Forced Marriage Protection Cases – Key Principles

Hello. Welcome, everybody. Money softer. Mahmoud, on a very pleased to welcome you to today's bys. I session through data law today that I'm going to be speaking to you about forced marriage protection orders and solved a key principles and so far as this area is concerned, so with this area, you appreciate that this is a particular form off application on the the Family Law Act in 1996 Section 63 Andi It's one which, of course, in terms of the procedure, Loehmann's is contained within the family procedures of 2010 onder, particularly part 10 off the family procedures. Now we've got di changes that came about as a result, off the Force Married Civil Protection Act of 2007 that brought about the new Section 63 at the Family Work of 1996 part that you'll be aware that although we had the family work of 1996 section 62 63 particularly which looks at associated persons, this particular provision was brought in by way of a new part for a to the act Onda designed specifically don't deal would force marriage cases. Many of you will be familiar that off familiar with the applications that often are sort for non molestation orders under Section 42 are defined in the act of 1996. On also occupational orders under section 33 to 38 of the famine worked, ONDA forced marriage protection orders. Although they are different to normal, estacion orders and occupation orders actually do have a lot of similarities of those as we'll see shortly. So like, say, these forced marriage protection orders are contained in the family procedures on Part 11 in particular covers the's on. There's elements of these in part and also on dirt. These applications were then brought in by where force Much protection orders on in November 22,000 nights at a been in place for some time now. If we look at some of the key provisions at this, for example, Section 63 Capital, a subsection one which provides that these orders coming made by court for the purpose of protecting a person from being forced into a marriage or for money attempt to be forced into a marriage or person who has been forced into a marriage. Okay, so it's important bay in mind that these waters are not just to assist situations whereby person is in the process of being forced or is about to be forced, and therefore to try and protect that person by effectively prevented a mind from going ahead and as well as ancillary orders. But also these orders are off vital importance where somebody has already been forced into marriage. It's farce than getting and celery orders, such as return off the person concerns such as having ancillary orders in relation to return of documentation, collection of documentation, for example, and also prohibiting Barnes and threatened behavior in deciding whether or not to exercise its powers. The court must have regard to order circumstance of the case, including need to secure the health, welfare and well being of the person to be protected. So you can see the criteria here is very similar to what we have for normal estacion orders were buying the Section 42 subsection five of the family work the court take into account all the circumstances again phenomenal station orders taking into account specifically the need to secure the health, safety and well being of the parties concerned, and in ascertaining the person's well being. The court must have regard for persons which and feelings, and so far they are reasonably ascertainable, as a court considers appropriate. In the circumstances, of course, wish and feelings will play a significant pivotal rolled in these circumstances. So this provision dis acting, which brought this in the force. My Civil Protection Act of 2007 which brought in the new section 63 to the act, is such that enables the court to make orders to protect the victims or potential victims were forced. Marriage has always a bad take place on to help them to remove them from that situation. And the courts do have a wide discretion in the types of waters that may be made in these circumstances. Okay, So, like said it could be used to protect a person being forced into marriage, attempt to be forced into a marriage and also a person who has actually be enforced in the circumstances. On what does force actually mean what this is way? If you look at Section 63 capital, a subsection one defines forces including coercion by threats, so other psychological means and therefore it could be threats could be threats in terms of violence or threatening behavior. Corby. Psychological as well on this is where many of you would know that there's been cases over the years which looked specifically at applications for nullity on declarations off nullity, whereby one wouldn't need to rely upon evidence to show that if one is seeking to avoid amount on the basis of Section 12 c of the much money cause that 1973 1 is looking to establish lack of consent. Lack of consent could be where somebody is forced into a marriage, for example, and that could be the result off violence or threatening behavior or other forms of physical conduct, or protect a form of psychological and emotional harm as well. And that's again were forced here for the person Section 63 a includes questioned by threats or other psychological means in that, because that brings this symptom plate now who may well be the applicant than for forced marriage protection orders with the applicant at work. Often, order doesn't need to actually be, uh, theater, a person seeking the protection. In the circumstances, it could be somebody else. It could be, say, a relative of a victim. Here's a plank or any of the relevant, said party when the other person which requires leave of the court So it may be that say it is a 16 year old who is the alleged victim and say the 16 year olds mothers apply, for example, as a relative of the victim, is the mother of the victim applying on behalf of the victim. Shoot required leave of the court. A relevant Fed party really includes the local authorities. Are they under the relevant party? Order is untouched. Apply for these orders as off right. They wouldn't need leave of the court on any other person who secures leader of the court can also apply. So the police, for example, sometimes will apply for these orders and they would require leave of the court before they can of course, perceive this so that that is possible in the circumstances. Also, respect off seeking leave. The court considered the sad part his connection with the person to be protected on also the degree of their knowledge concerning the victim and circumstances. Again, the court need to take into account the wishes and feelings of the person to be protected in those circumstances also, so consider the applicant could be the alleged victim. But if I could be a said party, either irrelevant said party or often it's a relative of the victim or some other parties, such as Maybe the police are indoor circumstances who then maybe a respondent in these circumstances. And this is where