Sun, 28 Jul 2013
By Adreeja Chatterjee
In this two part article, Adreeja Chatterjee provides an introduction to the forced marriage legislation. This article explores the ‘typical’ forced marriage scenario, and how this compares to scenarios which crop up in the Court of Protection – where the mental capacity of the bride or groom is at the heart of the case. There is also an exploration of the case of [XCC v AA and Anor (Rev 3)  EWHC 2183 (COP) (26 July 2012)] – a case in which Adreeja appeared in the first part of the litigation, and which merits close scrutiny.
When one hears the phrase “forced marriage” a certain stereotype probably springs to mind: a young girl or woman, wedged uncomfortably between two clashing cultures, coerced into a union to satisfy her rigid and uncompromising elders.
In modern Britain, it is very important for frontline professionals and for us as legal practitioners to distinguish between forced and arranged marriages. An arranged marriage is one in which the parents select a match, sometimes helped by a priest, community elder, or members of the family, and the couple agree to the match. Arranged marriages are practised in South Asia, Africa and the Middle East. Religions as different as the Unification Church and Hasidic Judaism embrace arranged marriages. In modern-day India, some arranged marriages are introductions only, things are then left up to the couple to date, manage the relationship and make their own choices.
The definition under the Forced Marriage (Civil Protection) Act 2007 tells us that “forcing includes coercing by threats or other psychological means”: s.63A (6) Family Law Act 1996.
Historically, forced marriages span centuries and the globe – John R. Jewitt, an English blacksmith captured for three years by the Nootka people in the Pacific in the early nineteenth century was forced by his captors to choose between capital punishment or matrimony with one of their women. He chose the latter as the least of two evils.
Is not a shotgun wedding in its true sense essentially a forced marriage? The Koreans call it “sokdowebaan” which translates as “speeding over the limit” – where the marriage is often conducted very quickly due to pregnancy.
The provisions of the Forced Marriage (Civil Protection) Act 2007 are enshrined in Part 4A of the Family Act 1996 and came into force in November 2008. The Forced Marriage Unit, the responsible government department set up three years previously, dealt with just under 1500 cases in 2011, 14% of which involved children under the age of 15. Although the oldest person it assisted was said to be 87 years old. Roughly 150 applications for forced marriage protection orders (FMPOs) are made per year.
Powers of the Court and Sanctions
The raft of orders available is very wide: s.63B: an FMPO may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate. For practical purposes, this may include injunctive relief forbidding someone (“B”) whether by himself or with the help of another entering another (“A”) into a ceremony of matrimony or engagement, or attempting to arrange the same. Such a remedy has real “teeth” when coupled with an order made by the court to surrender, for example, A’s passport. In other words, A’s family (if they are the ones about to force a marriage through) are prevented from taking A out of the jurisdiction to set up the marriage abroad. Other orders open to the court, for example, include preventing the family members – or the husband-to-be – from residing with A, contacting A, or attempting to discover her whereabouts. All of these forms of relief fall under s. 63B.
The terms of FMPOs may relate to conduct outside England and Wales: s. 63B (2) (a). The arm of the law is therefore as long as its grasp is wide - although for practical purposes trying to enforce such orders may be quite difficult once a forced marriage has taken place in another country. This is further compounded if the victim remains there, often without her passport or a source of help. A power of arrest can be attached, where there has been the use or the threat of violence. Undertakings can be accepted in suitable cases, with the consequences of breach amounting to a contempt of court with the usual penalties of up to two years’ imprisonment.
So much so for the “typical” scenario where no full and free consent is given by an adult who nevertheless has capacity to consent. Please see [Re P (Forced Marriage) 2011 EWHC 3467] for such a case in which on the facts would have justified the making of a FMPO, although in fact such a remedy was not sought by P when the matter came before the courts.
Between the Family Courts and the Court of Protection
There is a distinct second category of cases which start off life as FMPOs through the family courts, and make their way to the Court of Protection.
These situations include where members of minority ethnic community groups have sought to marry off a disabled adult son or daughter. The parents in question - often law-abiding citizens who love and cherish the offspring in question, having cared for him or her all their lives with little outside support – are anxious about what the future will hold once they are no longer able to provide such care. These same parents are genuinely dismayed and bewildered to find that this is perceived to be a case of “forced” marriage or that such conduct is not in fact legal. Of course, if the adult in question is unable to give consent due to mental impairment, the marriage in question is “forced” as defined by the Act.
