Presentation on theme: "Forced Marriages: Sufficient Legal Protection? Anne-Marie Hutchinson OBE Dawson Cornwell Solicitors,15 Red Lion Square, London WC1R 4QT. Tel:020 7242 2556."— Presentation transcript:
Forced Marriages: Sufficient Legal Protection? Anne-Marie Hutchinson OBE Dawson Cornwell Solicitors,15 Red Lion Square, London WC1R 4QT. Tel:020 7242 2556 Fax:020 7539 4841 Mobile:07932 086 173 Email: firstname.lastname@example.org
Proceedings under the Act S63A: 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 marriage Criteria: All the circumstances including the need to secure the health, safety and well-being of the person to be protected; Such regard to the person’s wishes and feelings … as the Court considers appropriate
The applicability of S63A is extended by subsection (5) which provides that: 5)For the purposes of subsection 4 (which defines a forced marriage for the purposes of the Act) it does not matter whether the conduct of B which forces A to enter a marriage is directed against A, B another person And further by S63B(2) which states: 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 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
The ‘cast list’: a practical example A woman, aged 18, makes a complaint to the police, supported by her boyfriend, that she is to be forced into marriage with a relative. Her parents are the primary perpetrators, though her brother and sister support them. Her family are aware of her relationship with the boyfriend, and her male cousins have made threats to him to stay away. The boyfriend has family in Pakistan, who have been threatened by other family members residing in that jurisdiction. The girl does not wish to inform her family of her opposition stating that it would ruin her life if her family were aware of the complaint Questions: Who should initiate proceedings Who should be named as defendants? How can the woman's position be protected? What orders may be sought?
Who should initiate proceedings? Police, Local Authority or on behalf of the protected person? In the example above, must be the Police or the Local Authority, though Police would need leave under S63(C)(3) Which of the two depends on who is best placed to act and to offer the appropriate protection Police should consider whether there are likely to be concurrent criminal proceedings and, if there are to be, how ongoing civil proceedings may affect a criminal prosecution If protected woman not Plaintiff she should be referred to specialist solicitors and joined, through them, at the ex parte stage The position of the boyfriend: Entitled to protection by virtue of S63B(1) and S63B(2)(c) Within the main order of on his own application? Could make standalone application due to the terms of S63A(5) alongside S63C(2)(a)
Who should be named as Defendants? Parents Brother and sister Cousins (as their actions, although not directed against the woman directly, may be covered pursuant to S63(1)(5) Prospective groom and, if appropriate, his family? Family members in Pakistan (conduct outside of the jurisdiction being covered by S63(B)(2)(a))
Disclosure issues: protecting the source of information Must consider the disclosure position at an early stage… if the person to be protected has made a complaint but does not want her family to be made aware it will greatly affect how the case will be conducted Will not necessarily be the subject of the order who needs to be protected by way of limited disclosure – an application may be made to protect any source who may be at risk if their identity, or the information disclosed, were to be revealed Recently considered by Sir Nicholas Wall, President, in A Chief Constable & AA v YK and Others  EWHC 2438 (Fam), in which it was held that: Whether the test for non-disclosure is one of PII or a balance of rights under the ECHR, “in a forced marriage or "honour" violence case, circumstances might well arise in which disclosure of sensitive information is likely to lead to the risk of serious harm to the giver or the source of that information” – para. 87 “Disclosure is the norm and the case for non-disclosure has to be "compelling".” As per A Local Authority v A  1 FLR 545 It may be that the power to withhold disclosure is inherent within the protective function of the Act itself – para. 91
But… what about disclosure of an HBV expert’s report? A Chief Constable was eventually compromised by consent based upon the recommendations of an experts report which was not disclosed to the parties However, in A County Council v SB  EWHC 2528 (Fam) the President confirmed the position that 'disclosure is the rule; not the exception: indeed for disclosure not to take place the circumstances have to be exceptional' in consideration of such a report This potentially places an HBV expert, considering the wishes and feelings of an alleged victim, in a very difficult position. It seems to be vital that: The disclosure position in relation to such a report is considered prior to instruction The provision for the disclosure of the report must be made clear in the letter of instruction The subject of the report must be made aware of what, if any, of the disclosures they make to the expert will then be aired in open court It must be kept in mind that the disclosure of all comments made to an HBV assessor to all parties may significantly reduce the effectiveness of the process
Suggested procedure for determination of disclosure It is therefore apparent that the cases (A Chief Constable & AA, A Local Authority v A and Re T (Wardship: Impact of Police Intelligence) EWHC 2440 (Fam) suggest the following procedure: Disclose all available documentation to the Court; Raise disclosure point at ex parte application, consider summarily and exercising great caution what, if anything, may be disclosed at that stage either in full or partially redacted; Establish at first inter partes hearing a process by which disclosure may be considered in full by the Court to allow examination of what may and may not be passed to the Defendants; Depending on what disclosure is authorised establish a procedure to allow full testing of evidence (potentially involving the appointment of Special Advocates, though the President in A Chief Constable felt that such situations were likely to be rare)
