evidence of ADS in relation to this incident which is consistent with the crown narrative in relation to the criminal charges. I do not accept the applicant’s submission that these incidents demonstrate that the male members of the S family are prepared to use violence against those who do not agree with them specifically in the context of forced marriage. They demonstrate that KS’s family did not respect her as an autonomous adult. They disapproved of some of her lifestyle choices and in particular her relationship with AA. Her father and brothers’ view of AA is understandable in the circumstances. Her family wanted her to return home. The evidence in relation to the second respondent’s attempt at obtaining a Guardianship Order later in 2012 in order to gain control of her daughter’s affairs and to secure her return home, is clear evidence of the lengths to which the family would go. KS was assaulted on 9 April 2012 as was her partner. The offences of which her father and brothers were convicted, the narrative given to the court, and the context for these offences do indicate a level of concerning and controlling behaviour but not honour based violence. I accepted the evidence of ADS that KS sought her family’s help to return home. After the conflict and altercation between her partner and her brothers KS thought better of it and called the police. This incident does not bolster the applicant’s case in respect of the assessment of risk of the protected person being forced into marriage.
AS - the “Protected Person”
(58) AS is fifteen years of age and in her third year at a secondary school within the jurisdiction of the court . Her school report dated January 2014 is lodged (38 /1 of process). Her teachers describe her as “a quietly dedicated and conscientious student with a mature approach to learning” and as “polite, helpful and a pleasure to have in class”. She participates in sport; gymnastics, badminton, volleyball and rugby. She plays the guitar. There are no issues with her attitude or her punctuality.
(59) AS was calm, composed and articulate when giving evidence; if a little reticent. She is bilingual speaking both English and Urdu fluently. Her evidence was that Urdu is the language mainly spoken in the family home. She wears a mix of western and traditional clothes. She attends mosque each Friday and observes Ramadan. She does not always pray five times a day. She does not regard her family as particularly religious or observant. She has some friends through mosque and some from school. She socialises regularly and enjoys shopping, bowling and going to the cinema with her friends.
(60) Jane Maltman, Social Worker, was allocated to AS in March 2012 but first met her in early August 2013 following the grant of the interim Forced Marriage Protection Order in this case. AS kept a diary to enable her to keep her social worker appraised of her friendships and activities. Ms Maltman could not point to any concerns or warning signs in respect of AS who she has met regularly every few weeks over the last 18 months. The meetings have taken place in the family home at AS’s request, but Ms Maltman speaks to AS in privately on a one to one basis. Ms Maltman did regard AS as fairly sheltered and as being very close to her family, socialising mainly within her own community outwith school. AS’s evidence was that she is not controlled by her parents, that she has a free life and that she can do whatever she wants and go wherever she wants.
(61) AS has had access to an Advocacy Worker from Barnardos. She first consulted a solicitor in July 2013. Counsel was instructed for the proof. She has had regular meetings with four professionals outwith the family's influence, on a regular basis over a period of 18 months. She has been able to express her wishes and feelings freely. She is sufficiently mature to understand the issues involved in this case and to instruct her solicitor and counsel.
(62) AS regards the interim order as intrusive. She does not want an order to be granted. While it is important to her to be able to choose who she wishes to marry, she feels happy and safe in her parent’s home and does not believe that they would force her to marry against her wishes. She commented on the difficulties and restrictions to her life which the interim order has caused. A summer holiday had been planned to Tunisia but this was cancelled as her passport was held by the court. She wanted to visit family in Birmingham but required to speak to her social worker both before and afterwards if she wanted to go and decided not to go as a result. AS wants her passport back, does not want to have to see a social worker regularly and does not want to have to tell social workers when she is planning to travel.
