Re P (Appeal: Forced Marriage Protection Order: Jurisdiction)

The jurisdiction to make a forced marriage protection order is broad and flexible. Physical presence, habitual residence or British citizenship of the person to be protected is not a threshold requirement. The court must consider all the circumstances, including the need to secure that person’s health, safety and well-being. The jurisdiction may protect a foreign national living abroad where the respondent has a sufficient connection with England and Wales, including British citizenship or habitual residence. Orders may regulate conduct outside England and Wales and may remain in force indefinitely where the risk requires continuing protection.

P, a United States citizen living in the United States, appealed against the dismissal of her application for a forced marriage protection order under Part 4A of the Family Law Act 1996. The District Judge considered that the court lacked jurisdiction because P was neither physically present in England and Wales nor a British citizen.

P’s husband, Q, was a dual British and Pakistani national habitually resident in England and Wales. P alleged that she had been forced into marriage in Pakistan and that Q continued to harass and intimidate her from England. The appeal concerned whether the court could protect a non-resident foreign national from conduct by a respondent connected with this jurisdiction.

1. Appeal allowed. The District Judge had jurisdiction to make a forced marriage protection order for P. The High Court remade the decision and made an order restraining Q from contacting, harassing, pestering or intimidating P, directly or through others, including by social media.
2. The Family Law Act 1996 was drafted in the widest and most flexible terms. Section 63 A imposed no threshold criterion based on the protected person’s physical presence, habitual residence or citizenship. The court’s task was to consider all the circumstances, including the protected person’s health, safety, well-being, wishes and feelings.
3. The jurisdiction was extraterritorial. Section 63 B(2) expressly permitted orders concerning conduct outside England and Wales and persons involved in other respects. It would be inconsistent to require the protected person to have a connection with the jurisdiction where the respondent was a British national and habitually resident here.
4. Section 121(7) of the Anti-Social Behaviour, Crime and Policing Act 2014, which gave the forced-marriage offence extraterritorial reach, reinforced that construction. Reading the civil protection provisions consistently with that approach was permissible under section 3 of the Human Rights Act 1998 because the interpretation went with the grain of the legislation.
5. On the facts, P had been forced into marriage and required protection from Q’s continuing harassment and intimidation. Applying the route map in Re K, the conduct engaged her Convention rights, including articles 3 and 8. A finite order would not adequately address the continuing risk, so the order was to remain in force unless varied or terminated by a subsequent court order.

• High Court (Family Division): The appeal from the District Judge’s decision of 2 November 2022 was allowed. The decision was remade and a forced marriage protection order was made.
• District Judge: The application was dismissed on the basis that the protected person was neither physically present in England and Wales nor a British citizen.