Forced Marriage Protection Order

By Celia Kitzinger, 16 February 2023

The young man at the centre of this case (M) is 24 years old and has been diagnosed with moderate learning disability and “autistic tendencies”.

Back in August 2020, M’s mother told social workers that she had found a ‘suitor’ for her son in Pakistan, and that she planned to take him there to be married in a couple of months’ time.  

There were concerns that M might not have capacity to make his own decisions about sex and marriage, and the local authority’s subsequent assessments found that he didn’t.  

So, on 12^th October 2020, at a closed court hearing  (that is, one that the mother wasn’t informed about in advance and didn’t attend) a judge in the Family Court made a Forced Marriage Protection Order as an interim measure.

A week later, at another hearing she was invited to attend, his mother confirmed that she was planning a marriage between her son and a woman in Pakistan: she was “very candid” and was “not hiding her intentions”.  As a result,  the Forced Marriage Protection Order was renewed and it’s been renewed six more times since then. (I believe that M’s passport was also confiscated at that time.) 

In November 2020, the local authority made the application to the Court of Protection to consider M’s capacity to marry and consent to sexual relations and to ask the court to make declarations under the Mental Capacity Act 2005. Things then stalled somewhat, in part due to the fact that M’s mother has not been able to obtain legal aid (despite great efforts made to help her) and partly due to her illness: she is very seriously ill with a brain tumour and has a life-expectancy of only 12 months.  She’s consistently said that she’s not forcing her son to marry, but that it’s his right to do so, and “If he does not get married, he will live alone for all his life”.

I watched a previous hearing in this case before a different judge (Lieven J) back in April 2021 – a hearing which the mother had been unable to attend as she was in hospital at the time. (His aunt was looking after M at her own home.) At that hearing, the judge authorised an independent expert report on M’s capacity and ordered that an Urdu interpreter should be in court for the next hearing.  

According to s. 27 Mental Capacity Act 2005, nobody can make a decision to marry on behalf of someone else. (Other so-called ‘excluded decisions’ include sex, divorce, and adoption)

The judge back in in April 2021 explained to M’s aunt and other family members present at that hearing that:  “normally with decisions for someone in this court, the first question is ‘do they have capacity?’ and the second question, if they don’t, is whether what’s being proposed is in their best interests. But with marriage it’s a bit different. If he doesn’t have capacity, he can’t enter the legal contract of marriage, so we don’t get to a best interests decision.” 

The hearing of 8^th February 2023

By the time of this hearing before Mrs Justice Arbuthnot (COP 13682498) on 8^th February 2023, the aunt was looking after both M and M’s mother.  All three attended the hearing remotely, M’s mother as a litigant in person from her bed.

It was a hybrid hearing and I was observing remotely.  Counsel for the represented parties (Zimran Samuel for the applicant local authority and Abida Huda for M via his litigation friend the Official Solicitor) were in a courtroom with the judge in the Royal Courts of Justice in London.  M’s mother, aunt and M himself were attending via video-link from a bedroom in the aunt’s home. The interpreter was attending via a different video-link:  she provided simultaneous interpretation of what was being said in the hearing via a telephone link with M’s mother.  There was serious noise interference on the line and the interpreter kept having to ask the mother to repeat herself, and the judge kept having to ask the interpreter to repeat herself. 

The local authority had made an application to the court for a declaration that M lacks capacity to make his own decisions about sex and marriage, based on the independent expert evidence now before the court. The local authority asked the judge to make a Forced Marriage Protection Order. These applications were supported by the Official Solicitor.

The only difference of opinion between the local authority and the Official Solicitor was about whether or not M’s passport should be returned.  The Official Solicitor was concerned that there might be some emergency situation back in Pakistan (e.g. M’s grandmother becoming ill) and M would need to travel at short notice for a valid reason – so there should be some provision for getting his passport back without having to make a court application to do so. An added complication was that the passport was due to expire in April, so there was an issue about whether the local authority would renew it for M, or whether it could be returned to M’s aunt so that she could do it.  The judge was very concerned to ensure that the passport was renewed and would be ready for travel if needed.

