Re K (Forced Marriage: Passport Order)  EWCA Civ 190
The WLR Daily case summaries
 WLR (D) 107
Court of Appeal
In re K (Forced Marriage: Passport Order) (Secretary of State for Justice and another intervening)
2019 Nov 27; 2020 Feb 21
Sir Andrew McFarlane P, Peter Jackson, Haddon-Cave LJJ
Marriage— Forced marriage— Protection order— Forced marriage protection order (“FMPO”) and indefinite passport order made to protect capacitous adult— Capacitous adult appealing against refusal to discharge or vary orders— Whether jurisdiction to make FMPO where protected person with capacity opposing order— Whether jurisdiction to make indefinite passport order— Approach to be taken in assessing protected person’s competing Convention rights— Guidance on staged approach to be followed when court considering whether to make FMPO— Family Law Act 1996 (c 27) (as amended by Forced Marriage (Civil Protection) Act 2007 (c 20), s 1), Pt 4A, ss 63A, 63B — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 3, 8, 12
The applicant, an adult with capacity to make decisions with respect to marriage, contacted the police in 2015 alleging that her family were seeking to force her to marry against her will and, at a without notice hearing, she was made the subject of a forced marriage protection order (“FMPO”) under section 63A in Part 4A of the Family Law Act 1996, as inserted. At the contested inter partes hearing, although the applicant had withdrawn the allegations and sought the discharge of the FMPO, the judge concluded that she continued to require the protection of the court and that the FMPO should remain in force together with an order that her passport and other travel documentation should be held by the police until further order. On her subsequent application for the discharge of the FMPO, and in particular the passport order, in order to travel abroad for a funeral in 2017, the applicant indicated that she did not intend to take any steps to ameliorate the risk of travel whereupon the judge refused to vary or discharge the orders. On her appeal challenging, inter alia, the lawfulness of making such orders against the wishes and feelings of capacitous adults, the following issues arose: (1) whether the court had jurisdiction and, if so, whether that jurisdiction should be exercised where the individual said to be requiring protection was a capacitous adult who opposed the making of the FMPO; (2) whether the Family Court had 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 extended to making an open-ended or indefinite passport order; and (3) what approach the court should take when determining issues where there was apparent conflict between a person’s right to be protected by the state from inhuman or degrading treatment sufficient to engage article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms and that person’s autonomy and right to respect for private and family life, including the right to travel, under article 8 of the Convention.
On the appeal—
Held, appeal allowed to the limited extent of providing for a review hearing in December 2022. (1) Section 63A of the Family Law Act 1996 gave the court jurisdiction to make an order for the purposes of protecting a person from being forced into a marriage and, by section 63A(2)(3), the court had to have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected. Parliament had neither imposed a threshold criteria nor a checklist of factors which the court was required to consider; the word “person” was not further defined, it was not limited by any reference to age and, importantly, there was no reference to the person’s capacity to make decisions. It was therefore clear that the court had jurisdiction to make a FMPO to protect a capacitous adult. Further, the express positioning within section 63A(3) of “wishes and feelings” as an aspect of “well-being” indicated that the wishes and feelings of an adult with full capacity who was the subject of an FMPO application fell to be taken into account but were not in any manner an automatic trump card or determining factor (paras 30–35, 80, 81, 82).
(2) The wording of section 63B(1) of the 1996 Act, which permitted the court to make an order containing such prohibitions, restrictions or other terms as the court considered appropriate for the purpose of protecting a person from forced marriage, plainly could include the imposition of a travel ban and/or the confiscation of a passport. It followed that the court had jurisdiction, where the facts were found and the assessment of the risk of a breach of article 3 of the Convention so justified, to make orders protecting persons from themselves. However, the authorities established that an open-ended passport order or travel ban should only be imposed in the most exceptional of cases and where the court could be satisfied that highly restrictive orders of that nature would be required indefinitely. In all other cases, the court should impose a time limit when making such orders imposing a restriction only in so far as that was justified on the facts as found. Unless the court could see that there would be no need for any continuing order after a particular date the appropriate course would be for the matter to be listed for further review a short time before the passport and/or travel ban would otherwise expire (paras 58, 62–67, 81, 82).
Dicta of Sir James Munby P in In re M (Children) (Care Proceedings: Passport Order)B, para 14, CA considered.
