Re AG (Welfare: Forced Marriage Protection Order)

In Re AG (Welfare: Forced Marriage Protection Order) [2024] EWCOP 18,  Theis J considered the position of a 24 year old woman with a mild learning disability. She had undergone a marriage ceremony in 2019 in circumstances which were unclear, Theis J ultimately finding that she could not conclude that she had been forced to marry by her parents, noting that “[t]his uncertainty is founded largely on the failure of the local authority to properly investigate and analyse the evidence, or keep it under review” (paragraph 134).  She was, however, satisfied that the marriage was not entirely free from family influence, in particular from her parents. She had subsequently been divorced under Sharia law, and was at the time of the hearing in a shared lives placement, having made a capacitous decision to move there. 

The local authority responsible for her sought orders:

1. Under the Forced Marriage (Civil Protection) Act 2007 for a Forced Marriage Protection order (‘FMPO’) for one year to prevent the parents from forcing AG to get married, for the local authority to continue to retain AG's travel documents, prevent the parents from applying for more travel documents for AG and to prevent AG from travelling abroad unless accompanied by her shared lives carer.  Her parents opposed this and the Official Solicitor sought interim orders for 6 months to enable further risk assessments to be undertaken.
2. Under the MCA 2005 for approval of the current care plan as being in AG's best interests and for an order authorising the local authority to deprive AG of her liberty in her current placement. The parents and Official Solicitor support the order approving the current care plan but opposed any orders that authorised the deprivation of liberty as being not required or justified on the evidence.

The Official Solicitor sought short term orders under the inherent jurisdiction to provide a structure around  AG's contact with her family and to enable AG to retain her capacity regarding such contact in accordance with the principles outlined in DL v A Local Authority and others [2012] EWCA Civ 253.

The judgment is lengthy and detailed.  In summary, Theis J acceded to the application for an FMPO for a limited period of time: 

with detailed directions for the necessary risk assessments to be undertaken to include an informed analysis of the risks and protective factors with Article 3, including informed effective and consistent engagement with the family by someone with real expertise in this area and an analysis of the risks of any trip to Pakistan. This work should include an assessment of AG's capacity to travel and a framework to underpin any travel, as suggested on behalf of the Official Solicitor. The proposed framework is set out at the end of this judgment. It is aimed to assist professionals working with AG, but may also be of relevance when care planning in similar cases involving travel abroad.  

The framework was as follows:  

1. Where is it proposed that AG travels?  Research the destination, travel options to get there, the facilities available there (including access to medical care), accessibility and transport options
2. What are the dates of travel?
3. Where is it proposed that AG will stay?
4. Who will be travelling with AG?
5. What care and support will be required during the stay?
6. Who will provide that care and support? 
7. Consider writing and/or carrying a "travelling letter" which provides a brief description of AG's needs and any diagnos(es) and the details of her doctor. If appropriate, include details of any difficulties that could occur and what assistance might be needed.
8. Consider whether international roaming is available (so that AG can use her mobile phone on a foreign network) and ensure she has an adaptor so her mobile phone can be charged.
9. What are the flight details? When contacting travel providers and airlines, clearly state any needs and any assistance that AG may require.
10. What are the Visa requirements?
11. What vaccinations are needed before travel?
12. What medication is needed? Ensure there is enough medication for the trip and possible delays.
13. Check that any prescribed medication can be taken abroad (some medication contains ingredients that are illegal in some countries).
14. How will the trip be funded?
15. How much money is needed to cover all costs?
16. Who will provide assistance to AG with finances when abroad (as necessary)?
17. What travel insurance is needed? Check that it covers the places that AG will visit, the duration of the visit and any planned activities.
18. Is AG's passport valid?
19. Check whether the emergency contact details on the back of the passport have been completed.
20. Is there an extra form of photo ID that can be checked?
21. Consider any advice that has been provided by the Foreign, Commonwealth & Development Office (FCDO) regarding travel to the area chosen (and any safety and security issues raised).
22. Provide contact details for the nearest British embassy, high commission or consulate, or the FCDO in the UK.
23. Consider what to do if AG goes missing abroad, including detail of how to report it to the police and how the FCDO can assist.
24. Whether independent travel training can be given to AG before the proposed trip to maximum her independence and autonomy.
25. Ascertain the wishes of AG and all those who should be consulted regarding the trip.

Whilst Theis J endorsed the case plan put forward by the local authority, on the basis that AG lacked capacity to make decisions about her care (but not about residence or contact), she did not accept that AG was deprived of her liberty, either objectively or subjectively.  In this, the local authority’s case was somewhat hampered by the fact that it had only a relatively few months previously declined to grant a standard authorisation in respect of a care home where she was then resident, on the basis that the mental capacity requirement was not satisfied.  She considered that, in the event that AG did express a wish to move from the placement “there is a clear statutory framework to deal with that situation through a combination of the statutory responsibilities of the local authority under the Care Act 2014 and the statutory protection provided by ss 5 and 6 MCA, and, in an emergency situation, section 4B MCA” (paragraph 145, being clear – see paragraph 114 – that s.4B provided authority whilst a decision was being sought from the court). 

Theis J acceded to the Official Solicitor’s invitation to invoke the inherent jurisdiction on a time-limited basis with the aim of supporting AG being free from external pressure to facilitate her unencumbered decision-making. At paragraph 148, Theis J identified that: 

In the unusual circumstances of this case I am satisfied that the inherent jurisdiction should be invoked in the way outlined by Ms Sutton. I am satisfied that a combination of the order regulating contact between AG and her parents, supported by the framework to manage any changes in a way that supports any consequent decision will best enable AG to retain her capacity about making decisions about contact, and, indirectly, residence. The order will only be in place for a limited period until December 2024. I am satisfied, bearing in mind the history of this matter that without that structure being in place it is very likely AG will be unable to manage the consequences of any pressure on her to spend increasing time with her parents which, in turn, will impact on her ability to make capacitous decisions.