Social work evidence re. the requirement for a Forced Marriage Protection Order
(63) The applicants lodged an affidavit of John Stevenson (41/6 of process) on the first morning of the proof and called Mr Stevenson as a witness. Mr Stevenson is a social worker with 34 years’ experience and is a Children’s Practice Team Manager. He was responsible for ensuring that the social work department operated within the statutory guidance and he also had ultimate responsibility for the decision to apply for a Forced Marriage Protection Order in this case. His evidence and the reception of his affidavit were objected to by counsel for the protected person and the respondents on three grounds;
The prejudice to the protected person and the respondents arose from the lack of fair notice of this evidence. However, Mr Stevenson’s evidence was clearly germane to the determination of the case at proof. I directed that the applicants should intimate a full set of the protected person’s social work records to her agents and that the respondents agents within 48 hours. Mr Stevenson was not called until the 7th day of proof. I was satisfied that by that stage there had been adequate time for counsel to consider the affidavit and social work records and to take instructions regarding questions to be put to Mr Stevenson in cross examination. No motion for an adjournment was made. I did not consider it appropriate to exclude this evidence from probation on the basis of a paucity of averments on record. This is a summary application which centres on the welfare of a fifteen year old child. The evidence concerned was relevant to a determination of the issues in this case. There was ultimately no prejudice to the parties in it being admitted given the procedure adopted.
(64) Mr Stevenson spoke to a minute of a meeting on 16 July 2013 (48/4 of process). That minute sets out the social work department’s consideration of the appropriateness of a Forced Marriage Protection Order and the various factors that were taken into account by them in deciding to proceed. Mr Stevenson gave evidence that the social work department referred to the Scottish Government Multi Agency Guidelines on Forced Marriage (40/2 of process). The case was first referred to the Children and Families Department in February 2012 following KS’s first police statement (20/3 of process). On receiving the referral, the social work department undertook checks. Information from police records was shared and there was liaison between police and social workers in this case. The information from police records was primarily provided by DS Keith Dickson. John Stevenson also consulted Sara Howe, Social Worker who visited the S household on a regular basis as she was the allocated social worker appointed to KS’s daughter DB. A further referral was received from the police following the incident on 9 April 2012.
(65) Mr Stevenson referred to the Multi Agency Practice Guidelines which identified warning signs which social workers should be alert to when assessing risks such as changes in the protected person’s dress from western to more traditional clothing, signs of depression or isolation, absences from school, a decline in performance or punctuality at school, withdrawal from extra-curricular activities and social isolation within her peer group. Social workers spoke with AS’s teachers on 18 April 2012. None of these warning signs were apparent in this case.
(66) In July 2013 AS was thirteen years old. There had been no discussion of marriage. There was no putative spouse and no evidence to suggest that AS’s family planned for her to marry in the foreseeable future. The social work department took advice from a specialist organisation Shakti and were advised that there was unlikely to be any risk to AS of forced marriage at the age of 13. No evidence was given by police officers or social workers regarding a risk of AS being taken to Pakistan or of her being married before she reached the age of 16 years. Mr Stevenson accepted in his evidence that he had not considered any intended marriage to be imminent.
(67) Mr Stevenson was mindful of his duty to act where a child may be at risk of harm. Paragraphs 12, 13 and 14 of his affidavit refer to the relevant paragraphs of the Statutory Guidance and set out some of the very serious consequences of forced marriage for a teenage girl. He gave evidence that as an experienced social worker he found the statutory guidance to be counter intuitive in that normal social work practice would be to discuss concerns with the family and the protected person herself. The Statutory Guidance highlights the increased risk to the protected person of this approach referring to the risk of abuse to the protected person or the fact that arrangements for travel plans may be expedited if the family are aware that they are under scrutiny and that sometimes there is only one opportunity for professionals to act where a protected person is at risk.
(68) Mr Stevenson’s evidence was that his decision to apply for a Forced Marriage Protection Order was based on the information he was given regarding the protected person’s siblings FS and KS. He was given information from the police distilled both from “an interrogation of police records” and from KS’s police statements. He accepted that information at face value. He did not question its veracity or cross check it in any way. He was asked whether his view of the case would have been different if this information proved to be inaccurate. He initially pointed out that the retraction of a statement by a witness did not necessarily mean that the initial statement was incorrect. He referred to the controlling behaviour of the second respondent in relation to her daughter KS and also to the incident on 9 April 2012. Ultimately, he accepted that the cornerstone of the application was KS’s police statements and that if those statements proved to be unreliable or incredible then he would need to reflect on the basis for the application. He was unaware of inconsistencies between KS’s police statements.
