Forced Marriage Protection Orders Law and Procedure David Kent Legal Services Operational Team

FMPO Background Legislation Procedure Forms Practical processes to obtain an order

Forced marriage: Background “Forced Marriage” is marriage that takes place without the full and free consent of both parties. The offence of FM was created by the Anti-Social Behaviour Crime and Policing Act 2014. Been in force since 16 June 2014 Maximum penalty 7 years imprisonment.

FMPO’s: Background Forced Marriage (Civil Protection) Act 2007 in force 25 November 2008 Amended Family Law Act 1996 Anti-social Behaviour Crime and Policing Act 2014 created a criminal offence of breach of an FMPO: Max sentence 5years imprisonment.

Who can apply for an order? The person who is to be protected by the order (the protected party “PP”. A relevant third party (Local Authority) Any other person with the leave of the court (Police will come within this category)

Leave to apply Police must seek leave to apply under FLA 1996 s63C. Procedure is governed by FPR r.11.3. The court must have regard to the circumstances including: the applicant’s connection with the person to be protected; the applicant’s knowledge of the circumstances of the person to be protected; and the wishes and feelings of the person to be protected so far as they are reasonably ascertainable and so far as the court considers it appropriate, in light of the person’s age and understanding, to have regard to them.

“without free and full consent” (s63A(4)) The Test Forced marriage: “without free and full consent” (s63A(4)) An FMPO may be made to protect a person: At risk of forced marriage OR Who has been forced into a marriage (s63A(1))

Factors the court will consider FM or risk of FM? Would an order protect PP? All circumstances including PP’s: “health, safety and well-being” Having regard to PP’s “wishes and feelings” as appropriate to PP’s “age and understanding” (s63A(2))

May be made without PP’s consent A v SM (Forced Marriage Protection Orders) [2012] EWHC 435 (Fam): The PP contested an FMPO and contested police evidence, but it later transpired it was under duress. Bedfordshire Police Constabulary v RU & Anor [2013] EWHC 2350 (Fam): Earlier in proceedings, the court was unsatisfied that an application to discharge an FMPO had been made of the PP’s own free will, and refused it.

Expert evidence: In re A In re A (Forced marriage: Special Advocates) [2010] EWHC 3282 (Fam) Sir Nicholas Wall, President of the Family Division suggested within guidance that appointment of an expert to assist the court would be of benefit. Expert witness from FM or HBV background/organisation Provided with all papers and meets PP to discuss wishes and feelings. Opinion as to whether PP can provide genuine wishes and feelings. Best Practice but not always possible.

Evidence and Disclosure In re A Chief Constable v A and others [2010] EWHC (Fam) 2438 Regarding the use of special advocates May be cases on limited occasions Disclosure of evidence can be limited to the respondent in some cases to protect the protected person and others.

Evidence and Disclosure Relevant evidence to consider: FWIN’s from the PP or others with information, relatives, friends Statements from individuals or the PP Disclosures received from schools, GP or other organisations Re A: Guidance on restricting disclosure “the right to a fair trial does not entitle a party either to see all the documents in the case or to have all the information in the possession of the court”

Ex parte/without notice order Test: “Just and convenient” Court must consider all circumstances including: risk of significant harm whether it is likely that an applicant will be deterred or prevented from pursuing an application whether there is reason to believe that- the respondent is deliberately evading service; and the delay will cause serious prejudice to PP or another Subsequent right to make representations

The Hearing Arrangements to consider in advance? Interpreter Legal Aid Separate waiting area, different entrance, attendance with PP Interpreter Gender, dialect, different communities Legal Aid A number of individuals may be entitled to legal aid, savings for the police, local authority. Local solicitor with expertise?

Outcomes following Hearing Order More enforcement options available? Undertaking Court may accept an undertaking where the court has power to make a FMPO. Cannot agree undertaking if violence has been threatened against the person to be protected and it is necessary to make an FMPO so that breach of it by R may be punishable under s63CA as an offence Contempt

Terms of Order/Undertaking s63B: wide discretion any terms appropriate, including prohibitions, restrictions or specific requirements conduct outside of England & Wales Respondents involved directly or indirectly S63F provides that an FMPO may be for a specified period or until varied or discharged

Typical Terms for Order Surrender of passport documentation (maybe dual citizenship) Not to be allowed to leave the country without permission of the court Need to send the order to UKBA/Passport Office. Require the court's permission in order

Vary, Extend or Discharge An application can be made by: The Protected Person (PP) Any Party to the proceedings Any person affected by the order Or on the court’s own initiative

Enforcement of the order Criminal offence s63CA Monitor the order – How? Remain in contact with victim Local authority/educational establishments? Local support groups? s63CA punishable by up to 5 years imprisonment

Enforcement – Contempt of Court Committal application can be made following breach of the positive or negative terms of FMPO (max imprisonment 2 years). Cannot enforce the same breach both as a criminal offence and through committal application: S63CA No police power to apply for committal for contempt unless police were the applicant who obtained the order: Bedfordshire Police Constabulary v RU and another [2013] EWHC 2350 (Fam)

Enforcement of Undertaking s63E(4) “Enforceable as if the court had made the order in terms corresponding to those of the undertaking” Contempt of court – custody up to 2 years

Further Information/assistance The right to choose: multi-agency statutory guidance for dealing with forced marriage Statutory guidance, June 2014 s63Q(1) Police forces must have regard to this in the exercise of functions Multi-agency practice guidelines: Handling cases of forced marriage Non statutory guidance, June 2014 Intended for use by frontline professionals P43 lists relevant ACPO guidance documents P53 lists relevant further guidance and legislation for local authorities.

Further information/assistance The Forced Marriage Unit (FMU) Joint Foreign and Commonwealth Office and Home Office Unit Assists with developing policy to tackle FM and can assist and advise for cases in the UK Assists with oversea cases providing assistance, support and places of safety. Contact details Pg 17 guidance