Hello, Good morning everybody very pleased to welcome you to today's session through data law. This is session to then where I'm taking you through forced marriage protection cases and FgM protection cases. Some of the key principles names? Safta Mahmoud. This likes a session to and in the previous session you remember I spent some time looking specifically at forced marriage protection order applications in terms of who can apply to position with uh the idea that whether it's going to be applied for without notice, otherwise powers of arrest undertakings and also some of the case law surrounding such applications. Today, I'm going to be developing further by looking at some more case law on the position to forced marriage protection order cases and also some of the guidance and I'm also going to be looking at the law relating to FGM protection orders in that regard as well. Okay, so there are a number of things in this session, I'll be Covering with you and I'm looking at the laws of October 2021. So this is a recent case. This was a case decided last year 20 1st February 2020 by the court of appeal. Lian judgment handed down by the President of Family divisions Andrew McFarlane and it's the case of wreak a forced marriage passport order which looks at not just forced marriage but also the use of and the appropriateness of passport orders insofar as ancillary orders are concerned And the issues for the court with these firstly. What is the position with the jurisdiction of the family court when they are being asked to make a forced marriage protection order? Respect of an adult who has mental capacity as you know, forced marriage protection orders are not just limited To Children. Are they are not limited to just 16 or 17 guards who maybe force during the process being forced or have been forced by, say, their parents and therefore the Audrey's used in those circumstances. It may be done. An adult of any age is also in that category. But what if the adult does in this case, somebody who was in their 30s who was subject to without notice forced marriage protection order? What if they have capacity? Mental capacity. So there's no concerns whatsoever. They may not have capacity for the purpose of the 2005. And they are saying, well, actually they don't want to be subjected to the order. Can the judge make the order even against? They will. So that was really the first question. And secondly, his lordship identified the issue swelling passport orders as part of the female at the forced Marriage protection order. And whether there is jurisdiction to make an but ended or indefinite passport order. So as to prevent, for example, issued passports in those circumstances, can it be made open ended Or does it have to be for fine 90 period of time? So, those are some of the two of the key question is that doing in this case. Famous is emphasizing and looking at So the case itself involved a Lady who was 35 years of age like say she did not lack mental capacity to make decisions regarding her marriage. She did have mental capacity and therefore the question was as to whether she should be subject to forced marriage protection order, should be living at home in the family home together with her mother and various relatives. And this was one whereby the police had obtained a forced marriage protection order. And they of course, as you know from the previous session, I covered with you require leave. So they applied for the order and they obtained the order, they obtain a leave on the basis that there was that sufficient interest connection and legitimate interest in this person's welfare obtained leaves and then sort the order. And in fact they got without notice order. There was a risk that if the family were identified and informed, then it could place this lady at risk and that she may then be forcibly abducted. So they got with that notice order. And this was in served to prevent the the marriage from going ahead. Someone slays The police and sought an extension to the order. But this is where by now the applicant number 35 year old. She was actually saying, well actually those allegations are made and not true. And we're drawing those allegations and I basically want this water discharged. So that was the thinking behind it. She wants to order discharging. And the police was somewhat concerned that actually this doesn't seem to be true wishes, there were concerns that she still seems to be at risk because the rest of the family, most of the family are going overseas and she also wants to go and actually she is still they felt on the facts, still at risk of being subjected to a marriage against her will. So really the question that I always was, can you make an order Detecting this 35 year old whereby she who has got mental capacity is making it very clear that she does not wish to be subject to the order and in fact she wants the order that was previously made to be discharged. So his lordship looked at the jurisdiction to make these forced marriage protection order, jeez of course, provided for as I mentioned in a previous session In the family work 99 6 path away which was inserted by the Forced Marriage Civil Protection Act of 2007 says, you know, it's been in place since November two 1008. And in particular, Mr. Justice Singer in the case of SK did say some years ago, in the case of SK and adult forced marriage appropriate Relief in 2004. That concept of forced marriage is such that this was utterly