Chief Constable & Anor v YK & Ors

The forced marriage protection jurisdiction is protective and quasi-injunctive. The court may make an order ex parte and may rely on hearsay or undisclosed police information where necessary to protect the person concerned. Special advocates remain exceptional and are a matter of last resort. Usually the judge can determine disclosure or public interest immunity issues directly. A fair hearing does not invariably require disclosure of every document or piece of information, particularly where disclosure would create a serious risk to the protected person or an informant. On an application to discharge an order, the court’s central concern remains the protected person’s health, safety and well-being.

Consolidated proceedings concerned applications for forced marriage protection orders under the Forced Marriage (Civil Protection) Act 2007. A police force had obtained ex parte orders protecting A, a 19-year-old woman, from an alleged forced marriage. A purported marriage ceremony subsequently took place, but the marriage was not registered. The orders remained in force and an application by A to discharge them was outstanding.

The police relied on sensitive information which they contended could not safely be disclosed because disclosure might identify an informant and expose that person to serious harm. Black J had requested the appointment of special advocates for A’s parents, but the Attorney-General declined. The central issue was whether special advocates were appropriate to assist with disclosure, public interest immunity, or any later factual application to discharge the orders.

1. Disposition. The request for special advocates was refused. Their use in forced marriage proceedings would be rare in the extreme and they were not required in this case.
2. The jurisdiction created by Part 4A of the Family Law Act 1996, as inserted by the Forced Marriage (Civil Protection) Act 2007, is protective and quasi-injunctive. The court must have regard to all the circumstances, including the protected person’s health, safety and well-being and, so far as reasonably ascertainable, that person’s wishes and feelings. The statutory jurisdiction permits an order to be made ex parte: section 63D.
3. There is no general requirement for a conventional inter partes hearing before a protection order is made. Where a responsible body provides credible information sufficient to invoke the jurisdiction, the court may make a protective order notwithstanding that the truth of the underlying information has not been finally determined.
4. Disclosure may properly be withheld where disclosure would create a serious risk of harm. The issue may be characterised as public interest immunity or as a balance between Convention rights. The judge can ordinarily determine the disclosure issue without a special advocate. Special advocates are a last resort, and the court must identify something which they could do that the judge could not properly do.
5. Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam) was properly decided, but was distinguishable. In that case the court had to investigate a factual issue concerning an alleged contract killing and special advocates were necessary to test the evidence. Here the orders were protective, and the decisive issue on A’s application was her health, safety and well-being, including her genuine wishes and feelings.
6. Article 6 might not be engaged in the making of a forced marriage protection order, since forced marriage is not a civil right or obligation. If Article 6 is engaged on an application to discharge, it does not give an affected party an absolute right to inspect every document or obtain every item of information. Anonymous or hearsay material may be admitted in family proceedings; its significance is a matter of weight rather than admissibility, subject to proper judicial scrutiny.
7. The court’s July 2010 direction that relevant papers be disclosed to an expert from a specialist forced marriage or honour-violence organisation, for the purpose of assessing A’s wishes and feelings, was the appropriate course. The judgment also recognised, obiter, that special advocates or publicly funded representation may be appropriate in other family proceedings involving exceptional risks to witnesses or parties.