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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> K (Forced Marriage: Passport Order) (Rev 2) [2020] EWCA Civ 190 (21 February 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/190.html Cite as: [2020] EWCA Civ 190, [2020] 2 WLR 1279, [2020] 1 FLR 904, [2020] 2 FCR 406, [2020] WLR(D) 107, [2020] Fam 283 |
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ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
THE ORDER OF HHJ TUCKER
BM15F00007
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE PETER JACKSON
and
LORD JUSTICE HADDON-CAVE
____________________
Re K (Forced Marriage: Passport Order) |
____________________
Seema
Kansal and Marlene Cayoun (instructed by National Legal Service Solicitors) for the Appellant
Jason Beer QC and Alice Meredith (instructed by Staffordshire and West Midlands Police Joint Legal Department) for the Respondent
Sarah Hannett (instructed by the Government Legal Department) for the First Intervener the Secretary of State for Justice
Henry Setright QC and Jacqueline Renton and Jonathan Evans (nstructed by Dawson Cornwell) for the Second Intervener Southall Black Sisters
Hearing date : 27th November 2019
____________________
Crown Copyright ©
Sir Andrew McFarlane P :
"10. The protected party's (K's) passport and other travel documentation shall be held until further order by the West Midlands Police.
11. The Respondents [named] are forbidden from applying for any new passport or any other travel documentation for K from the UK Passport Office or from any other foreign passport agency."
The Appeal
(a) whether the court has jurisdiction, and if so should that jurisdiction be exercised, where the individual said to be requiring protection is an adult who does not lack mental capacity to make any relevant decision, and who opposes the FMPO;
(b) whether the Family Court has jurisdiction, as part of a FMPO, to require the protected person's passport to be removed and retained by the authorities and, if so, whether that jurisdiction extends to making an open-ended or indefinite "Passport Order";
(c) what approach should a court take when determining issues such as this where there is apparent conflict between, on the one hand, a person's right to be protected by the State from inhuman or degrading treatment or punishment sufficient to engage Article 3 of the European Convention on Human Rights ("ECHR") and, on the other hand, that person's autonomy and right to respect for private and family life, including the right to travel, under Article 8.
The Statutory Context
63A
(1) The court may make an order for the purposes of protecting—
(a) a person from being forced into a marriage or from any attempt to be forced into a marriage; or
(b) a person who has been forced into a marriage.
(2) In deciding whether to exercise its powers under this section and, if so, in what manner, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected.
(3) In ascertaining that person's well-being, the court must, in particular, have such regard to the person's wishes and feelings (so far as they are reasonably ascertainable) as the court considers appropriate in the light of the person's age and understanding.
(4) For the purposes of this Part a person ("A") is forced into a marriage if another person ("B") forces A to enter into a marriage (whether with B or another person) without A's free and full consent.
(5) For the purposes of subsection (4) it does not matter whether the conduct of B which forces A to enter into a marriage is directed against A, B or another person.
(6) In this Part—
"force" includes coerce by threats or other psychological means (and related expressions are to be read accordingly); and
"forced marriage protection order" means an order under this section.
63B
(1) A forced marriage protection order may contain—
(a) such prohibitions, restrictions or requirements; and
(b) such other terms;
as the court considers appropriate for the purposes of the order.
(2) The terms of such orders may, in particular, relate to—
(a) conduct outside England and Wales as well as (or instead of) conduct within England and Wales;
(b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who force or attempt to force, or may force or attempt to force, a person to enter into a marriage;
(c) other persons who are, or may become, involved in other respects as well as respondents of any kind.
(3) For the purposes of subsection (2) examples of involvement in other respects are—
(a) aiding, abetting, counselling, procuring, encouraging or assisting another person to force, or to attempt to force, a person to enter into a marriage; or
(b) conspiring to force, or to attempt to force, a person to enter into a marriage.
63CA
(1) A person who without reasonable excuse does anything that the person is prohibited from doing by a forced marriage protection order is guilty of an offence.
(2) In the case of a forced marriage protection order made by virtue of section 63D(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when the person was aware of the existence of the order.
(3) Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court.
(4) A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court.
(5) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.
(6) A reference in any enactment to proceedings under this Part, or to an order under this Part, does not include a reference to proceedings for an offence under this section or to an order made in proceedings for such an offence.
(7) "Enactment" includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978
63F
A forced marriage protection order may be made for a specified period or until varied or discharged.
Key principles
"Cases of forced marriage do not just involve private individuals, but they involve the State undertaking an active and positive role in the protecting of an individual from themselves and, normally their community. …When considering what protection should be put in place for a victim in what is near-universally by definition a family setting, the Family Court has to undertake a sensitive and careful balancing exercise. The issue in such cases is not whether there should be State intervention, but rather what that intervention should be, taking into account human rights considerations (in particular Article 3) and the victim's standpoint and views. Where the court's obligation to protect a victim does not conform - as in the instant case - with the victim's expressed wishes – the court must be particularly careful as to how it evaluates the evidence and reaches a conclusion as to what, if any, protective orders should be put in place. …Ultimately though, the court's primary focus is likely to be to prevent a victim being left unprotected and exposed to the risk of further harm, and a breach of their Article 3 rights." (original emphasis)
1) Preventing a breach of the right to marry under ECHR, Article 12 (see R (Quila) v Secretary of State for the Home Department [2011] 3 WLR 836);
2) Discharging the UK's positive obligation under ECHR Article 8 with regard to the right to respect for private life and the protection of the moral and physical integrity of individuals by enhancing or liberating the autonomy of a vulnerable adult;
3) Discharging the UK's positive obligations under ECHR, Article 3 in cases where forced marriage may give rise to a real risk of behaviour sufficient to engage Article 3. In cases in which the Article 3 threshold has been crossed, the UK has an obligation to take reasonable steps to prevent a real risk of inhuman or degrading treatment at the hands of non-State actors, which includes treatment which may be imposed outside the jurisdiction;
4) Discharging the UK's positive obligation under ECHR Article 5 with respect to deprivation of liberty;
5) In particularly serious cases, discharging the UK's positive obligations under ECHR Article 2.
