MAS v ZK & Ors

Where a child or young person at risk of forced marriage is outside the jurisdiction, the court must adopt a case-specific, multi-agency approach. Existing guidance concerning the Foreign, Commonwealth and Development Office and Forced Marriage Unit should ordinarily be followed and should not be supplemented by a rigid court-made protocol.

The FCDO’s role is principally facilitative and remains subject to the law of the country concerned. It cannot generally be ordered to provide consular assistance or to undertake welfare or investigative functions. Local authorities will usually have the leading safeguarding and repatriation role, while the police have more limited powers abroad. The agencies’ responsibilities should be considered at the earliest stage, with the FCDO or Forced Marriage Unit involved where appropriate.

The proceedings concerned a young person who alleged that she was at risk of harm and forced marriage by her parents. While abroad in a country with which she had no connection, she escaped, was located by local police and remained in a children’s home for approximately five months. The English proceedings included wardship, a Forced Marriage Protection Order and Tipstaff orders, together with requests under the 1996 Hague Convention.

The young person’s return was delayed because the overseas authorities required collection by a UK state official. Following the conclusion of the proceedings, the court invited submissions from the applicant, the FCDO, the National Police Chiefs’ Council and a specialist charity. The central issues were which UK body should investigate the overseas circumstances and which body should take responsibility for repatriation.

1. Existing guidance. The President’s Guidance, the Multi-agency Statutory Guidance for Dealing with Forced Marriage and the Multi-agency Practice Guidelines provide a clear and consistent account of the agencies’ respective roles. It was neither appropriate nor necessary to create an additional general protocol, particularly because overseas law, procedure, practice and individual circumstances vary considerably.
2. FCDO and FMU. The FCDO may facilitate communication with overseas authorities, provide information and country-specific advice, assist with travel arrangements and documents, and support repatriation where appropriate. Its activities remain subject to the domestic law of the foreign country. The Foreign Secretary retains discretion over the conduct of international affairs. The court cannot order the FCDO to exercise consular assistance, and there is no general duty to provide it. Consular staff cannot generally conduct welfare visits, safe-and-well checks or investigations.
3. Investigation and liaison. Responsibility for investigating facts abroad ordinarily rests with the authorities of the country concerned. In England and Wales, the applicant or representatives should ordinarily make enquiries initially. Where the protected person is a child and cannot do so, the local authority will usually be best placed to liaise with overseas social services. The FCDO or FMU should be consulted for country-specific advice, especially because direct overseas contact may create risks to the child’s safety. The police will not ordinarily investigate for Family Court purposes unless unusually involved as the applicant, and may act as a conduit or assist within the jurisdiction.
4. Repatriation. The responsible agency must be identified at an early stage. Local authorities will generally be the most suitable body to lead or arrange repatriation because of their safeguarding duties, training and likely responsibility for the child on return. Social workers may travel abroad with the consent and invitation of the relevant foreign authorities, although they cannot exercise English legal powers abroad. FCDO staff involvement is confined to truly exceptional circumstances and remains discretionary.
5. Procedure and jurisdiction. Agencies should engage promptly and coordinate their responsibilities before, or at the earliest stage of, proceedings. There can be no one-size-fits-all approach. Wardship may be an appropriate protective mechanism for a child under 18, alongside other orders. Proceedings invoking the High Court’s inherent jurisdiction over children, or seeking a Tipstaff order, must begin in the Family Division, although later transfer to the Family Court may be appropriate where only residual issues remain.