The case of [XCC v AA and Anor (Rev 3)  EWHC 2183 (COP) (26 July 2012)] is an example of one such case. DD was the child of elderly Bangladeshi Muslim parents, in their seventies. She was at the time of the litigation twenty-eight, and had Down’s Syndrome. She was unable to live independently, requiring assistance in many significant day-to-day tasks. She lived with her parents who dearly loved her, and she was a valued member of her wider family. They would visit Bangladesh every couple of years, and during one such visit, DD got married to a cousin in a ceremony there. Prior to that, her parents had asked her GP about the chances of their daughter having a Down’s Syndrome baby. The doctor’s reply was that her fertility would be low but it was possible. It seemed as though the GP never advised that perhaps it would not be wise for her to get married, or that it might be difficult for her to understand the changes in her body if she became pregnant.
About six years after the marriage, a social worker visited her at home in the UK and established from speaking to the family that her husband was planning on coming over to join her here. No concerns were recorded and it would seem no further action was contemplated by the social worker. Not long afterwards DD’s husband did indeed join her on a spousal visa and he started sharing a bedroom with her in her parents’ house in the UK. All the evidence was that she liked her husband; she would dress up for him when he returned in the evenings, and they would go for walks, which was beneficial for DD, as she was overweight and her parents had limited mobility so could not take her out much themselves.
Some months after her husband arrived in the UK, another social worker arrived with an interpreter. That social worker concluded that a specialist assessment of her ability to understand marriage and sexual relationships was needed. Soon afterwards the police applied for and got a FMPO with a power of arrest. Due to the issues surrounding DD’s mental capacity, the case was transferred to the Court of Protection. The Official Solicitor was appointed to represent her. The husband was eventually required to leave the family home and to refrain from contact, including sexual contact with DD - this would have been a criminal offence under the Sexual Offences Act 2003 - and undertakings were given to that effect.
The psychiatric assessment and independent social work assessment commissioned in the proceedings concluded that DD was functioning at a “very very low level” and had a significant learning disability. She knew that she had been married, and knew who her husband was, answering that “love” meant “someone being happy”, but did not understand the nature of the marriage contract. The psychiatrist also concluded that DD did not have the capacity to consent to sexual relations. She could barely name parts of her own body. It was not clear from DD’s answers whether she had sexual intercourse or not. The husband said that they had, her own mother said she thought they had. Interestingly, the judge found otherwise.
The family completely disagreed with the result of the expert assessments. They wanted the husband – who was DD’s first cousin – to come back and live with her again. They were law-abiding God-fearing citizens – the father led the prayers at the local mosque. They were bewildered that it was thought they had done anything wrong. They were genuinely trying to provide for their daughter, although on many other points their evidence was inconsistent and not accepted by the court.
Significant Best Interests Decisions
The judge made a number of best interests decisions, not confined solely to the issue of the marriage. She concluded after a contested hearing involving evidence from a psychiatrist, independent social worker, the parents, and the husband, that it was not in DD’s interests to have a marital relationship with her husband, or to live with him, or to have contact with him – that would be too confusing. It was in her best interests to continue to reside with her parents, although relations between the family and Social Services had inevitably soured by now. The litigation (in which the author represented the baffled parents in Round One) continued into Round Two, where a central question arose: what to do about the marriage?
A professor of Islamic family law had been instructed to report on whether the marriage, contracted in Bangladesh, was valid or not given that under English law, DD was unable to give her consent to it due to her mental incapacity. In his opinion, the marriage was valid under Bangladeshi law, as DD’s father, her guardian in effect, had consented to it.
What then to do about the marriage here in the UK?
Mrs Justice Parker, who dealt with the case throughout, had found in Round One of the litigation that, in part, the husband’s motive in marrying her (he was not himself disabled physically or mentally) was to live and work in the UK. She had further found - a fact-finding hearing having taken place in relation to this - that the husband had treated DD roughly and ineptly with unnecessary physical force during a hospital stay. This had been noted by neutral health professionals treating DD, although there was no suggestion that her parents were present or aware of such treatment. The professor’s evidence was that shame and stigma would attach to DD and to her family within their community should the court take steps to end or not to recognise the marriage. After all, she and her husband had lived under the same roof in the UK. The parents urged the court in the strongest terms not to end the marriage. The husband took the same approach. The local authority and the Official Solicitor were inclined to agree.
However, it is plain from the judgment that the judge was very exercised about this, taking the contrary view. In the end, after hearing evidence from the professor as to shame and stigma (a point which was conceded in the witness-box), and after the Official Solicitor also altered his position, the court went on to declare that the marriage of DD and AA should not be recognised in this jurisdiction. It also declared that it was in DD’s best interests for a nullity application to be issued and the Official Solicitor was appointed as DD’s litigation friend for that purpose.
In the second article, to follow in the next Ebrief, Adreeja will look more closely at the law involved in that important decision. In particular, explore the tests for capacity to enter into a marriage, and for sexual relations, and the law of nullity/non-recognition as it applies to marriages where the protected party is found (retrospectively) to have been unable to give his or her consent.
To view Adreeja Chatterjee CV's please click here