unacceptable. A gross abuse of human rights intolerable, an obligation by automation And as many of you will know those of you who do the Children cases in particular will know that we've got for example, practice direction 12 J. Which was updated on two October 2017 whereby the then President of Family division, Sir James when we specifically wanted us to use the much more widened definition of domestic abuse. And in particular, his lordship said that it includes specifically this specific culturally specific forms of abuse were by that incorporates amongst others forced marriage for example. And in fact, if you have been following a domestic abuse act of 2021 which got Royal Assent on 29 April This year, you'll be aware that just recently on 11 August this Year Practice Traction 12 J. Was once again amended. You've got the new paragraph to a new paragraph two B. And a new paragraph to be specifically ah reflects the previous provisions that of domestic abuse also incorporates still the culturally specific forms of abuse such as forced marriage. So that provision is still there still in the law and therefore it's very, very important to bear that in mind in that regard it because It's a 4th type domestic abuse. Of course his lordship did say that in terms of a jurisdiction to make these orders, one would then look at section 63 B. Which we looked at last time and in particular, you remember we consider the fact that these orders can then be used not just to prevent the marriage from going ahead, But also if somebody is in the process of forcing someone tomorrow. But also even after the person has been married to then have various Absolutely orders made may contain orders, such prohibitions, restrictions, requirements, and such other terms as he felt necessary in the circumstances. It is of course possible to apply for discharge of these orders. Section 63 G does allow for that and that is possible on the facts. That is possible. In fact, it does allow quarter very discharge of forced marriage protection order, but it's got to be by way of an application by a party to proceedings. Person protect your body order or any other person affect your body or core can even do these of the own initiative. If needs be, they themselves can vary or discharge the order, but principally in practice, you'll find there will actually be an application laws. So Here was a 35 year old lady who was obviously the person who has been protected. She saw for discharge of the order and his lordship did say that the abusive nature forced marriage can of course continue way after the order is made. It can continue way after. And it's like many of these other situations that we get involving domestic abuse. Many of you would know about controlling coercive behavior. For example, that type of behavior can continue sadly even after the relationship has even ended. And as some of you are not because of the domestic abuse. After 2021, possibly in April 2022, there will be the new offense of the offense of controlling coercive behavior into serious crimes. That will be amended to also cater for situations where even if the relationship presented, if the if the controlling coercive behavior is continuing. So in a way the same principle applies to force manage the nature of this can continue for some time. When some of us have sought orders to be made. You may find that these may be made for some period of time because the risk is of course, and continues to be there. So what is the position and with a person's wishing feelings when it comes to a forced marriage protection order application. What wage does the court and give two? They wish some feelings and when it comes to issues related to capacity? Well, this is where para 31 of the judgment his lordship did say that section 63 a sub paragraph three does say that the reason factor requirement to ascertain that person's wish them feelings but considered in light of their age and their understanding. So it's obviously very similar to their Children act welfare check list. So, you've got to look at a person's age, understanding and level of maturity in looking to see what weight will be attached to their wishes and feelings. And what about there? Their capacity is a person's age and capacity going to be relevant. One deciding what to make force major protection order, Paragraph 34. His lordship said this. That the jurisdiction for making these orders in particular person is that it uses the word person under Section 63 A paragraph one The word person is not further defined. It doesn't seem to be limited by any reference to age. There is no reference at all to the person's capacity to make decisions. So it doesn't say that a jurisdiction to protect a person is limited to those people who do not have a capacity. For example, it doesn't say that. So. Therefore, with that in mind, his lordship said that there's no reference to age. There's no reference to what the person is defined as. There's no reference to capacity. And therefore, because the court has to weigh up all the circumstances, and obviously that means taking into account the persons ascertainable wishes and feelings. His lordship said that Parliament had Parliament wanted to link or limit the court's jurisdiction to make these orders by reference to mental capacity. They would have done so. And because court has to take into account to wish them feelings. But then waded up alongside all the other factors, his lordship made it very clear