(3) In some cases the state’s duty to protect an individual would override that individual’s stated wishes and feelings. Where there was potential conflict between a person’s article 3 and article 8 rights under the Convention the court had to strive for an outcome which took account of, and achieved, a reasonable accommodation between the competing rights. The required judicial analysis was not a true balancing exercise due to the imperative duty that arose from the absolute nature of article 3 rights. Where the evidence established a reasonable possibility that conduct sufficient to breach article 3 might occur, the court had at least to do what was necessary to protect any potential victim from that risk. The need to do so could not be reduced below that necessary minimum even where the factors relating to the qualified rights protected by article 8 were particularly weighty. An assessment of proportionality was required, the test being comprised of four parts: (i) whether the objective of the measure pursued was sufficiently important to justify the limitation of a fundamental right; (ii) whether it was rationally connected to the objective; (iii) whether a less intrusive measure could have been used without unacceptably compromising the objective; and (iv) whether, having regard to those matters and to the severity of the consequences, a fair balance had been struck between the rights of the individual and the interests of the community (paras 36, 37, 39, 44, 81, 82).
Dicta of Lord Reed JSC in Bank Mellat v HM Treasury (No 2)B, para 74, SC(E) and dicta of Moylan LJ in In re X (A Child) (FGMPO) B, paras 31–33, CA applied.
Dicta of Hayden J in A Local Authority v MB, para 41 approved.
(4) On the basis of the factual findings the judge had concluded there was a real risk of honour based violence towards the applicant and that it was not appropriate to discharge the passport order. It was clear that those findings were more than sufficient to establish that the case justified consideration within Part 4A of the 1996 Act and that the level of risk was sufficient to engage article 3;further, since the applicant had taken no steps to improve her capacity to protect herself, the article 3 risk remained as it had been. On that basis, the judge had been fully justified in holding that it was necessary for the passport order to remain in force, save that the facts were not so extreme as to justify an indefinite prohibition on travel out of the jurisdiction. The appropriate course was, therefore, to fix a future date for review which, given the lack of change in circumstances during the nearly three-year period between the two court hearings, might reasonably have been pitched at four years (paras 73–77, 81, 82).
Per curiam. (i) In addition to removing the means to travel by making a passport order, the jurisdiction under Part 4A of the 1996 Act is sufficiently wide to make an express injunction against the person to be protected preventing them from leaving the jurisdiction. However, that is a step which a court should only take after a very careful analysis of the risks and the degree to which protection was necessary (paras 66, 81, 82).
(ii) When considering making an FMPO the court should proceed in the following stages: (1) It is for the court to establish the facts, based upon admissible evidence and by applying the civil standard of proof, to justify the making of a FMPO. (2) Based on the facts, the court should establish whether there is a need to protect a person from being forced into a marriage. (3) The court must then assess both the risks and the protective factors that relate to the particular circumstances of the subject and must explicitly consider whether or not the facts are sufficient to establish a real and immediate risk of the subject suffering inhuman or degrading treatment sufficient to cross the article 3 threshold; the court may be assisted by drawing up a balance sheet of the positives and negatives within the circumstances of the particular family. (4) If the facts establish a risk that the subject will experience conduct sufficient to satisfy article 3, the court must then undertake the exercise of achieving an accommodation between the necessity of protecting the subject from the risk of harm under article 3 and the need to respect their family and private life under article 8 and, within that, respect for their autonomy. This is not a strict “balancing” exercise since it is necessary for the court to establish the minimum measures necessary to meet the article 3 risk that has been established under stage (3) bearing in mind the high degree of flexibility afforded by the wording of Part 4A of the 1996 Act. It is unlikely in all but the most serious and clear cases that the court will be able to see far enough into the future to make an open-ended order which will remain in force unless and until it is varied or terminated by a subsequent application; in other cases, the court should look as far as it can in assessing risk but no further, and having considered whether a finite order adequately meets the risk, a date should be fixed on which the order, or a specific provision within it, is reviewed by the court (paras 45, 46, 50–55, 81, 82).
Deirdre Fottrell QC, Seema Kansal and Marlene Cayoun (instructed by National Legal Service Solicitors) for the applicant.
Jason Beer QC and Alice Meredith (instructed by Police Legal Department) for the police.
Sarah Hannett (instructed by Treasury Solicitor) for the Secretary of State for Justice, as first intervener.
Henry Setright QC and Jacqueline Renton (instructed by Dawson Cornwell) for Southall Black Sisters, as second intervener.
Jeanette Burn, Barrister