K (Forced Marriage: Passport Order) (Rev 2)

A forced marriage protection order may protect a capacitous adult despite that adult’s contrary wishes. Those wishes remain relevant to wellbeing, but they do not determine the application.

Where forced marriage presents a real and immediate risk of treatment contrary to article 3, the court must impose the minimum protection necessary while respecting article 8 autonomy. Every restriction must be separately justified and proportionate.

The wide powers under the Family Law Act 1996 permit passport surrender and travel restrictions. An indefinite restriction is justified only in the most exceptional case, where its continuing necessity can be foreseen with sufficient clarity. Ordinarily, the restriction should be time-limited and reviewed before expiry.

K was a capacitous adult who had alleged that her family threatened to kill her unless she entered a marriage. A forced marriage protection order made in 2015 was continued after a contested hearing in 2016. It required the police to retain her passport until further order. K later withdrew her allegations, lived independently from her family and sought discharge of the order.

In 2018 HHJ Tucker found a real risk of honour-based violence and refused to discharge the passport provision. Permission to appeal was granted and the appeal transferred to the Court of Appeal.

The issues were whether a forced marriage protection order could protect a capacitous adult against her wishes; whether it could include an indefinite passport order; and how article 3 protection should be accommodated with article 8 autonomy and freedom to travel.

1. Appeal allowed to a limited extent. The passport order remained necessary, but its indefinite duration was disproportionate. A review hearing was to take place in December 2022, preceded by a directions hearing in September 2022.

2. The Family Law Act 1996 confers jurisdiction to protect a capacitous adult. Section 63A applies to a “person” without limitation by age or mental capacity. A protected person’s wishes and feelings form part of wellbeing under section 63A(3), but they are neither an automatic trump card nor determinative. Where the facts and article 3 risk justify intervention, the court may protect an adult from a course she wishes to pursue. It must state clearly that it is doing so and give adequate reasons.

3. Potential conflict between articles 3 and 8 requires reasonable accommodation, rather than an unrestricted balancing exercise. Once a real and immediate risk of article 3 treatment is established, the court must provide the minimum protection necessary. Interference with article 8 rights must go no further. The proportionality approach in Re X (A Child: FGMPO) (Rev 2) [2018] EWCA Civ 1825, including the four-part Bank Mellat analysis, applies to forced marriage protection orders. Each term of an order requires separate justification.

4. The court identified a four-stage route: establish the facts on admissible evidence to the civil standard; determine whether the statutory protective purpose exists; assess the risks and protective factors and decide whether there is a real and immediate article 3 risk; and devise bespoke minimum measures which accommodate article 3 protection with article 8 rights. A contested continuation application ordinarily requires proper fact-finding, although an initial without-notice order may be made protectively without detailed investigation.

5. Section 63B permits passport confiscation, a travel ban and, where justified, an injunction restraining the protected person from leaving the jurisdiction. An injunction directed at that person carries potential enforcement consequences and therefore requires especially careful analysis.

6. An open-ended passport or travel order is permissible only in the most exceptional case, where the court can foresee that the restriction will be required indefinitely. Ordinarily, the court should look no further into the future than the evidence permits, prefer a finite restriction, and arrange review before expiry.

7. The judge’s findings established the statutory purpose and an undiluted article 3 risk. Continued passport retention was therefore justified. The facts did not, however, justify an indefinite travel restriction. Courts dealing with similarly difficult cases should provide a written judgment recording the findings and route to decision.

• Court of Appeal (Civil Division): In [2020] EWCA Civ 190, unanimously allowed the appeal to the limited extent of requiring review of the passport order in December 2022.
• High Court: Williams J granted permission to appeal on 24 May 2019 and transferred the appeal to the Court of Appeal under rule 30.13 of the Family Procedure Rules 2010.
• Family Court: HHJ Tucker continued the forced marriage protection order in January 2016. In August and December 2018 she refused K’s application to vary or discharge it, including its indefinite passport-retention provision.