What orders? Extensive range of protection available S63B(1): A forced marriage protection order may contain – a)such prohibitions, restrictions and requirements; and b)such other terms as the court considers appropriate for the purposes of the order May protect ancillary characters (e.g. boyfriend if does not wish to make own application) Provisions may include: Protection from marriage, including prohibitions on specific ceremonies if organised; ‘non-molestation order’ type provisions More creative or severe orders… Disclosure orders if victim has been removed from home or it is feared they may have been removed from the jurisdiction
Power of arrest? On ex parte application: Where the Court considers that the respondent, or any of them, has used or threatened violence against the person being protected or otherwise in connection with the matters being dealt with by the order, the Court may attach a power of arrest to one or more provisions if it considers that there is a risk of significant harm to a person attributable to conduct of the respondent On inter partes application: Where the Court considers that the respondent has used or threatened violence against the person being protected or otherwise in connection with the matters being dealt with by the order, the Court must attach a power of arrest to one or more provisions unless it considers that, in all the circumstances, there would be adequate protection without one
The first inter partes hearing Consideration of undertakings, if appropriate (governed by S63E) If not possible to resolve the matter at this stage, what directions are required to adequately progress the case, including: Filing of evidence on the part of the Defendants; Management of the disclosure process; Consideration, if there is to be a disclosure argument, of how the case may be contested with reference to the defendants Article 6 rights Listing of final hearing
The conclusion of the FMCPA proceedings Possible paths upon which the case may continue: Care proceedings, if the person being protected is under 17, or potentially if the forced marriage is proved and there are younger siblings; Nullity, if the forced marriage has been proved and the victim is within the statutory time limit (3 years); Declaration that there was marriage capable of recognition celebrated between the victim and the spouse, on the ground that the victim did not consent (B v I (Forced Marriage)  1 FLR 1721)
Practicalities Use of the Tipstaff – always available in London, if making an application for Tipstaff orders outside of London (S9 Judge only) asks that the Tipstaffs office be contacted first: Tipstaffs, Office, Room M9, Royal Courts of Justice, Strand, London, WC2A 2LL. Tel: 020 7947 6200 / 6713 (Business hours Mon-Fri), Fax 020 7947 6664. 01375 378805 (Out of Hours emergency use only 24/7, 365 day Cover).
Draft Order TO: Y, R, Z, S and M YOU MUST OBEY THE DIRECTIONS CONTAINED WITHIN THIS ORDER, AND PARTICULARLY PARAGRAPHS 1, 2, 3 and 4 HEREIN. IF YOU DO NOT YOU MAY BE FINED, SENT TO PRISON OR HAVE YOUR ASSETS SEIZED. IT IS ORDERED THAT: The Defendants Y, R, Z, S and M are forbidden whether acting alone, jointly or jointly with another or by instructing, encouraging or suggesting to another person to: take any steps to cause or permit A to undergo any ceremony or purported ceremony or betrothal of marriage whether civil or religious in the United Kingdom or elsewhere outside the United Kingdom until such time as this order is varied or alternatively discharged; to aid, abet, counsel, encourage or assist any other person to take any steps to force or to attempt to force or to cause or otherwise permit A to enter into a marriage whether civil or religious in the United Kingdom or elsewhere outside the United Kingdom until such time as this order is varied or alternatively discharged; to use or threaten violence against A until further order; to intimidate, harass or pester A until such time as this order is varied or alternatively discharged; to remove A, N and/or NK from the jurisdiction of England and Wales until such time as this order is varied or alternatively discharged; The Defendants Y and R are forbidden to: Make any application for; or To obtain or seek to obtain; or To knowingly cause, permit, encourage, or support any steps being taken to Apply for any passport whether a UK passport, Pakistani passport or any ID card or other travel document which would enable A, N or NK or any of them to leave the jurisdiction of England and Wales until such time as this order is varied or alternatively discharged; Y, R, Z, S and M shall forthwith upon service of this Order upon them, and at any such time as the Police may request allow the officers of the Police access to A alone, without the presence of any other persons at a time and on a date and at a venue to be arranged by the Police and notified to the Defendants herein; The Defendants herein are prohibited from seeking a transcript of the hearing
Practical and procedural consideration, Conducting an application under the Forced Marriage Civil Protection Act 2007 The issues that arise in a Forced Marriage case can be complex and will arise out of a set of circumstances unique to each case. Often there will be a wealth of information from various sources, schools, social services, the police, friends and family. In some cases there will be little in the way of information save for the testimony of the victim, made through a third party. It is essential that careful consideration is given to the manner in which the proceedings will be conducted and potential enforcement before the application is made. The application and supporting evidence must be conducted with a close eye on how the order is going to be put into effect and who/what will it be enforced against.
