Forcing the issue

Local authorities are now able to apply for a forced marriage protection order without first requiring leave of the court, writes Louise McCallum.

The Forced Marriage (Civil Protection) Act 2007 came into force on 25 November 2008. The legislation inserts a new Part 4A into the Family Law Act 1996, adding new sections 63A to 63S.

On 1 November 2009, local authorities were designated a “Relevant Third Party”: they may now apply for a Forced Marriage Protection Order (FMPO) on behalf of a victim without first requiring leave of the court. Alongside this change, new guidance has recently been issued to local authorities by the Ministry of Justice.  

What is a forced marriage?

The term “marriage” includes religious and civil ceremonies, whether or not legally binding: s63S. The marriage concerned may be outside England and Wales.

A person (‘A’) is forced into marriage if another person (‘B’) forces A to enter into a marriage (whether with B or another person) without A’s free and full consent: s63A(4). The force therefore need not come from the intended spouse. Force can include coerce by threats or other psychological means: s63A(6). Victims of forced marriage often experience forms of emotional blackmail.  

The conduct of the person ‘B’ which forces the person to be protected (PTBP), ‘A’, to marry, could be directed against A, B or another person entirely: s63A(5).  This definition reflects common scenarios in cases of forced marriage: a family member may threaten to harm themselves if the intended union does not take place or threats might be made to harm a loved one of the PTBP.  

What is a FMPO?

A court may make a Forced Marriage Protection Order (“FMPO”) for the purposes of protecting:
a)a person from being forced into a marriage or from any attempt to be so forced; or
b)a person who has been forced into a marriage (Section 63A).

The court may therefore make a FMPO to prevent an apprehended forced marriage, or to initiate practical assistance to a victim where the marriage which has taken place.

In deciding whether to make a FMPO, and the nature of the order, the court will have regard to all the circumstances, including the need to secure the health, safety and well being of the PTBP: s63A(2).  The court must in particular have regard to the wishes and feelings of the PTBP, so far as they are reasonably ascertainable and in light of their age and understanding: s63A(3).

What may be the terms of a FMPO?

A FMPO may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate for the purposes of the order: s63B(1).  The terms of the order may seek to control conduct within and outside England and Wales: s63B(2).

Common prohibitive orders would include forbidding the respondent/s from removing the PTBP from the jurisdiction, applying for a passport/travel document for the PTBP or entering into any arrangements in relation to the engagement/marriage of the PTBP.  It is also common for FMPOs to include standard non-molestation clauses (which may also seek to control behaviour outside the jurisdiction).  

Orders requiring action on the part of the Respondent/s may include surrendering the passport of the PTBP, returning them to the jurisdiction of England and Wales and/or allowing the PTBP to be interviewed by a member of the British High Commission.

These are only examples, however. The legislation intends that the FMPO be flexible so as to accommodate the circumstances of each case. The court may include such other terms as are considered appropriate. Provision will often be made for disclosure of the FMPO to the Foreign and Commonwealth Office/Forced Marriage Unit.

Against whom may a FMPO be made?

The legislation is drafted so as to reflect the fact that there are often multiple perpetrators in forced marriage cases. FMPOs can be made against named respondents directly concerned in the force/attempts to force.  

Further, orders can be made against named respondents who may become involved in ‘other respects’: s62B(2)(b).  Involvement in ‘other respects’ includes aiding, abetting counselling, procuring, encouraging or assisting another person to force/attempt to force a person into marriage, or conspiring to do so: s63B(3).

Orders may also be made against ‘other persons who are, or may become, involved in other respects as well as respondents’: s63B(2)(c). Thus, unusually FMPOs can be directed against unnamed persons. A blanket order could, for example, be made prohibiting any person from facilitating arrangements for the marriage of the PTBP.  

Ex parte orders and powers of arrest

Orders can be made ex parte where the court considers it just and convenient to do so: s 63D(1).  Section 63D outlines the circumstances which the court will consider in determining whether to make a FMPO without notice. Data collated as of the end of October 2009 indicates that half of all FMPOs made thus far have been made firstly without notice being given to the respondent/s.