(69) DS Keith Dickson provided the bulk of the information from police records to the social work department. There is an issue which arose in his evidence which I should refer to at this point. DS Keith Dickson understood that it was intended that FS was to marry BA in 2006 and not her cousin IA. He understood that KS was divorced from BA in 2012. He was concerned that the S family may force AS to marry BA in order to restore family honour and to assist with BA’s visa application to enable him to live in the UK. This represented a fundamental misunderstanding of the factual background which certainly impacted upon his assessment of this case. Mr Stevenson was asked whether the social work department also shared this misapprehension about the factual background of the case. His evidence was that he could not remember whether this was the case and that it was not material to his decision making which was primarily based on KS’s statement that she was forced to marry at the age of 16. There was no reference in the minute of 16 July 2013 (48/4 of process) to a concern about AS being forced to marry BA. Mr Stevenson’s decision to seek a Forced Marriage Protection Order regarding AS was based on the information he was given from police records in respect of FS in early 2007 and KS in February/March 2012, together with the police incident report relating to 9 April 2012.
(70) Mr Stevenson also accepted that it would be regarded as good social work practice to consider appropriate alternatives to seeking a Forced Marriage Protection Order and whether there was a more proportionate or less interventionist approach which could be adopted. It is significant that the social work department were involved in this case for over a year before they decided to apply for a Forced Marriage Protection Order and that the information giving rise to concerns for the protected person regarding the risk of her being forced into marriage was all available within a matter of weeks of the initial referral being made. Nothing occurred between April 2012 and July 2013 to give rise to a perception of increased risk or a higher level of concern.
(71) In May 2013 DB was removed from the child protection register. This meant that Sara Howe, the social worker allocated to DB would not be visiting the family home and would be unable to informally monitor AS. AS’s school were also aware of the situation and would report any concerns they had to the social work department. School summer holidays meant that this form of informal monitoring was also lost.
(72) The alternative course of action of referring the case to the Reporter to the Children’s Hearing under section 67(2)(q) of the Children’s Hearing (Scotland) Act 2011 on the basis that “the child has been or is likely to be forced into a marriage… or is, or is likely to become a member of the same household as such a child”, was another option which could have been taken by the social work department. The social work evidence on this aspect of the case was unsatisfactory. Mr Stevenson’s evidence was that he considered this option as an alternative to seeking a Forced Marriage Protection Order. It is clear that the tipping point for his decision to seek a Forced Marriage Protection Order in this case was the lack of informal monitoring of AS during the school holidays and in the absence of any social worker visiting the family home. The minute of 16 July 2013 (48/4 of process) is contradictory in this regard. There is a note that “if the family know that they are under scrutiny then a Forced Marriage Protection Order may not be required”. However, Mr Stevenson also noted that the Statutory Guidance warned that other ways of addressing the issue (e.g. a referral to the reporter), would alert the family and risk the protected person being removed. Two weeks’ notice of a children’s hearing would be given. There was not thought to be a basis for applying for a Child Protection Order in this case. Mr Stevenson ultimately was influenced by the Statutory Guidance. He was concerned about the lack of informal monitoring of AS and decided to err on the side of caution in applying for a Forced Marriage Protection Order. The allocated social worker (Jane Maltman) gave evidence that at the case conference on 4 November 2013 a decision was made that a referral to the reporter would be made. She said that she made referrals to the reporter on 9 August 2013, in November 2013 and in January 2014. In fact, no such referral was ever received by the reporter’s office. This is confirmed in a letter from the Reporter’s Office dated 4 June 2014 (19 of process). Mr Stevenson’s evidence was that there may be issues with finding a sufficiency of evidence to establish grounds of referral. This seems a surprising concession for him to make given his assessment of the evidence and his view that a Forced Marriage Protection Order should be sought.
(73) Written submissions were lodged by counsel (55, 56, 57 and 58 of process). I have set out a summary of the relevant statutory provisions and the legal framework at paragraphs 14-19 of this note. I do not intend to repeat those submissions in detail in this note but I have set out my conclusions on the material issues raised.
Discussion and decision
(74 ) The applicants seek a Forced Marriage Protection Order in terms of craves 1 and 2 of the amended record viz :
“to grant a Forced Marriage Protection Order in terms of section 1 of the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 with the undernoted powers in relation to AS (the protection person)”…
to attach the following order:
to ordain MS (father) and NS (mother) both residing at *
These orders are sought for an indefinite period.
Further orders are sought in terms of the following craves until the protected person’s 21st birthday (31 January 2021);
to order MS (father) and NS (mother) both residing at *
(e) to refrain from taking the protected person out-with the United Kingdom.
