Court of Appeal backs declaration that travel to Afghanistan not in best interests of young man with learning difficulties

The Court of Appeal has dismissed an appeal against an interim order under the Mental Capacity Act 2005 declaring that it was not in the best interests of a young man to travel to Afghanistan with his family for a holiday.

In J v Luton Borough Council & Ors [2024] EWCA, Lord Justice Peter Jackson noted the feared risk was mainly of detention and non-return of a young man who receives “essential levels of support” in the UK.

The Appellant, (J), has severe learning difficulties and was represented by the Official Solicitor as his litigation friend.

His appeal was supported by his parents and his adult sister but opposed by the local authority in whose area the family lives and which had sought the orders.

Lord Justice Peter Jackson noted that some years ago, J and his family moved to the UK from Afghanistan as refugees. He and his adult sister are now British citizens.

In 2022, the family planned to travel to Afghanistan so that J and his sister could visit family members living there and enter into arranged marriages. On 2 August 2022, after the family had said that they planned to travel imminently, a mental capacity assessment was carried out. J was assessed as lacking capacity to marry and to engage in sexual relations.

In August 2022, the local authority applied under Part 4A of the Family Law Act 1996 for a Forced Marriage Protection Order ('FMPO') in respect of J. This was granted as an interim order. A port alert was put in place, preventing the family from travelling.

On 17 March 2023, the court discharged the FMPO in relation to J's younger sister and the port alert in respect of the parents and sister, but the FMPO remained in place in relation to J.

At a further hearing on 14 July 2023, the family made an oral application for an order that J should be allowed to travel with the family to Afghanistan for approximately five weeks.

The judge considered the Foreign, Commonwealth & Development Office publication 'Travel Advice to Afghanistan' updated 22 June 2023 ('the FCDO Advice').

Refusing the family’s application, Mrs Justice Roberts said: “There is no doubt in my mind that, but for the concerns reflected in the Foreign and Commonwealth Office guidance, this would be a positive and beneficial trip for him to make. However, those benefits and the risk of any psychological effects of separation from his family for just over a month have to be seen in the context of the potential harm he might suffer if things do not go according to the family's plan.”

She added: “Even if the risk of travel for J is not as substantial as suggested by the Foreign and Commonwealth Office guidance, the harm which is likely to be caused in the event of a risk materialising could be very grave indeed. Were he to become stranded in Afghanistan or worse, detained there, there would be very little prospect of any help or support becoming available to meet his particular needs.

“There is no access to any consular support, far less access to the kind of care and support he has been receiving in this jurisdiction. It is a risk I am not prepared to take on his behalf, given the very significant progress he has been making.”

The Official Solicitor sought permission to appeal on two grounds:

1. The court failed to properly conduct a best interests analysis as required by s.4 of the Mental Capacity Act 2005. Specifically:

(a) The court placed undue weight on the Foreign, Commonwealth and Development Office ("FCDO") guidance that British citizens should not travel to Afghanistan to the exclusion of other factors in s.4 of the Mental Capacity Act (MCA).

(b) The court failed to give any weight to J's wishes and feelings, as they were not mentioned at all during judgment;

(c) The judge failed to give any or any sufficient weight to the specific mitigation that the family described in order to protect J;

(d) The court failed to give sufficient weight to J's values and beliefs, and the views of his family;

(e) The court failed to give sufficient weight to the risk of harm to J in not travelling with his family.

(f) A proper assessment of the above factors would have resulted in the granting of the application that it was in J's best interests to travel to Afghanistan as planned.

2. The decision amounts to a breach of J's Article 14 rights against discrimination in securing his Convention rights, namely Art 8, on the basis of 'other status', namely his disabilities.

On 12 October 2022, Lord Justice Peter Jackson granted permission to appeal under Ground 1 on the basis that it was arguable that the judge, in giving predominant weight to the general risks identified in the FCDO guidance, took “insufficient account” of factors specific to J and his family.

He said: “I also granted permission under Ground 2, while saying that I was not convinced that it added anything to Ground 1 as a sound best interests decision should contain justification for any difference in treatment.”

On behalf of the Official Solicitor, counsel (Andrew Bagchi KC and Kyle Squire) submitted that the judge “failed to properly conduct the evaluative exercise required by section 4 MCA 2005”.

Particularly, she effectively treated the FCDO advice as decisive, without considering the other matters she was required to consider.

“Mr Bagchi accepted that non-statutory advice may be influential but argued that it should not be regarded as decisive”, said the judge.

He noted that Mr Bagchi accepted that Ground 2 ultimately raised no separate issue and that the appeal depended on Ground 1.

Outlining the position of the local authority, Lord Justice Peter Jackson said: “[Conrad] Hallin reminded us of the stringent test that an appellant must meet when challenging a multi-factorial evaluative judgment and argued that no error of approach had been shown.

“The transcript of the hearing and the judgment demonstrate that the judge was alive to all the relevant factors. On balance, she concluded that the disadvantages of refusal were outweighed by the risks to J if he travelled to Afghanistan. It is difficult to see how she could reasonably have reached another conclusion.”

Discussing the case, Lord Justice Peter Jackson noted that when assessing risk in cases of this kind, it is important that the “fullest consideration” is given to the importance of a person's heritage and family relationships, “with an awareness that an unduly risk-averse approach can itself cause harm or welfare disadvantage”.

He said: “I have reached the very clear conclusion that the judge took account of everything that she was obliged to consider and reached a decision that was comfortably open to her on the evidence that was available at the time.”

He found that despite the short notice, the court looked into the matter “very fully”.

Turning to the issue of the FCDO advice, Lord Justice Peter Jacksoin concluded that the judge did not treat it as decisive “in any doctrinaire way”.

He added: “Since it was the only counter-indicator to the trip, it naturally received close attention, but it was not treated as doing any more than bringing into the court's consideration a series of facts that were not in reality in dispute. The judge's assessment that those facts gave rise to risks that tipped the best interests balance was no more than a conventional judicial exercise, taking account of the nature, likelihood and consequences of the feared harm.”

Dismissing the appeal, the Court of Appeal judge noted that the proceedings were continuing, and that the issue of travel to Afghanistan would most likely remain important for J and his family.

He said: “It may be that J's capacity to make a decision for himself can be maximised with further education. However, if a future best interests decision has to be taken about travel, it is to be hoped that it can be done in a pre-planned way.”

Lord Justice Dingemans and Lord Justice Lewis agreed.

Lottie Winson