A power of arrest may be attached to the FMPO. In determining whether a power of arrest should apply, the court will distinguish between orders made inter partes and ex parte: see s63H for details. For any power of arrest to be attached, the court must consider that the respondent has used or threatened violence against the PTBP or otherwise in connection with the matters being dealt with by the order: s63H(1)(b) and (3)(b).  

Who may apply?

The PTBP may of course apply as may any other person with leave of the court: s63(2)(a) and s63C(3). In addition, the legislation creates a new category of applicant who may apply on behalf of the victim without leave of the court: the 'Relevant Third Party' (s63C(2)(b)). A Relevant Third Party is a person specified, or falling within a description of persons specified by the order of the Lord Chancellor.  

Relevant Third Party: Local Authorities

On 1 November 2009, local authority applicants were granted the status of Relevant Third Party ('RTP') through the Family Law Act 1996 (Forced Marriage)(Relevant Third Party) Order 2009 SI 2009/2023).  Local authorities are the first to be granted this status.  

An application could be made by a local authority on behalf of the PTBP without their knowledge or consent (for example if they had been taken out of the jurisdiction for the purposes of a forced marriage).  

The application form FL401A has however been amended such that a local authority applicant must still state within the form what they know of the circumstances of the PTBP and their wishes and feelings. Whilst local authorities no longer need leave, the court will remain anxious to ensure that the application is in the best interests of the PTBP and would not be contrary to their own wishes.

Considerations for local authority applicants

There are a number of key documents to which local authority legal practitioners should have regard as soon as they are alerted to a potential case of forced marriage:

a) The Right to Choose: Multi-Agency Statutory Guidance for Dealing with Forced Marriage (http://www.fco.gov.uk/resources/en/pdf/3849543/forced-marriage-right-to-choose);

b) Multi-Agency Practice Guidelines: Handling Cases of Forced Marriage (June 2009) (http://www.fco.gov.uk/resources/en/pdf/3849543/forced-marriage-guidelines09.pdf);

c) Ministry of Justice guidance to local authority applicants published in October 2009: Forced Marriage (Civil Protection) Act 2007, Guidance for local authorities as relevant third party and information relevant to multi-agency partnership working (http://www.justice.gov.uk/guidance/docs/forced-marriage.pdf);

d) For procedure, see Rules 3.25 to 3.36 of the Family Proceedings Rules 1991.

The recent guidance to local authority applicants ('RTP Guidance') is intended to provide additional advice and support to frontline local authority employees when they are considering making an application as a RTP. It should be used by all caseworkers and legal advisers within local authorities who work to safeguard children and young people, and protect vulnerable adults from abuse. As well as children and adults social care teams, those working in education and housing should be made aware of the guidance.

The RTP Guidance provides crucial advice, including the need to be ever mindful of the PTBP's safety.  Emphasis is given to the 'one chance rule': a practitioner may have only one chance to speak to a potential victim of forced marriage.   

The RTP Guidance emphasises that applications for a FMPO by a local authority should be made via its legal department, in close consultation with the relevant frontline practitioner. These are not applications to be pursued by caseworkers and social workers themselves.  

Local authority frontline practitioners will take advice from their legal department as to whether a FMPO offers the best remedy. In cases concerning children consideration will be given to the issuing of applications for public law orders.   

Local authority applicants will also wish to discuss a case with the Forced Marriage Unit (0207 008 0151).

A spike in cases?

Up to the end of September 2009, 72 orders had been made under the new legislation, in excess of Ministry of Justice expectations. It is likely, however, that this represents but a fraction of the true scale of victims. It will be interesting to consider at the time of the Act's second anniversary what impact the role of local authorities as a RTP has on the level of applications.

Louise McCallum is a family law barrister practising at Zenith Chambers in Leeds. She is co-author of “Forced Marriage: A Special Bulletin”, which was published in September 2009 by Jordans Publishing