that the court does have jurisdiction to make a forced marriage protection or to protect an adult who does not lack mental capacity. It may be that this lady felt that she was no longer subject to the risk of this, but actually she may believe that she may be vocal in saying that she may have mental capacity to say that, but of course she may not have fully appreciate the full impact of the level of harm to her going forward from the wider family, for example. So the fact that her wish him feelings were very clear and she was competent, not in themselves, prevent the cord from weighing up the bigger picture to see whether the order was necessary in a problem and for it to continue in the circumstances. Okay, so therefore, his lordship did say that the fact that somebody who's competent and who's wishing things are very clear in saying they don't wish to be subjected to. This is not in any way an automatic trump card or determining factor to say that the order should not be made. One still has to weigh up all the other circumstances to see whether the order is necessary and appropriate in the circumstances obviously very, very important to to bear that in mind any relation to dealing with forced marriage protection order applications. Generally, his lordship also took the opportunity to provide us with effectively a route map to judgment and what this is, is this is where by his Lordships did say that there are a number of factors that we all need to be bearing in mind. There are stages that we need to think about which then enabled to court and to decide whether or not to actually make the forced marriage protection order in the first instance. So just going through these stages than the stage 1 1st and foremost, is where one man has to, the court needs to establish the facts based upon admissible evidence, applying the civil standard of proof, obviously more likely than not. So what first thing that I used to use to consider the facts? What is the evidence to support the fact of forced marriage? That's the first thing. And secondly, stage two is based on these facts. The court determines whether or not the purpose identified is established because of the fact that established is they're actually Now we need to protect that person from being forced into a marriage or form any attempt to force them or somebody who has already been forced. Is there any to protect them by way of, for example, keeping the alleged perpetrators away from them, having got the ancillary orders. So, once one has determined the facts, is there actually a need to protect the person? That's the second question that needs to be asked us to Stage two, no circumstances Kind of Stage 3s, the court would then be assisted Bye drawing up a balance sheet of the positive and negative features in the case in those circumstances. So effectively draw balance sheet of the positive and negative features. So again, you can see this mirrors what we have in for example, The 3BS type of analysis to 2013 decision as far as weighing up the advantages and disadvantages and effectively doing a balance sheet approach. So you look at the positives and negatives within the circumstances as they relate to this. Okay. And then finally You're looking at the stage four, which is artifact sufficient not to establish a rest at a person concerned will experience Conduct sufficient to satisfy article three of the you've been conditioned i subject to good A breach of Article three indoor circumstances which then necessitates the court and exercise in this expression uh huh. Doing to respect for privacy and family life. So therefore there needs to be that element of compliance with the european convention articles in that regard. So therefore going through this four stage approach, he will help the court in deciding whether or not to make the order and like I said, the fact that the person who is mentally common capacity stated mentally capable and is an adult does not themselves carried a trauma card. Then saying that the order should or should not be made, a judge has to weigh up all the wider circumstances. What's the position and with passport orders? And this is where his lordship did say that the open and flexible wording of the family 99 6, Section 63 B one is such that it does allow the court to make an order containing such probably provisions, restrictions or other terms as the court may consider appropriate for the purposes of protecting this person from forced marriage and that therefore can include, for example, in position of ban or confiscation of passports. So, as I mentioned earlier, the act is wide enough to neighbor doors and silly orders to make so many of you who have had these types of cases. We'll have cases where the forced marriage protection order made them be used to prohibit the management going ahead or if it has already happened to protect a person, if a person has been taken overseas, for example, the order could be used to require a person to be returned if the person has not been taken, but there is a threat of them being taken overseas, then there could be a travel ban or confiscation of passport. And that's where your passport orders come in. In that regard, passports be handed him, for example, to step staff and then not to be allowed to have a further passport issued, for example, and that's where these orders come in. But a question his lordship had was canon open ended passport to all travel ban be imposed. And because of