a) As with a FMPO under FLA 1996, Part 4A, a court's powers to make a FGM Protection Order under the Female Genital Mutilation Act 2003 are in very broad terms and the 2003 Act provides no real guidance as to the approach the court should take when determining whether and, if so, in what manner to exercise its powers;
b) Although Article 3 is an "absolute" right, the concept of "proportionality" is not irrelevant where the duty upon the State is to protect people from the harm which others may do to them, in distinction to the direct actions of the State's own agents to take life or seriously ill-treat people (E v Chief Constable of the Royal Ulster Constabulary [2009] 1 AC 536);
c) There is, thus, a distinction between the State's negative and positive obligations under Article 3 as described by Baroness Hale in E v Chief Constable of the RUC (paragraph 10):
"…nevertheless, there must be some distinction between the scope of the State's duty not to take life or ill-treat people in a way which falls foul of Article 3, and its duty to protect people from the harm which others may do to them. In the one case, there is an absolute duty not to do it. In the other, there is a duty to do what is reasonable in all the circumstances to protect people from a real and immediate risk of harm. Both duties may be described as absolute but their content is different. So once again it may be a false dichotomy between the absolute negative duty and a qualified positive one…"
"41…Whilst there can be no derogation from N's Article 3 rights, the interference with her Article 8 rights, and those of her siblings and family, must be limited to that which is necessary to protect her Article 3 rights. Of course, though this is relatively easy to state, it is difficult to apply on the facts of this case, and I suspect, in FGMPO applications generally."
I, too, agree that Hayden J's observation neatly encapsulates the approach to be taken and highlights the difficulty of the court's task in each individual case.
"31. Before turning to the parties' submissions, I make the following observations. I would agree that, as referred to by the judge in this case, the rights engaged by both Article 3 and Article 8 of the European Convention on Human Rights will clearly be relevant to the exercise by the court of its powers to make an FGMPO. I would also agree that, when deciding how to exercise its powers, the court must balance a number of factors. The court will have to consider the degree of the risk of FGM (which, I would suggest, needs to be at least a real risk); the quality of available protective factors (which could include a broad range of matters including the court's assessment of the parents); and the nature and extent of the interference with family life which any proposed order would cause.
32. The need for specific analysis balancing these and other relevant factors extends to any additional prohibitions or other terms the judge may be considering including in the FGMPO. This is because each term included within the FGMPO must be separately justified. In this exercise, although the nature of the harm would, self-evidently, be a breach of Article 3, it is the court's assessment of the degree or level of the risk which is central to the issue of proportionality and to the question of whether a less intrusive measure, which nevertheless does not unacceptably compromise the objective of protecting the child, might be the proportionate answer.
33. This reflects (and, in part, adopts) what Lord Reed JSC said, when dealing with proportionality, albeit in a very different context, in Bank Mellat v HM Treasury (No 2) [2014] AC 700. I propose to quote only the last two elements he identified when setting out that its "attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit" (paragraph 74 of his judgment on the substantive appeal):
"… it is necessary to determine … (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter … I have formulated the fourth criterion in greater detail than Lord Sumption JSC, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure."."
(1) whether the objective of the measure pursued is sufficiently important to justify the limitation of a fundamental right;
(2) whether it is rationally connected to the objective;
(3) whether a less intrusive measure could have been used without unacceptably compromising the objective; and
(4) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
(See Bank Mellat: Lord Sumption at [20]; and especially on question (3), per Lord Reed at [70] to [71] and [75] to [76]).
FMPO Applications: A Routemap to Judgment
"…The first is the nature of the relief given by the Act. It is protective - quasi injunctive – and does not depend upon a complex factual matrix. The person to be protected has for most of the proceedings not sought actively to disturb the order. If, therefore, the view is taken that there is a proper basis for the court's exercise of its jurisdiction under the Act an order under the Act can properly be made ex parte.
…
93. This leaves the wider question as to whether or not special advocates are needed to resolve the issues of fact which may arise on any application to discharge."
Passport orders
"• prohibiting the removal of the person to be protected ["PTBP"] from the jurisdiction;
• prohibiting the named respondent from applying for a passport or other travel documents for the PTBP;
• for surrender of passports and order for the Identity and Passport Service to cancel any passport issued and not to issue any further or new passport without leave of the court."
"The removal of an individual's passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual's freedom and personal autonomy. It is never an order that can be made lightly."
Passport order: Conclusion
The judge's judgments
"Had I considered it necessary to do so at the time, and in accordance with K's welfare, I would have explicitly stated that I considered it more likely than not that she was the victim of coercion and threats, the objective of which was to ensure her cooperation to marry/punish her for refusing to do so."
Discussion
Conclusion
Lord Justice Peter Jackson
Lord Justice Haddon-Cave