the respondents do not necessarily be the other person to force marries. So it may not necessarily be the person who that person is being forced into to marry or has been forced to marry. The respondent could also be somebody else who is subject in that child or adult to question or do us in those circumstances. So it may be the case that, say, the respondent, his, maybe the mother and off under the father of the child of both Woody adult in those circumstances, in that they are forcing their child or the adult to marry a man of their choice. For examples that could be indoor circumstance and therefore the response there could be the parents off the off the victim. Indoor circumstances on the court does have the power to n jumped conduct that his anticipated and apprehended, as well as making orders against any repetition of conduct, which my wardy occurred in the circumstances. That's a position with who may well be respondent with a look at what these older match containing these orders can be very wide. This is where Section 63 B Capital B of the act sets specifically, uh, information relating to the contents off these orders. So force much protection order may contain prohibitions, restrictions or requirements on such other terms that court feels on considers relevant in the circumstances it could relate to conduct not only in England, Wales but indeed also conduct outside ing the miles in those circumstances on, uh, this could relate to situations where the respondents have forced the person to enter into a marriage or attempted to force that person to enter into a marriage, for example, in those circumstances, so it could be examples could include, for example, if somebody is aiding or abetting or procuring. Go encouraging another person to force or attempt to force a person to enter into marriage, for example, if they are conspiring to force or time to force that person to enter into mouth so you can see it's very wide in that regard. So the contents off the order were very, of course, but it could be a geographical scope. Likes are not limited to jurisdiction of in the wells, for example, so it could relate to conduct occurring overseas. Uh, it could contain prohibitions or restrictions in that, because of prohibiting violence behavior, harassing, pestering, interfering with it could also take the form of other ants early orders, such as preventing the force marriage from actually occurring. It could require passports per handed over if there was a threat or fear that the person is being taken overseas. For example, to get married, it could be used to stop intimidation and forms of violence. It could also be used to review the whereabouts of a person, don't circumstances and, like, say, to prohibit somebody from actually being taken abroad in the circumstances. The order is wide enough by WEF and Celery August. He also prevent contact between a particular person and a child, or the adult, for example, or even can be used to allow a change of serving, for example, so as to make it more difficult to be able to locate that person in your second stances now can to court actually make the order off its own initiative. Well, the court can, and this is where the court can make you order of its own initiative of its own volition. In that regard, the court may therefore make an order without an application be made or where their other family seems before it, so that it is possible for the court to make the order with its own volition. Therefore, without a formal application before the court, Were there other family proceedings before it? If the court considers that forced marriage protection order, isn't it safe to protect a person irrespective of whether or not that person is a part of existing proceedings than provided the other person would be a respondent to force my protection order? It's a part of the proceedings than the order coming made in those circumstances. Putting it simply, the court can make these orders off their own initiative and their own motion in existing proceedings. Now it's very important to bear in mind that the respondent to the application doesn't need to be given, opting to make their representation. So if a without notice order is made then the respondent must be given the opportunity to make representations as soon as he's just inconvenience of this famous ties in with Section 45 subsection three of the family, like from 1996 in relation to without nor, disorders so here for without nor disorders made in response needs to be given the opportunity to really argue their corner by way of having a hearing which is just inconvenient in accordance with the provisions there. The forms that are filled in for seeking a forced marriage protection order off for F l four or one a f l for a one A on def leave is being sort and that needs to be made on a form a and if the application is being made without notice to the other side, and that must be accompanied by a statement setting out why notice is not being given the circumstances. Okay, we notice has been given to respondent. An application must be such that the applicant must serve a copy of the application together with a notice off. Any hearing on directions appointment on form F l for two on the respondent as well as any other person who is the subject of the application as well as anybody else upon whom service has been directed by the court on this has been done no later than no less than two days before the hearing. Unless the court says otherwise so normally to clear days notice need to be given unless the court was prepared to a bridge time for service again. Very important bear That in mind, says a mention. Section 63 Capital C does allow the court to make Are the order on the order could be made without notice on the quarter could be made without formal application there in the circumstances. Okay on application, therefore, could be made without notice on that without nor disorders therefore can be made. Section 63 d in particular provides for these sort of court may wait, considers it necessary and just inconvenient to do so. Make enforcement protection order even though the respondent has not been given notice of the proceedings in the second stances. One of the other question sometimes asked is whether or not undertakings can be given in these applications on the simple answer plays they can on undertakings can be accepted. These accord by Section 63 f on the court may accept an undertaking for the respondent for forced marriage protection order if if it has power to make such an order. Undertakings as in Norfolk useful in these areas. Off applications for personal protection junctions. Because essentially no finds a factor made, the neighbors want to get the benefit of an undertaking in different terms of the order done upping soared by way from undertaking. No finds are made, but it gives the protection that are needed on. Of course, powers of arrest cannot be attached to undertakings, but nonetheless the protection is there, which could be very