Commencement Where is the victim? Where is his or her passport? If overseas – issue in High Court: Who is to be Plaintiff? Join the victim as next friend or as Plaintiff. If victim is overseas; consider Are all the adult family members overseas? If not who is here and where? If so are any of them likely to return in the short term, if so, consider delaying service. Land Registry search of home. Consider wider family members to be joined as Defendants i.e uncles and brothers. Costs of flight and emergency passport – can the FCO be put in immediate funds? (FCO – undertakings)
Seek recovery of repatriation costs from the Defendants. What needs to be done if victim needs immediate repatriation? Are there flights? Is there a refuge space until she leaves? Where is victim to go on return? Notify Local Authority – seek direction for short report from Local Authority with details of proposals for support. Where victim appears to be a vulnerable adult seek early direction for disclosure of prior reports/assessments and direction to relevant adult mental health services, agency. Ensure port alert is placed so that victim is not repatriated without authorities being aware.
Consider whether there are ex parte orders directed to agencies that need to be complied with before service of inter partes orders. Consider what information should be redacted. If information is to be withheld (i) who from? and (ii) for how long? Should the Defendants be made aware of its existence/likely existence?
Post proceedings Ongoing proceedings? What form should they take? Care, Wardship, Family Law Act, FMPO? Essential support package to be put in place. Engage relevant NGO for support as well as relevant Local Authorities. Change of name – is one required? Decree of Nullity? Declaration of marital status?
Prevention Where proceedings are required to prevent the removal of a victim from the UK, the proceedings should be issued in the nearest designated county court. Note if victim is in hiding do not issue in the court local to him/her. Immediate contact should be made with the Forced Marriage Unit, are they are of the victim? Do they have any current or previous reports?
At the earliest stage, it is important to identify the names and addresses of all immediate adult relatives. Who should be named Defendants to the proceedings? Are there any other persons who have influence or involvement? Consider whether passport orders should be made to prevent the Defendants leaving the jurisdiction. Only the High Court can detain foreign passports.
Who will be Plaintiff? How is application to be funded? The victim will always be joined as a party. In all circumstances, obtain an order for the collection and holding of the victim’s passport to prevent removal from the jurisdiction and port alert. The passport agency should be notified that no further passport should be issued. It is clearly important to identify at an early stage (i) what passport or passports have been issued to the victim (ii) and whether there are any pending applications for a passport.
Again, consider carefully what information should be disclosed within the court proceedings the victim must have their say in this. For example, the fact that a victim has a relationship that her parents do not approve of (or may not even be aware of) could put the victim at risk of physical harm if disclosed. Many cases the person who is providing information is a sibling who for their own safety cannot be identified. Are the sources of information content to have their identity revealed?
Identify means of enforcement at an early stage – namely, assets owned in this jurisdiction and secure them. Within proceedings, obtain leave to disclose court orders made to the Forced Marriage Unit, the relevant High Commissions and Embassies and police authorities. Lawyers and workers in the field should be wary of calls from family members, or siblings, ostensibly giving instructions on behalf of the victim or seeking information concerning the victim’s whereabouts. The safety of the victim should be uppermost in mind.
Public funding consideration 1.Under 16 years 2.Prima facie evidence of overseas - completion of application 3.Updating on repatriation