The expert assessment ordered by the court had found that “M does not have the capacity to make decisions about the conduct of these proceedings, capacity to consent to marriage and capacity to consent to sexual relations”.  It originally found that “all practicable steps have been taken to support M to make a decision”, but the Official Solicitor raised some additional questions, on the basis of which the expert concluded that it is “possible” that “further work over a period of 18-24 months on his communication and understanding of more complex language and concepts” might make a difference.  So, the plan is that the Forced Marriage Protection Order should be in place for two years (only), while this educational work is undertaken (by a Speech and Language Therapist).  At the end of that period M will be reassessed to determine litigation capacity as well as capacity to consent to marriage and sex.

The possibility that M might gain capacity if he was provided with support and education had been considered in the early hearing I observed in April 2021 but Lieven J had considered that “it may be an impossible mountain to climb”.  In this hearing, Arbuthnot J also seemed not to think it likely that M would be able to gain capacity: reflecting on the educational programme, she said: “Hopefully it will bring M to a point where he will no longer lack capacity in relation to those things. That is the hope. Who knows whether it will work out”.

As a litigant in person, M’s mother addressed the court – but noise interference, and the fact that she and the interpreter often talked over each other, made it difficult for me  to understand what was being said. The judge had to ask several times for clarifications.  Here (as best I could capture it) is part of their exchange: 

Judge: Thank you for joining. This matter has been going on for a year and a half and various Forced Marriage Protection Orders have been made on an interim basis, and I’m being asked to make a final order today, for two years from today. And I’m told that M has been seen by experts, and that he – what we say ‘lacks capacity to conduct proceedings’ but perhaps more relevantly to you, he can’t agree or consent to marriage. And nor can he care for himself. And what they plan on doing is having some work with him, to help him understand what might be involved in marriage or agreement to marriage, and so educational work would take place for 2 years. […] Would you agree with the doctors who say M doesn’t have capacity to consent to marriage?

Mother: Yes, I know my son is slow in learning but I want him to get married.  I can’t leave him like this. He’s my son.

Judge: But at the moment all the doctors say he can’t agree to marry. He doesn’t understand what it means really.

Mother:  When he was in college, he tried to make a girlfriend ((there was a lot more said here in Urdu but I wasn’t able to understand the translation))

((later))

Judge: She needs to understand, this order, the Forced Marriage Protection Order is not forever. It’s for 2 years whilst this work is being done with your son so he understands more what marriage will involve.  Does the mother understand she can’t force or encourage him to get married – for two years?

Mother: I agree with it.

Judge: This is a very serious order and if you force or encourage or tell M to get married in any ceremony at all, you could get into trouble. Do you understand that?

Mother: I will not ask him to get married then, for two years.

Judge: Good. And also she cannot remove, or allow or encourage anyone else to remove M from England and Wales for two years. Do you understand?

The mother will be sent an Urdu translation of the Forced Marriage Protection Order.

Reflections

According to the most recent statistics, over the course of 2021 the Forced Marriage Unit gave advice and support in 53 cases concerning marriage for someone with mental capacity concerns – more than half of them male, and about half involving marriages in Pakistan. 

Listening to the mother’s interaction with the judge, and understanding her reasons for wanting her son to marry (she wasn’t ‘forcing’ him, she was acting in his best interests by arranging for companionship and care), I was struck by the huge distance (ethical and cultural) between her position and the law.  

According to internationally-recognised forced marriage expert Mindy Mahill, the situation for this mother and son is not unusual:

[M]any parents want their children who have capacity issues to be looked after once they have passed away and they do not want the burden of them being looked after by their siblings. For this reason, they are taken ‘back home’ and married.  In many communities this is not looked upon as ‘wrong’ and is accepted that the family have done this in the best interests of their child. It can be said that some families do not even know that it is ‘forced marriage’ and a criminal offence. 

Forced Marriage Convictions: A view from the police

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 390 Court of Protection hearings since May 2020.  She tweets @KitzingerCelia