The orders sought in terms of craves 2 (c), (e), (f) and (g) if granted, would require the respondents to allow social workers access to the protected person for the purposes of monitoring her wellbeing, disclosure of any travel plans (including those within the UK) to social workers and to refrain from taking the protected person outwith the UK until her 21st birthday. Mr Hayhow submitted that crave 2(f) required the protected person’s passport and any subsequent passport issued to her before her 21st birthday to be lodged with the court. There are some issues which arise in relation to the wording of the orders given that they are sought until the protected person’s 21st birthday. A passport may be issued to her in her own name at her request after she reaches the age of 16 years. She may also travel both within the United Kingdom and outwith the United Kingdom separately from her parents. After her 18th birthday it would be a matter for the protected person rather than her parents whether she spoke with a social worker. The craves are directed against the respondents and not against the protected person. Mr Hayhow submitted that I should frame the orders appropriately so that they are directed against both the respondents and the protected person in order to secure her safety and wellbeing until her 21st birthday.
(75) The applicants are a relevant third party in terms of section 3(1)(b) and 7(a) of the 2011 Act and have a locus to make this application.
(76) These orders, if granted, would have a significant impact on the private life of the protected person and the respondents. AS would be under social work supervision until she reaches the age of 21, would require to disclose information to social workers regarding her private life and to seek social workers’ approval for any travel within the United Kingdom. Were a referral to have been made to the reporter to the children’s hearing under section 67(2)(q) of the Children’s Hearings (Scotland) Act 2011 on the ground that the protected person “is likely to be forced into a marriage or is likely to become a member of the same household as such a child” then in terms of section 119(6) and (7) of that Act the protected person could only be under compulsory supervision until she reached the age of 18 years. The orders sought in this case would require her to be subject to social work monitoring until her 21st birthday. AS and her parents would be unable to travel as a family without prior discussion with a social worker. The protected person’s passport would be held by the court until her 21st birthday. She would be precluded from leaving the United Kingdom without first applying to the court to obtain the release of her passport.
(77) Mr Murray submitted that while Section 7 of the 2011 Act allows the court to vary or recall a Forced Marriage Protection Order on the application of the protected person, the applicants or the respondents, no procedure has been devised for review of the order. Equally, if the protected person wishes to seek the release of her passport to travel outwith the United Kingdom for a particular purpose, she would require to apply to the court to do so by way of Summary Application. There is no provision in the rules of court for variation of any orders by motion or minute after the conclusion of the case. An application for variation, recall or release of the protected person’s passport for a particular purpose would require to be made in writing and it is presumed, with a separate application for legal aid being required. It is unclear whether in the event of opposition the court would require to hear further evidence before determining such an application. On any view the procedure is cumbersome and expensive. This submission is well founded.
(78) The court must take into account the nature of the orders sought when deciding whether they are required to secure the health, safety and wellbeing of the protected person. Submissions were made in relation to the need to consider whether the orders are proportionate against the context of the European Convention on Human Rights and in particular article 8 thereof:
Clearly the granting of an order in the terms sought by the applicants would result in a significant infringement of the article 8 rights of both the protected person and the respondents. However, where the interference with those rights is necessary to protect AS’s right to marry freely in terms of article 12 of schedule 1 of the 1998 Act, it is warranted in terms of paragraph 2 of article 8 as being necessary for the prevention of disorder or crime, the protection of health or morals or for the protection of rights and freedoms of others. I am fortified in reaching this view by referring to the case CC and AA v. YK and others  EWCA Fam 2438 which concerns a case under the Forced Marriage (Civil Protection ) Act 2007 (the relevant sections of which are virtually identical to the Scottish 2011 Act ); the leading judgment was delivered by the President of the Family Division Sir Nicholas Wall , I refer to paragraph 18 “nobody suggested to me that the Act was not compliant with the Human Rights Act 1998 nor do I think that such a submission could properly be made”.
(79) I accept the submission that when deciding whether the orders are needed to secure the health, safety and well-being of AS , the evidence must be carefully scrutinised against the context of the nature of the infringement of both AS and the respondents’ article 8 rights which the orders would represent. I must consider whether the orders sought are proportionate and whether there are any more proportionate alternatives such as a referral to the Reporter to the Children’s Hearing in terms of section 67(2)(q) of the Children’s Hearing (Scotland) Act 2011, which may adequately protect AS .