course, one has to bear in mind that this person, just like any other person must be allowed to live their life. And if that means they wish to go overseas at some stage in the future, they should be allowed to do so and not have these travel bans imposed upon them, which may be disproportionate, which maybe there were initially imposed and directed to protect them, but now are going being unduly restrictive. So his lordship did say that the authorities to establish that an open ended passport or travel bank should only be imposed. The most exceptional cases. And in all other cases, of course, should in fact be imposing a time limit when making these orders. And that Were very obviously from case two ways. Case in these circumstances put all but there should be imposing a time limit if appropriate, in most cases. And certainly what case law authorities were saying. But here, in fact, Paragraph 76, his lordship did say that in relation to indefinitely open ended nature of passport order. Therefore, we should be only exceptionally making these open ended. We should actually be putting a time limit on these, taking into account of particular circumstances. So, in relation to that part of the appeal that was allowed in relation to the need for time limited passport to be issued. There will be a review hearing on that, but so far as whether the order come in made in the absence of consent from the 30 five year old who was capable of of making those decisions and who did not lack capacity. The court did say that the cork in fact make the order even in the absence of consent in those circumstances. Okay, so very important judgment. Now, when you are dealing with drafting the forced marriage protection orders, what and also with the GM orders, I would suggest that you have a look at the compendium of standard orders that these are fantastic orders which were commenting which we have made available for all of us as family practitioners a few years ago. Put a link there for you which are easily available. These were put together by the President of Family division, also by the Family procedure committee among us other professionals and they are constantly being updated to cater for new and updated changes in circumstances. And one of the things really to emphasis here is there's various types of forced marriage protection order precedence you can use as the ones related to The passport element is the one relating to travel Ban and is the final order and so forth. And the one I've taken here is the order of 15.10, which is a forced marriage final order unnoticed. And these are some of the provisions obviously you do need to look at it in form, but these are some of the provisions that provided for us Presidents and you may find that some of some of all of these are utilized in the particular case is that you may have. So here you can see provides that the respondent or each of them are prohibited from forcing attempting to force otherwise instructing any other person to force the person to be protected obviously. But the name of the person to undergo any so many purported so many of marriage civil partnership that's not to engage. You can see really, really important to emphasize that. And you can see this is therefore prohibiting not only that person, but also for them instructing encoding any other person to do so, which as you can imagine, may well be the case sometimes. And you can see it covers not just marriage process, super partnership engagement or so. And second it goes on to say instructor otherwise encouraging the person to undergo any so many reported so many marriage civil partnership beth bottle or engagement. So even covers the the ceremony in that regard. So even even engagement in that regard. So you can see the thinking behind that. Okay, it's a very, very important in that regard. So you can see the wording and therefore it's very, very important to use this standard precedence when you are dealing with these matters. Now, the other thing to bear in mind is this, we've been talking about forced marriage protection orders. Obviously these are civil orders. That one can bring actions for under the family Work of 99 6 as amended Under section four years, we said in the section 63 routes. So these are civil orders and of course also in the last session, you remember I talked about the fact that forced marriage is also a criminal offense. That is the offense of breach of forced marriage protection orders. There's the offensive forced marriage that carries criminal penalties as well. In addition to that, I think it's important to also remind you that the forced marriage protection order, If one is obtained and the criminal offenses do not in themselves bring about the end of a marriage. So somebody has been forced into a marriage, for example, then they need to be considering seeking a degree of melody. So this is where I would suggest You also need to remind yourself about section 12 of the much money of course is at 1973 as amended, which relates to the situations whereby marriages can be held avoidable On the basis of any other factors under section 12. And this is where you may wish to rely upon section 12 C. of the 1973, which looks at the position where there is lack of consent. So this is where the marriage is regarded avoidable. I can continue for as long as the people wanted to continue, but it can be avoided at the hands of the person who seeks to do just that. And traditionally used a case