The Metropolitan Police Service v Bile & Anor

Under Part 4A of the Family Law Act 1996, the court must distinguish between a threatened forced marriage and a marriage alleged already to have occurred. A threatened marriage involves an assessment of future risk. Where a marriage has already occurred, the issues are historical facts to be determined on the balance of probabilities. The court has power to make a forced marriage protection order, and to accept an undertaking instead of one, only where the statutory conditions for making such an order are satisfied. In proceedings initiated through the Forced Marriage Unit without direct contact between the alleged victim and the police, the police should carefully question whether they are the appropriate applicant and whether leave should be granted.

The Commissioner of Police of the Metropolis applied for leave to bring, and for, a forced marriage protection order concerning an adult British citizen living in Somalia. The application relied principally on information passed from the Forced Marriage Unit through a charity worker and contained several tiers of hearsay. Interim orders had been made without notice against the woman’s father.

By the final hearing, the evidence indicated that the woman had already married. Her reported accounts conflicted, and the father gave evidence that she had chosen her husband and had not been forced into marriage. The issues were whether a forced marriage had occurred, whether the court had power to make an order or accept undertakings, and whether the police were an appropriate applicant.

1. Substantive application dismissed. The evidence established on the balance of probabilities that M had already married a man in Somalia. The evidence did not establish that the marriage was forced. The reported information was double or triple hearsay, and M’s more recent account was that she was not in a forced marriage.
2. Section 63A(1) of the Family Law Act 1996 addresses two alternative situations: a threatened or attempted forced marriage, and a person who has already been forced into a marriage. In the first situation the court assesses future risk or likelihood. In the second, whether the marriage occurred and whether it was forced are questions of past fact determined on the balance of probabilities.
3. Section 63E permits an undertaking instead of an order only where the court has power to make a forced marriage protection order. Since the statutory conditions in section 63A were not met, the court had no power either to make an order or to accept the proposed undertakings.
4. All orders of continuing effect were discharged, including the order requiring the Tipstaff to hold the father’s passport, which was to be returned. The application was dismissed.
5. The court expressed serious procedural concerns about the police having acted on information supplied by the Forced Marriage Unit, without direct contact with M or independent knowledge of her circumstances. In such cases the police should carefully consider whether they are the appropriate applicants, and the court should scrutinise an application for leave under section 63C. The Foreign and Commonwealth Office or its Forced Marriage Unit could itself apply for leave where it remained concerned about a British citizen abroad.
6. The police were ordered to pay the father’s costs, summarily assessed at £9,940 inclusive of VAT.