(80) It was drawn to my attention by Mr Speir that, since the raising of the action, section 122 of the Antisocial Behaviour Crime and Policing Act 2014 has come into force (the terms of which are set out at paragraph 7 of this note). That legislation imposes criminal penalties in excess of those set out in the 2011 Act in relation to any person who commits an offence by using violence, threats or other form of coercion for the purposes of causing another person to enter into a marriage. Consequently there are criminal penalties applicable in the absence of any Forced Marriage Protection Order granted under section 1 of the 2011 Act in this case.
(81) Mr Hayhow’s submission was that given the serious consequences of forced marriage for the protected person and the level of risk which may be inferred from the evidence in this case, that the orders sought in particular in relation to the surrender of the protected person’s passport until she reaches the age of 21 were necessary in order to protect her, were proportionate in all the circumstances of the case and that there was no more proportionate alternative which would adequately protect AS.
(82) Section 1 of the 2011 Act provides ; “ (1) the court may make and order for the purposes of protecting a person ( a “protected person”) - (a) from being forced into a marriage or from any attempt to force a person into marriage, or (b) who has been forced into marriage”.
AS has not been forced into a marriage. No marriage has been planned for her. No putative spouse has been identified for her. There was no evidence of an imminent likelihood of her being forced into a marriage. On one view, a literal interpretation of section 1 would require the court to establish the existence of an actual marriage planned for the protected person in order to conclude that the order should be granted. Counsel did not urge me to interpret the Act in this way. In the absence of any Scottish reported decisions, I was referred to a decision of the Northern Irish Appeal Court regarding the Forced Marriages (Civil Protection) Act 2007 (the relevant sections of which are virtually identical to the 2011 Act) – re. G & D (minors) between the mother of G & D & Belfast Health & Social Services Trust  NICA 55 in which it was held at paragraph 9 “there is no statutory or other authority to support the assertion that the risk of a forced marriage or attempted forced marriage must be imminent before the court can grant a protection order”. Mr Hayhow also referred me to the English case of CC and AA v. YK and others supra at paragraph 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”. The long title of the 2011 Act describes the Act as being “to make provision for protecting persons from being forced into marriage without their free will and consent”. A literal interpretation of section 1 requiring evidence of an actual marriage would thwart the policy intention of the legislation. Many applications would fail where applicants were unable to adduce evidence of a planned marriage but where otherwise the evidence clearly pointed to there being a requirement to protect the protected person from and attempt at forced marriage being made. The purpose of the legislation is to create a protective remedy and it should be interpreted accordingly.
(83) Section 1 (2) of the 2011 Act provides; “In deciding whether to make such order and, if, what order to make, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the protected person”. There is nothing in the legislation which requires the court to apply any given criteria. Counsel for the respondents and the protected person made submissions in relation to the evidential threshold required to persuade the court that the orders were required . Ms Malcolm submitted that given the impact of orders on the protected person and the respondents, for the court to be satisfied that they should be granted there must be evidence of “a genuine and serious risk” and that the risk must be “substantial”. She submitted that the evidence must “overwhelmingly support the granting of the orders”. This submission was adopted by Mr Speir who submitted that it would be inappropriate and unjust to adopt a precautionary approach where the evidence did not “overwhelmingly support” the need for an order. Mr Murray submitted that the evidence must demonstrate “a very high level of risk” and “overwhelmingly support the granting of an order”. I do not accept these submissions. All that is required is for the court to find that on the balance of probabilities the evidence supports the granting of orders which are needed to protect AS from being forced into a marriage and that the orders would secure her health, safety and wellbeing. It is perhaps appropriate to point out in this context that the terms of section 5(3) of the 2011 Act which deals with the applicable test for the granting of interim orders, provides that the court should consider “any risk of significant harm to the protected person”. That wording is not repeated in section 1 which relates to the granting of an order after evidence is heard. The English case of CC and AA v. YK and others supra to which I was referred, considers the appropriate approach to be adopted by the court when considering an application for interim orders on an ex parte basis in terms of the equivalent English legislation and is not applicable to the assessment of evidence at proof and the application of section 1 (1) & (2).
