Forced marriage and the Court of Protection

Family Law|January 23rd 2014

The case of YLA v PM and MZ makes for truly grim reading. The judiciary have been far too frequently criticised for actions they have taken in public law cases (that is to say, cases involving the relationship between individuals and the state). And almost as frequently, such criticisms are shown to be misconstrued when all the facts emerge. But in this case, we can read paragraph after paragraph of the deepest concern for two vulnerable people – a mother and child, concern which leaps off the page in the judgement of Mrs Justice Parker.

Her frustration and even anger at what has happened to these two defenceless innocents is crystal clear as she attempts to remedy what has been so cynically done to them with apparent impunity.

It is a masterly judgement and I would suggest that every critic of our child care system takes time to read it. It concerns the Court of Protection, a pillar of the family justice system which has come in for a great deal of unwarranted criticism in recent years.

Mrs Justice Parker says she composed her judgement with a heavy heart, and that does not surprise me as Court of Protection cases do not come much worse.

The 37 year-old mother, ‘P’, at the heart of this case has an IQ of just 49, and therefore a severely diminished capacity to make decisions about her life. Her overall learning ability has been assessed at moderate to severe. A Sikh who had at some stage converted to Islam, she had been married off twice before. Both marriages had ended. Her first husband was unable to obtain a visa to enter the country. Her second, to a maternal cousin, ended in divorce  in India when he claimed he had not known she had behavioural issues beforehand.

P had been known to Social Services for ten years beforehand and her mother had promised them P would not marry again. Nevertheless, a third marriage too place, to a 33 year-old man, referred to as ‘M’. He had entered the UK as a student and had unresolved immigration problems.

A Muslim marriage took place and almost immediately P became pregnant. A civil marriage followed. There were various issues before the civil marriage was performed which threw doubt on P’s capacity to marry and the local authority had registered concerns, but the marriage went ahead anyway. There were unproven allegations that £20,000 was paid to her mother and step father for the marriage and M was looking for a route to remain in the country. His course had ended and he had then enrolled on another at the “College of Venereal Disease Prevention” which was unsurprisingly closed down.

A baby, ‘B’ was born and P was clearly incapable of looking after the baby. The parents were living at a foster placement where they could be supervised pending a determination by the court. With a wife and child M could argue that he had a right to stay in the country, under the Article 8 of the Human Rights Act, which governs the right to privacy and family life. Both P (now represented by the Official Solicitor because she had no capacity to litigate) and M asked the judge to make no declarations in relation to P’s capacity to consent to sexual intercourse or marriage, or in relation to where where they should live. This could affect their marital status. The judge refused.

Mrs Justice Parker took a dim view of M, saying: “I think that there is a very significant possibility that this marriage was entered into, and indeed this child created, for reasons solely to do with immigration status.  [M] is certainly relying on the marriage and the existence of the child now.” His observed conduct towards P gave cause for concern, as did his ability to parent the baby on a full time basis.

Turning to P’s capacity, the judge considered the Human Rights Act, saying: “The very essence of the Convention is respect for human dignity and human freedom.” She went on to consider the law, and relevant previous cases.

On the question of P’s capacity to consent to sexual relations, the judge found that despite her understanding the mechanics of sex, she lacked the capacity to understand the health risks from such relations and the capacity to say ‘no’. The concluded, therefore, that she lacked the capacity to consent to sexual relationships. Similarly, while P understood some basics concepts of marriage she did not have the capacity to consent to the ceremony

This meant that the Official Solicitor could apply to the court for the marriage to be declared a ‘nullity’ (something legally void or invalid), and the judge urged him to consider doing so.

The judge described it as a tragedy, in separating mother and child but she was vindicated in her decision because after the judgement was handed down, the husband suddenly also decided that he no longer wished to be married to P. Instead he sought to care for his child alone. P meanwhile, had sustained a broken jaw, caused, apparently, by “yawning”.

The judge advised she could not gainsay the father’s request given he was the baby’s parent and carer but told the husband that baby B should be brought up knowing and respecting its mother. She stated that the mother should have contact with the baby. The judge added “I do not know whether or not [the father] took any notice.” Do you shudder for the little one’s future?

There was only one winner in this sorry affair – the overstaying husband, who had outwitted and manipulated the system, at the expense of such a vulnerable young woman with the pregnancy he had forced on her, and her incomprehension of why things were being done as they were. In the background there was the apparent connivance of P’s own mother. Whether the mother and her husband took money for it or not, she believed her daughter “should be married.”

Readers of this appalling case should never forget that given the lack of capacity to consent, not only can it be the subject of a nullity petition but also, this marriage is a forced marriage and there are laws and procedures available to protect extremely vulnerable women from being forced into a marriage – whether the proposed marriage is a religious or civil one.

If you are concerned about a possible forced marriage in this country or about British nationals abroad, always remember that something that can be done. Legal aid is available and the process is speedy. For more information, click here.

In the longer term, forced marriage is set to become a criminal offence, alongside breaches of a forced marriage protection order. The sooner this happens the better. Had a forced marriage order been obtained before the Islamic ceremony undergone by a trusting P, things could have turned out very differently.

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