some years ago in 1970 for example, there was this case of Scheckter and Scheckter, which said that if one is going for a decree of nullity to therefore declare that marriage as not a void on the basis that is avoidable and therefore to regard this situation in a way that they are therefore not regard is married, Then one had to show it was that threat of immediate danger to life, liberty, Liberty. So one had to show evidence of violence, physical violence or threats of violence. But in a few years later, we had the ironic case Iran in Iran in 19 83 for example, which extended that so that it could also include psychological emotional correction as well. So here the wife was allowed to rely upon the US when her parents threatened to turn her out of the house unless you married the man of their choice. So it can of course include psychological emotional. There was another case. Some of you will note a case of PNR In 2003, for example, whereby the wife was pressurized into marrying the husband of the parents choice in those sexist and she was taken overseas believing it was that she was going to a funeral. But actually, the plan was for her to get married to man of the choice of the the parents and the family. And that's where she was felt compelled to marrying those circumstances. There was a fear of being ostracized from the community from being disowned from being ostracized from her family. And when she returned to England, she was able to successfully plead for and obtained a decree of nullity. It's also important to remind you of the defense. So sorry, the barbecues under Section 13 Subsection two of this act, which is once the person has got entered into his marriage for them to bring a decree of nullity application on the basis that are forced into marriage under the provisions on the section 12 C. In terms of lack of consent, They need to bring the application within three years on the marriage unless they ought to apply for leave beyond that and which may be granted exceptionally. So it's very, very important when you do have clients if they are seeking to decree of secret decree of nullity, very important for you to make sure that you do apply within three years or the marriage, which sometimes I appreciate some of you may think, well, that's long enough. But then what if somebody is prevented from actually leaving the family home that they've been forced into marrying and they are literally locked into that home and they are not allowed out. So that's where some of the difficulties could be in terms of literally being able to escape from the regime that there may be subjected to. So You can see what are three years, is there? So, this is something again, which is very, very important and distant goes alongside the forced marriage protection orders that have been discussing, right okay, and I want to discuss with you for the rest of this session and also for the next session, the position with the female genital mutilation protection orders, the GM orders, and as you'll appreciate this is another very significant form of abuse and a this is a form of child abuse and also violence against women and girls. And first thing to say is FGM, female genital mutilation is illegal in the UK. So we've got the female genital mutilation Of 2003 were by in England Wales and Northern Ireland FGM is illegal and has been and the act obviously makes it very, very clear. So any form of MGM and there are four different types of FGM as described by the World Health Organization. Any form of FGM is illegal. So it's very very important to bear that in mind. And this is where the actual provisions relating to female genital mutilation protection order. So therefore the Civil orders are actually contained within the act itself. So you've got section five a Sub paragraph two sub paragraph A and you've also got scheduled to part one of the female genital mutilation protection, a female genital Mutilation Act of two 1002, which actually sets out the provisions insofar as securing female genital mutilation protection orders. And these followed a similar format as the forced marriage protection orders discussed earlier. So this sets up the provision for seeking these orders in England and Wales. So it is a civil order and it can be sought then to protect a girl woman against the commission of a female genital mutilation offense. These work very much in the same way as the forced marriage protection orders we've been discussing. Okay, so who can apply for these? Well, local authorities can apply so they are irrelevant. Third parties, so they can apply just like they are relevant. Third party for the purposes of a forced marriage protection order. So they can apply for an FGM protection order. The that takes care of the woman or a child, the victim can apply themselves, okay? So they can apply themselves as well as any other person would leave. So there's been cases where, for example, the mother of her daughter has applied for leave for permission than to apply for the GM order, a protection order on behalf of her daughter. So max possible as well. The police for example can apply and they too would require leaving the circumstances, but just like forced marriage protection orders. Local authorities, as I say, are described as relevant third parties. So they wouldn't require leave of the court to make the application, but of course they India in the circumstances nonetheless made the applications in the proper cases. Now, just