(84) When deciding whether the evidence supports a finding that a Forced Marriage Protection Order is required to protect AS, it is appropriate to consider that the purpose of the order is to protect her from being forced into a marriage. Section 1 (6) provides that “force” includes- (a) coerce by physical, verbal or psychological means, threatening conduct, harassment or other means”. I accept Mr Murray’s submission that while the definition of force is very widely drawn, there must be evidence to support an apprehension of force or coercion. He rightly stressed the need to avoid blurring the lines between forced and arranged marriage. Mr Hayhow’s submissions referred to forced marriage as being a marriage where one of the parties had “no real choice”. He referred to evidence in relation to the second respondent marrying a man who she had never met in order to comply with her parents’ expectations as being a situation of forced marriage. The evidence was very clear that the second respondent consented to this marriage and there was no evidence of family coercion. Mr Hayhow also referred to the pressure of family expectation and to arrangements for a wedding having been made as being relevant evidence. I accept Mr Murray’s submission that to construe section 1 as reading that someone is forced into marriage in these circumstances places a construction which the Act cannot bear.
(85) Section 1(3) of the 2011 Act requires the court, in ascertaining the protected person’s wellbeing, to have regard to the protected person’s wishes and feelings (insofar as they are reasonably ascertainable) as the court considers appropriate on the basis of the person’s age and understanding. In this case the protected person’s wishes and feelings have been ascertained and clearly articulated to the court. She is opposed to the order being granted. She feels it to be unnecessary, intrusive and unwelcome. She wishes her passport to be returned to her. Her counsel, Mr Murray submitted that the court should have regard to the fact that the protected person has the capacity to consent to the making of an adoption order in terms of section 2(3) of the Age of Legal Capacity (Scotland) Act 1991. She also has the capacity to consent to surgical, medical or dental treatment under section 2(4) of that Act in terms of which she is deemed to have sufficient maturity to assess the risks involved and to determine herself whether to take those risks. He submitted that it is at complete odds with the protected person’s legal capacity for a Forced Marriage Protection Order to be made against her wishes unless there is some compelling evidence that she has not been afforded an opportunity to make her views properly known or that she has some form of incapacity – neither of which are applicable here.
(86) Mr Murray submitted that the 2011 Act was intended to protect individuals from coercion, not from their own decision making if they have sufficient capacity. The policy intention of the legislation is to allow relevant third parties to step in and take forward the process of having an order put in place where victims are not at liberty to do so or to freely express their views. In Mr Murray’s submission the Act was not intended to be used to obtain an order against the wishes of a person with full capacity. Mr Hayhow submitted that section 1(3) gave the court discretion as to the weight to be given to the evidence in relation to the protected person’s wishes and feelings depending on the facts and circumstances of a particular case. He submitted that there was evidence of discussion of the facts and circumstances of this case and the family’s attitude to the interim Forced Marriage Protection Order within the S family home. AS has a close relationship with her parents and siblings and her understanding of the facts and circumstances of this case would have been influenced by her family. She strongly identified with her parents’ narrative of events and has an incomplete knowledge of the risks posed to her. In his submission it is against that context that the court must carefully consider what weight to attach to her views.
(87) I am able to reconcile these submissions. I must give appropriate weight to the wishes and feelings of the protected person when deciding whether an order should be granted. The protected person is sufficiently mature and articulate to clearly express her wishes and feelings. She has had access to a number of professionals independently, is legally represented and in this has given evidence outwith the presence of any other members of her family. She does not want an order to be granted. Her evidence is clear and unequivocal in that regard and has remained consistent in every context since the raising of proceedings in this case 18 months ago. However, I must also take into account that her wishes and feelings may be articulated against a background of an incomplete understanding of risks. If I had found that pressure was brought to bear on her eldest sister FS to enter into an arranged marriage against her wishes, that her sister KS was forced into marriage when aged 16 years and that the protected person was unaware of those facts and that she had accepted her parents’ account of the marriages unquestioningly, then clearly that would lead me to accept Mr Hayhow’s submission that I should be cautious in attaching undue weight to her wishes and feelings when they are articulated against a background of an incomplete knowledge of risk. This further underlines the need for me to carefully scrutinise the evidence in relation to her siblings’ marriages. One can readily envisage circumstances in which Forced Marriage Protection Orders will be sought either by the protected person or where they support the application. Consideration of this application in the context of opposition by the protected person differentiates this case from many cases which are likely to arise under the 2011 Act.
