SK, Re

The inherent jurisdiction of the High Court is sufficiently flexible to protect an adult whose ability to make relevant decisions may be overborne by force, fear or coercion. It may be used where an adult is abroad but ordinarily resident in England, particularly to investigate the person’s true wishes and circumstances. Appropriate interim measures may include injunctions preventing a forced marriage, threats, harassment or violence, together with orders requiring information about the person’s whereabouts and arrangements for an independent consular interview. The court must respond proportionately to the urgency and seriousness of the risk. Forced marriage is distinct from an arranged marriage: coercion may deprive the individual of a genuine capacity to consent.

This was a without-notice application concerning a young adult British citizen ordinarily resident in England who was believed to be in Bangladesh. Information supplied to the applicant’s solicitor suggested that relatives might be detaining her, preventing her return, and attempting to arrange a marriage without her consent.

The proposed plaintiff did not know of the proceedings, and the proposed defendants had not been served. The central issue was whether the High Court could use its inherent jurisdiction to protect an adult abroad, ascertain her free wishes, and restrain conduct connected with a possible forced marriage.

The court granted protective and information-gathering relief. Following service of bench orders, the woman was interviewed alone by a British consular officer, returned to England, and asked that the proceedings not continue. They were then discontinued.

1. The court held that an adult cannot be made a ward of court, but the inherent jurisdiction of the High Court may nevertheless provide an effective and flexible remedy where the adult’s capacity to make relevant decisions is in issue, or where there is a serious question about the propriety of proposed conduct. Declaratory and protective relief may be granted in such circumstances.

2. The jurisdiction may be exercised notwithstanding that the adult is temporarily abroad, where the available information establishes a sufficiently cogent concern and the adult is ordinarily resident in England. The immediate purpose may be investigative: to establish the person’s whereabouts and to determine whether decisions concerning residence and marital status reflect free will.

3. The response must be proportionate to the urgency and seriousness of the risk. The court therefore authorised orders requiring disclosure of the woman’s whereabouts, attendance at the British High Commission for a private interview, and the issue of bench orders requiring relatives to provide information. It also granted injunctions restraining any marriage ceremony, threats, intimidation, harassment and violence. Powers of arrest could properly be attached to the injunctions on the evidence then available.

4. Forced marriage lies on a spectrum extending from physical force and threats of serious harm to undue emotional pressure. It must be distinguished from a genuinely arranged marriage. Where coercion overbears the individual’s ability to consent, a resulting marriage is voidable and the coercive acts may constitute a grave interference with human rights and potentially criminal conduct.

5. The judge further considered, by analogy with P v R [2003] 1 FLR 661, that public funding should be available in an appropriate case so that suspected forced-marriage situations can be investigated and, where necessary, nullity proceedings pursued. That observation was ancillary to the relief granted.

6. The proceedings were subsequently discontinued after the woman returned to England and expressed the wish that court intervention should end.