like we've got the position with breaches of normal estacion orders and also breach of a forced marriage protection order, breach of a force of a female genital mutilation protection order in itself is a criminal offense and it carries a maximum sentence of five years in prison. So you can see this frame which mirrors what we've got with the position with forced marriage protection orders and also breach of non molestation order carries a maximum penalty of five years in prison. And that's where there have been cases where prosecutions have been had in these circumstances. And in terms of way made the application, it can be made at certain designated centers at the family court. So it won't be in every center, so it won't necessarily be in the designated a geographical quarter that you attend. It will have to be certain designated court centers. And what you do find is it tends to be some of the larger courts that one would have to travel to to have this hearing heard in those circumstances. So that's where that comes into play. And what I want to do then is look at this case and reacts a child F G M P O. So imaginative regulation protection order. This is a 2018 Court of Appeal decision handed down by Lord Justice Moylan. And this really looks at the question of as to how broad a female genital mutilation protection order can actually be in the circumstances. The case involved an application that was made in relation to a child who was aged almost two years of age under order had provisions which prohibited the parents and each of them from then removing and then seeking to remove or instructing any encouraging any other person to remove the child from the jurisdiction of England Wales until the child had Changed the age of 16. And that was a concern. This child was just common up to two years of age. But there was a worldwide travel ban until the child turns 16. And that was really the main issue that was raised here in that the order on the facts was necessary was necessary to make the order. But the question was, should there have been this absolute travel ban made and should be made for that period of time. And so the appeal related to a challenge to the nature of the travel ban, its duration of the positive whether the actual FGM protection audition be made or not. And his lordship did say that the first instance judge was faced with the two extremes. You either which is namely either nor travel ban or complete ban. Okay, But his lordship said that they seem to be a little consideration as to the likelihood of father being able even to travel to England as a visitor for example. And there were concerns that if this travel ban was them imposed, obviously provide that level of protection which was needed. But then as this chart to grow, they want to go overseas trips on school trips and so forth. They were just simply going to be prohibited from doing so. And therefore that actually long term can actually be disproportionate was this chance interests going forward and therefore that was why he was being questioned as to whether or not the absolute travel ban for a period of time without duration was actually necessary and appropriate in the circumstances. And the court did say that there was satisfied that there was incomes, there was insufficient consideration given in relation to the evidence of the likely the father gave to even traveled to England as a visitor for example, to visit the child. So the appeal was allowed. So the findings made by the judge couldn't support the making of the absolute travel ban for length under duration in the circumstances. That needs to be more analysis undertaken by the court unless and it wasn't remedied by simply making an order allowing the person to apply to vary the order because one has to be satisfied at the order was justified in being made in the first instance, you can't just simply say, well you can vary this. Why was it made? Why was it necessary to be made for that length of time in the first instance? Travel but it could not therefore stand. And therefore that's where the matter would then be referred to another judge for consideration. And then I'm going to be looking at that with you in the next session to see what happened thereafter when the matter then came bef or the court. Okay, so well done for coming to the end of these sessions, you can see I've looked, continue to add looking at so many elements surrounding forced marriage protection orders. And we've also spent some time going through some of the elements surrounding female genital mutilation protection orders and also The 2003 act. So when do we meet up on the next and final session? I'll be going through some more, the developing case law surrounding the FGM protection orders and also giving you some guidance about the factors which we need to take into account When one is looking at those applications that are being made. And you can see therefore, that both of these areas obviously very, very significant and therefore, once that family practitioners and Children or practitioners clearly need to be aware of when you're advising whether you're advising the applicant or somebody on their behalf or whether you're representing the respondents in these circumstances. So can I thank you very much indeed for listening. I hope that's been a useful session for you so far. And I speak to you next time. Thank you very much. Bye for now.
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