(88) The material evidence in this case relates to the marriages of the protected person’s siblings. I have set out at paragraphs (26)-(30) of this note, the basis upon which I have concluded that there is no credible or reliable evidence upon which I could form the view that the respondents attempted to force their eldest daughter FS to marry her cousin IS. At paragraph (32) of this note I have set out the circumstances of the protected person’s brother OS’s marriage in relation to which no family pressure was brought to bear. At paragraphs (33)-(46) inclusive of this note I have dealt with my assessment of KS’s evidence. I have concluded that her evidence was neither reliable nor credible and that her parents did not force her to marry BA. Paragraphs (51)-(57) of this note deal with the chapter of evidence in relation to the conduct of the respondents and their sons towards KS in 2012. While I have concluded that there was a level of concerning and controlling behaviour in relation to KS, I have not concluded that that behaviour was either within the context of forcing her to enter into a marriage or remaining in a marriage neither was it honour based as submitted by Mr Hayhow.
(89) I have set out the circumstances of ADS’s marriage to AQ in paragraphs 49 and 50 of this note. Again, that marriage was entered into without any parental influence or pressure being brought to bear.
(90) Having carefully scrutinised the evidence I do not accept the submission that there is evidence to support the contention that any attempt was made to force any of the protected person’s siblings into marriage.
(91) Mr Hayhow invited me to consider the conduct of the first respondent’s family and the culture within his family when assessing risk in this case. I accept his submission that the first respondent’s half-brothers and their immediate family have a culture of arranged marriages within the family. Parents will commonly propose an arranged marriage for their children rather than allow their children to enter into love marriages. There was also evidence that certain members of the younger generation of the K family have a concern about the possibility of being forced into marriage. There was no evidence of any forced marriage actually having taken place within that family. Three members of the K family and their son-in-law SQ were convicted in respect of kidnap in respect of honour based violence within the context of attempting to force NK to remain in an arranged marriage. The K family made threats towards the respondents, their son ADS and their daughter-in-law AQ. Threats were also made by the first respondent’s half-brother MA. I have set out my assessment of this chapter of evidence at paragraphs 49 and 50 of this note. The evidence in relation to ADS’s marriage to SQ demonstrates that the respondents supported their son in marrying his choice of spouse against the wishes of his extended paternal relatives who wished him to marry MA’s daughter RA and against intense pressure from AQ’s family who wished her to marry a cousin on their side of the family. The respondent supported ADS and AQ, provided them with a home and were resistant to pressure and threats from extended family members. I formed a similar impression in relation to the evidence regarding the proposed marriage of FS to her cousin IS in 2006, particularly insofar as the evidence related to the conduct of the second respondent. The respondents have resisted family pressure in relation to the marriages of their children and the evidence of their conduct in these contexts does not support Mr Hayhow’s submission that there was an inference of risk of the protected person being forced into marriage.
(92) Accordingly, for the foregoing reasons, in all the circumstances of the case including those set out in sections 1(2) and (3) of the 2011 Act, I am not persuaded that the orders should be granted.
(93) A hearing on expenses took place on 27 February 2015. Written submissions were lodged by Mr Murray on behalf of the protected person. Those submissions were adopted by counsel for the respondents and were referred to in support of their motions for the applicants to be found liable for the expenses of the other parties. The applicants sought a disposal of the case on the basis of no expenses being payable due to or by any party.
(94) The court has an inherent power to dispose of questions of expenses in summary applications. I was referred to Macphail Sheriff Court Practice at paragraph 26.46 and to the case of McQuater v Ferguson 1911 SC 640 in that context. It was also submitted that the fact that the respondents were in receipt of legal aid in respect of the proceedings did not mean that the court should depart from the general rules of expenses. Indeed, the Scottish Legal Aid Board had been consulted by the respondents’ agents in this case and intimated that the Board’s position was that an award of expenses should be sought against the applicants. I was referred to the English cases of Grenwich LBC ex parte Lovelace (2)  QB 155 and In re. O (costs; liability of Legal Aid Board)  FLR 465, as examples of the courts consistent rejection of the argument that an award of expenses should not be made against a legal aid fund in favour of a government department because it simply moves money from one department to another. I accept these submissions as the starting point when considering the issue of expenses in this case.
