The High Court was faced with a case relating to the potential extension of forced marriage protection orders (FMPOs). The Court focused on the need to protect individuals against "the pernicious practice of forced marriage".
Background:
The parents were both born in Afghanistan and were married in 2003. They have six children, the two last of whom were born in the UK. The entire family are UK citizens with Afghan identity cards. They have lived in the UK since 2007. The oldest daughter, A, was married in Afghanistan in 2021, probably at the age of 17.
In February 2022, the third child, C, alleged to teachers at her school that she had self-harmed and had been subject to physical chastisement by her parents. She claimed that her parents had booked tickets to take her to Afghanistan to be married. On 10 June 2022, the Local Authority (LA) applied for an FMPO which was granted on 14 June 2022.
In October 2022, the parents agreed to work with the Halo Hope Charity (Halo), which works to prevent forced marriage. As a result of a positive report by Halo, the FMPO was discharged in March 2023. The family then travelled to Afghanistan in July 2023. There were recordings of C stating she was not allowed to return to the UK unless she agreed to marry. This marriage led to a miscarriage and a suicide attempt.
The Court found in May 2024 that the parents had consistently lied to the Court and that the younger children aged 15, 16, and 18 were placed under pressure from their parents. The Judge, therefore, made a Passport Order in respect of the young people until they reached 18 under Part 4A of the Family Law Act (FLA) 1996.
C and her younger brother, Y, returned to the UK in June 2023, while the mother, the fourth child, X, and the youngest child, Z, returned in July 2024.
The LA and children's guardian sought to extend the orders until the children turned 21 to protect them from the risk of forced marriage. The parents and the children opposed extending the orders beyond 18, arguing it would infringe on their autonomy and the cultural practices of arranged marriage.
Decision:
The High Court extended the FMPOs for the three children until their 21st birthdays and extended the passport orders for the parents until the other daughter turns 21, to ensure the highest level of protection against forced marriage. The Judge felt that 21 would allow the young persons to exercise their own free will and noted that "They may be at risk after that age, but if they get to 21 and manage to complete their education and perhaps get jobs, they will be in a stronger position to resist coercion from their parents and exercise their own free will."
To make such an order, the Court followed Re K test, namely establishing the facts, determining whether there is a need to protect from forced marriage, and finally, ascertaining the risks.
The Court found the parents' denial of intent to force marriage and their credibility questionable in light of C's traumatic experiences. The fact that none of the written evidence referred to C's experience also weighed on the Court's decision. Mrs. Justice Lieven DBE also described the father's oral evidence as shocking due to "his failure to take responsibility for his children's well-being and, in particular, his apparent lack of care, concern, empathy or love for C (...) He seemed utterly unconcerned about the level of C 's trauma and the fact that she had tried to kill herself."
Given the parents' failure to protect their daughter, the Court found a very high risk of forced marriage. Such risk and potential harm outweighed the interference with autonomy and family life rights caused by extending the orders.
The Judge concluded that "Although C (and many women in her situation) may come to accept their marriages, it is hard to contemplate the nature of the coercion, including cultural pressure, that is placed on women and girls to accept the marriage which has been forced upon them." The Judge also noted that the forced marriage of C was caused by her being "difficult and problematic". It is a sad feature of some families who have come to the UK to seek refuge that when their children, particularly their daughters, start asserting autonomy, the parents may force them into marriage as a form of coercive control.
Implications:
This decision underscores the power of the courts to interfere with individual autonomy and cultural norms when there is a real prospect of forced marriage. The courts can also extend a FMPO and Passport Order to safeguard a person, even if such orders are made against the express wishes of the parties who do not feel the orders are necessary.
The lack of honesty in written statements could result in the Court's placing less weight on them. This judgement highlights the commitments of courts to balance the rights of the parents and individuals under the European Convention on Human Rights (ECHR) with the safeguard against forced marriage. The Court will not only look at the facts but also the wider context, such as the parents' attitude towards C, and the potential for the children to be pressured or influenced by their family and culture. Lying to the Court will also result in the courts being more cautious.
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