Mental Capacity Case

Re K (Forced Marriage: Passport Order)

Sir Andrew McFarlane P, Peter Jackson and Haddon-Cave LJJ

This judgment is the first consideration by the Court of Appeal of Forced Marriage Protection Orders (FMPOs) made under s.63A Family Law Act 1996.  The issues that arose were whether there was jurisdiction to make an FMPO where the person concerned had mental capacity to make relevant decisions and opposed the FMPO, and whether an indefinite Passport Order could be made in relation to an FMPO.

The case concerned a 35 year old woman, K, who had contacted police in 2015 saying that her family had threatened to murder her if she did not marry a relative. Similar concerns had also been raised by neighbours. The police applied for and were granted an FMPO at a without notice hearing.  There followed a contested hearing a few months later, by which time K had withdrawn the allegations.  The court decided that the FMPO should nevertheless continue, and ordered that K's passport should be held by the police until further order.  Shortly after the hearing, K fled the family home alleging assault, but again later withdrew the allegation. She was moved to a refuge.  In 2017, K wanted to travel to Pakistan for the funeral of her mother, but her application for discharge of the FMPO and the Passport Order was refused, K not having engaged with professional advice about how to protect herself during foreign travel. K's application for permission to appeal was granted and sent to the Court of Appeal, which allowed the appeal only to the extent of imposing a 4 year time limit on the Passport Order, at which stage the court would need to review whether it should be continued.

The Court of Appeal noted that forced marriage was a 'fundamental abuse of human rights, a form of domestic abuse, and…a criminal offence'. It was not confined to children or adults who lacked capacity, and 1 in 5 victims was male. It was not a one-off event: "…the marriage forms the start of a potentially unending period in the victim's life where much of her daily experience will occur without their consent and against their will, or will otherwise be abusive. In particular, the consummation of the marriage, rather than being the positive experience, will be, by definition, a rape. Life for an unwilling participant in a forced marriage is likely to be characterised by serial rape, deprivation of liberty and physical abuse experienced over an extended period. It may also lead to forced pregnancy and childbearing. The fate of some victims of forced marriage is even worse and may include murder, other "honour" crime or suicide".   As such, a forced marriage was likely to include behaviour sufficient to breach Article 3 ECHR.

The Court of Appeal was clear that Parliament had not sought to limit the use of FMPOs to people without mental capacity.  There was no mental capacity test in the legislation, nor any linkage to the MCA 2005 – instead, the legislation provided that the wishes and feelings of the adult concerned were just one factor among many that the court had to consider. This could give rise to an obvious conflict between Article 3 and Article 8, so 'the court must strive for an outcome which takes account of and achieves a reasonable accommodation between the competing rightsThe required judicial analysis is not a true 'balancing' exercise in consequence of the imperative duty that arises from the absolute nature of Article 3 rights. Where the evidence establishes a reasonable possibility that conduct sufficient to breach Article 3 may occur, the court must at least do what is necessary to protect any potential victim from such a risk. The need to do so cannot be reduced below that necessary minimum even where the factors relating to the qualified rights protected by Article 8 are particularly weighty.'

In practice, this meant the court assessing the level of risk, the quality of available protective factors and the nature and extent of the interference with Article 8 rights that would be entailed by making an FMPO. This would include an analysis of the proportionality of making an order, so that consideration would have to be given to whether a less intrusive measure might suffice, and to balancing the effect of the order on the person concerned against the objective and the likelihood of that objective being achieved.

The Court of Appeal set out a 'routemap' for decisions in future cases:

  • Stage 1: Establish the underlying facts based upon admissible evidence and by applying the civil standard of proof. The burden of proof will ordinarily be upon the applicant who asserts the facts that are said to justify the making of a FMPO.
  • Stage 2: If the making of the order is contested at a hearing on notice, determine any relevant factual issues.
  • Stage 3: Assess both the risks and the protective factors that relate to the particular circumstances of the individual who is said to be vulnerable to forced marriage. Consider drawing up a balance sheet. Decide whether there is a real and immediate risk that Article 3 is engaged.
  • Stage 4: If the facts are sufficient to establish a risk that the subject will experience conduct sufficient to satisfy ECHR, Article 3, undertake the exercise of achieving an accommodation between the necessity of protecting the subject of the application from the risk of harm under Article 3 and the need to respect their family and private life under Article 8 and, within that, respect for their autonomy. This is not a strict "balancing" exercise as there is a necessity for the court to establish the minimum measures necessary to meet the Article 3 risk that has been established under Stage Three.
The Court of Appeal noted that the length, breadth and specific content of an FMPO would be case-specific, and that it was 'unlikely in all but the most serious and clear cases' that an indefinite order would be appropriate.

On the question of indefinite Passport Orders, the Court of Appeal concluded that this power clearly existed, even where the person concerned had capacity and was objecting, and could even extend to making an order against the person themselves.  In practice though, an open-ended Passport Order should only be imposed 'in the most exceptional of cases' and generally speaking, a time limit should be included.


The Court of Appeal's helpful routemap for judgments in this very difficult area is welcome.  It is interesting to compare the FMPO legislation, which expressly permits the making of orders that interfere with the Article 5 and 8 rights of people who have capacity, with the situation in respect of 'vulnerable adults' who are subject to the High Court's inherent jurisdiction. In the latter case, the absence of any statutory framework means that Parliamentary consideration has not been given to the circumstances in which such interferences may be justified, and the level or nature of risk that would need to be present.  In the continuing absence of any statutory framework, the guidance in respect of FMPOs may be of some assistance by analogy.