(95) I was invited to follow the general rule that the unsuccessful party should be ordered to pay the expenses of the successful parties. It was submitted that there was nothing in the conduct of the successful parties in this case which would justify departure from that rule. It was submitted that the courts should award expenses against a local authority in a summary application on the same principals involved in actions between any other litigants. Paragraph 26.46 of Macphail supra provides “when the application raises novel questions of difficulty or importance the sheriff may decide not to exercise his powers and make no award, but in a case involving any straightforward application of settled rules the sheriff may consider an award appropriate… when an application is brought or opposed in the public interests… expenses would not normally be awarded”. This application is the first Scottish case when the interpretation of section 1 of the 2011 Act has been considered by the courts. The terms of the Act are broad directing the court to “have regard to all of the circumstances including the need to secure the health, safety and wellbeing of the protected person”. This case involved consideration of a novel area of law and a complex factual matrix. The application concerned the exercise of a statutory power to protect a child aged 13 at the time the proceedings were raised. The 2011 Act required the applicants to have regard to statutory guidance (40/1 of process) when exercising their functions and when considering whether an application ought to be made. The applicants required to consider information available to them from the police and social work department. The statutory guidance led them to the decision that raising the proceedings was the appropriate step to take at that juncture. Mr Hayhow referred me to the English Supreme Court case In re T (Children) (Care Proceedings: Costs)  UKSC 36 in which it was held that “since the Children Act 1989 imposed duties on the local authority to investigate if it received information that a child had been subjected to or was likely to be subjected to serious harm and to investigate care proceedings when there were reasonable grounds for believing that the information may be well founded; that it was for the court, not the local authority to decide whether such allegations were well founded; that while it was a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, when it was reasonable that those should be investigated by a court, justice did not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations were made; that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, with one that accorded with the ends of justice”. Mr Hayhow suggested that this action was analogous to the circumstances of that case and indeed to the court considering evidence regarding Grounds of Referral to the Children’s Hearing. The applicants had raised proceedings in good faith in terms of their statutory duty. It was for the court to scrutinise the evidence and not for the applicants to decide whether the allegations were well founded. He accepted Miss Malcolm’s submission that there is no specific statutory exception to the rules of expenses (as is the case in proceedings under the Children’s Hearings (Scotland) Act 2011) but submitted that the circumstances of this case and the nature of the application were on all fours with such cases.
(96) I consider that the applicant’s submissions in relation to the nature of these proceedings being relevant to the question of expenses are well founded. This application is one where the local authority sought a protective remedy in terms of statutory guidance requiring them to act in certain circumstances. The application was made under legislation which had not been considered by a Scottish court previously. The relevant statutory provisions are widely framed. Protective orders were sought in relation to a 13 year old child. In my view both the nature of the proceedings and the novelty of the subject matter mitigate against the application of the general principal that expenses ought to follow success in circumstances where the orders sought were ultimately not granted after proof.
(97) Counsel for the protected person and the respondents submitted that a consideration of the applicant’s case and the conduct thereof ought also to lead to an award of expenses being made. My attention was drawn to the discrepancies in the police statements of KS (20/3 and 44/4 of process) and the lack of careful scrutiny of the contradictions in certain adminicles of evidence. It was submitted that the applicants ought to have more carefully precognosed the case and that had they considered the reliability and credibility of the witnesses FS and KS that a decision not to proceed to proof ought to have been made. I accept the general proposition that the applicants required to have a stateable case prior to raising proceedings. That assessment was made and it was endorsed by the fact that interim orders were granted in this case. I also accept the submission that when considering the issue of expenses, the court should have regard to the conduct of the parties throughout the litigation. In this case the applicants raised a novel application where the nature of the evidence required in order to establish the basis for the orders sought in terms of section 1 of the 2011 Act was unclear. The factual matrix was complex. The key witness was a vulnerable young woman with a history of learning difficulties giving evidence against her family. There were limited opportunities to fully precognose her. FS refused to provide a precognition to the applicants at all. There was a reasonable basis for the applicants to consider that the case was well founded. I do not consider that in the circumstances of this case it is appropriate to look at the evidence through the prism of hindsight and to penalise the applicants on expenses. I have concluded that there should be no award of expenses due to or by any party in this case. I certify the case as suitable for the instruction of junior counsel given the novelty and complexity of the case and the importance of the subject matter to the parties.