Sheffield City Council v M & Ors.

In a contested application for a Forced Marriage Protection Order, the court must establish the underlying facts, determine whether protection is needed, assess the particular risks and protective factors, and accommodate the need for protection with the relevant Convention rights. The assessment is fact-sensitive and includes the protected person’s wishes and feelings so far as reasonably ascertainable.

Where evidence essential to the application cannot safely be disclosed, the court must address the resulting fair-hearing difficulty. A Special Advocate may be appointed, but only exceptionally and after considering disclosure, the protection of sources, and the respondent’s Articles 6 and 8 rights. Protective orders and passport-retention arrangements must be effective and proportionate to the identified risk.

Sheffield City Council applied for Forced Marriage Protection Orders and passport-retention orders concerning A and B, aged 17 and 15. Their mother had not engaged in the proceedings and her whereabouts were unknown. Their father participated, accepted FMPOs in principle without admissions, but opposed the proposed duration and passport-retention orders.

The court had previously directed that important evidence be withheld from the father and appointed a Special Advocate. Following closed and open hearings, the central issues were whether A and B remained at real and immediate risk of forced marriage if taken to Bangladesh, whether continued protection was necessary, and whether retaining their passports until age 21 was a proportionate accommodation of the competing rights.

1. Orders continued. The court continued the FMPOs and passport-retention orders until A and B respectively reached 21. Passport release was to remain subject to the agreed risk-assessment arrangements.
2. Statutory framework. Under Part 4A and section 63A of the Family Law Act 1996, the court considered all the circumstances, including the protected person’s health, safety and well-being and, where reasonably ascertainable, wishes and feelings in light of age and understanding. The burden and standard of proof were the balance of probabilities.
3. Four-stage analysis. Applying the route map in Re K (Force Marriage: Passport Order), the court established the underlying facts, determined the need for protection, assessed the risks and protective factors, and accommodated the protective necessity with the relevant Article 8 rights. Where Article 3 risk is established, the analysis is accommodation rather than a conventional balancing exercise; any interference with qualified rights must nevertheless be precise and proportionate.
4. Risk findings. The court rejected the father’s account of the proposed Bangladesh journey and found that, absent intervention, the journey was intended to facilitate a prolonged stay and attempts to arrange A’s marriage. The risk remained real and immediate. There were no sufficient protective factors, particularly given the mother’s unexplained absence and the father’s continuing lack of credibility.
5. Closed evidence and Special Advocate. In a contested case where withheld evidence is fundamental, the applicant should raise the issue at the earliest opportunity and provide the material to the court. The court must decide what, if anything, the respondent should be told, anticipating how the case can fairly proceed. Appointment of a Special Advocate is exceptional. If appointed, the Special Advocate should review the open and closed evidence and make representations before the closed evidence is heard. Separate open and closed judgments may be required, with arrangements preventing inadvertent disclosure.
6. Proportionality. Retaining the passports substantially reduced the risk of coercion into travel. Any resulting interference with family or private life was small, while the consequences of forced marriage would be fundamental and life-changing. The arrangements were therefore effective and proportionate.