vital what it also does. It avoids the need for evidence to be given by the respective parties and the circumstances, which again is very important in these circumstances. Given that sometimes very difficult for people understandably to feel comfortable being able, being giving evidence against each other in relation to these applications, the intensity duration of orders Section 63 f covers this in that this provides a force. Much protection order may be made for a specified period or until favored of discharge, so without notice, order may be made for a short period of time. But of course, as I mentioned, Section 45 3 particular requires there to be a return date. So it's been a pretty respondent and type in a position to be heard and put forward their position thereafter. WASA position with powers off arrest what? These also can be attached, of course, pursuant to section 63. Page after court considers that the response has used or threatened violence against the respondent, but against the person being protected. Otherwise in connection with the matters dealt with, didn't may attach a power of arrest to one or more of provisions of the order. Unless the court considers day in order circumstances there is adequate protection available without the need for a power off arrest. So you concede a criteria for this is very similar to what we have for the criteria for touching a power off arrest One occupation order under section 47 of the Family Lord from 1996. Now, as I mentioned in terms of the procedural elements for force, much protection or this user code by part 11 of D family. What? Uh, so I d of part 11 Soviet to fund procedures of 2010 which covers applications under Part four of the family white and therefore recovers forced marriage legislation. Now it's also important notes that some years ago forced marriage also became criminalized. As a result, part 10 of the anti social behavior crime and policing jacked off 2014 on his two offenses. The first offenses breach off a forced marriage protection order so that there is the offensive breach which is now contained, uh, within section 63 c a s o section 63 c a. On that that this safe was defense off breaching forced marriage protection which can carry a maximum penalty of five years. And it's also the offensive force marries, forcing someone to my against their will on the person will be convicted of this offence if they have used violence that saw the form of a question for the purpose of causing another person to enter into a marriage or they believe or reason to believe that conduct may cause the other person to enter into marriage without their free will and consent on. A person is guilty of this offence off forcing somebody to marry on summary conviction they are liable to imprisonment for a term not exceeding two months or fine or both on on conviction on indictment to prison of a term like seeding seven years you can see. Certainly a significant prison sentence could be imposed in event off conviction for forcing someone to marry. Now this brings me on to this case of West Sussex County Council into Chief Constable another's. This was a case handed down in 2018 which is one whereby the police had applied for leave but to apply for without notice, force much protection order in relation to two Children. Uh, these Children had been take to Pakistan by their parents and also the aren't on the order granted was granted on it was served on the parents and the aunt and a record at providing for direction that the response were to immediately make travel arrangements for a teacher to return to the jurisdiction of England Wells within 48 hours of service of the order upon them and, uh, respondents was therefore served with disorder and therefore day were required to make arrangements for the return of the Children within 48 hours. And, of course, they did return, but it took some seven days to return to the jurisdictional England Wales. And this is where his lordship said, that it's very important that, given a nature forced marriage protection orders that these answer the orders could be made. There could be circumstances where by this could be incredibly difficult upon the response to be up to fully comply with on if they were not able to fully comply with the spine showing that the Children were returned on the site dates and time, then this could have potentially significant consequences for them. Day by with any committed application and possibly being arrested where impact with terms, they may not have had the opportunity of taking legal advice or to return the matter to court in these circumstances. So again, it's it's really a very strong case, which is a reminder to ensure that the court he's able to weigh up the impact on the respondents off the breach of the ancillary orders to these forced marriage protection orders. In the second chances find it and I just wanted to mention a position with standard water so that there are various standard forced marriage orders which are available on de certainly is worth looking at these when you ever look at the standard orders put together by the president last year in 2018 particular and also which will put together previously by Mr Justice Monster. So that in relation of forced marriage protection orders fix on part of standard orders called to relate to matters relating to the respondent being forbid it Forbidden from forcing attempt to force instructing, go encouraging any other person have forced a person to be protected to undergo any Salmoni off marriage. And also, of course, it would involve, for example, civil partnership or engagement food, for example of Beth Natural on also to instructor, encourage any other person to be protected to undergoing someone indoor circumstances. It could also cover. For example, facilitating. Orland called the wise permission the person to be protected turn to go any such ceremony on Also think over somebody other elements which we have phenomenal station orders, such as to prohibit using or threatening violence against a person while there was instructing encouraging any other person to do so or to intimidate that person have also pester them, instructing go encouraging any other president so on specifically to remove secretive removal instructor, encouraging any other person removed up person to be protected from a jurisdiction within the wells. And also that could be prohibited from leaving the jurisdiction within the walls so you can see the orders. Can we have a wide given the particular circumstances so as to give that protection that may well be necessary in the circumstances? Okay, so you can see I've covered a number of issues today, particularly. We've looked at the position forced marriage protection orders and also what these can provide for North. Sort of the wording off different provisions in that regard as well. It's, um, recent case law. Can I thank you very much for listening. I hope that's been a useful session for you. And I speak you next time. Thank you. Bye. For now.