Against her will: the practical limitations of forced marriage protection orders

The greatest obstacle to effective enforcement of forced marriages protection orders is the fear, on the part of the individuals they seek to protect, that family members would end up in prison, says James Weston

The recent case of Bedfordshire Police Constabulary v RU and FHS [2013] EWHC 230 (Fam) put the Force Marriage (Civil Protection) Act 2007 and the civil remedy it introduced - Forced Marriage Protection Orders - to their first real test. Unfortunately the case revealed a stark gap in the protection offered to those at risk and raises the question of whether the regime currently in place is really equipped to handle the complex and widespread problem of forced marriage.

Police investigations

In late 2012 FF, a 16-year-old girl, informed the police and children's services that she feared being taken to Pakistan and coerced into marriage there. She was referred to a local firm of solicitors and obtained a Forced Marriage Protection Order (FMPO) prohibiting her mother from causing or permitting her to take part in any sort of marriage, civil or religious.

On 20 May 2013 FF disclosed that a few weeks earlier she was married to a man she previously knew only by sight. Her mother and family had attended the Muslim ceremony. FF also alleged that she had been raped by her new husband. The police commenced two investigations: one regarding the sexual allegations and the other concerning the marriage. The latter enquiry led to the arrest of FF's mother and aunt under the power of arrest attached to the FMPO obtained in 2012. It was alleged that both were key players in causing and permitting FF's recent marriage.

Although she had been willing to disclose the fact of her marriage, FF was reluctant to see members of her own family go to prison and did not issue contempt of court proceedings against them. In the circumstances Bedfordshire Police, who had maintained an investigatory role, became concerned that the alleged breach of the FMPO would go unpunished. They therefore applied for FF's mother and aunt to be committed to prison.

On 26 July 2013, however, Holman J ruled that because the police had not applied for the original order they did not have standing to bring contempt proceedings. There was no precedent for it and parliament had not provided any proper statutory basis. He was not willing to endorse such a huge leap in the legal framework. He did however acknowledge that the case revealed a grave weakness in the existing forced marriage protection order machinery and he invited the relevant departments of state to consider the issue urgently.

Different context

Traditionally the courts have largely relied upon the wronged person to return matters to court in the event that an order obtained by them is breached. But FMPOs work in a very different context. The protected person, often a vulnerable child, will usually be operating amid a mix of powerful familial pressures and bonds. They will rarely want to institute committal proceedings against those closest to them. The problem that arose in the Bedfordshire case will come around again. But if neither the protected person nor the police are in a position to enforce FMPOs, who then will give them their much needed teeth?

It has long been recognised that the Attorney General can step in to bring contempt proceedings when it is assessed to be in the public interest. Whether he would consider a particular breach of a FMPO sufficiently grave and serious is unclear. It is also unclear whether he would be able to act with the required speed in cases where the alleged contemnors are on remand (as was the position in the Bedfordshire case).

The court can, of course, enforce breaches of its own motion but this is reserved for the most clear and exceptional cases. It will rarely be an appropriate way forward amid the complex social context of FMPOs.

What about the local authority? They, unlike the police, are recognised in the FMPO statutory regime as a relevant third party that does not require the court's permission to apply for a protective order in the first place. In the Bedfordshire case, however, they did not seek to issue contempt proceedings. If they had it is difficult to see how their legal position substantially differs from that of the police when it comes to enforcement. There is no precedent for them intervening even if they wanted to.

In exceptional cases it might be possible for the Official Solicitor or CAFCASS legal to step into the shoes of the protected person if they can prove a lack of capacity (for example because of the psychological pressures placed upon the victim). This, however, is a difficult and time consuming hurdle to pass. It also unclear whether a guardian (or a local authority for that matter) would consider committal proceedings in the best interests of the victim (as opposed to the public interest in ensuring court orders are obeyed).

No obvious solution

The FMPO regime of civil protection has been found wanting in this case. There is no obvious solution in place. Police forces and/or local authorities are unlikely to want to bear the costs of applying themselves for all FMPOs in the future and the Attorney General's approach to enforcement is unclear. Victims will likely need to await the criminalisation of both forced marriage itself and the breach of FMPOs proposed in the Anti-Social, Crime and Policing Bill, which has passed the committee stage in the House of Commons. While this may bring much needed teeth, there will come with it an increased risk that young people will feel deterred from making disclosures for fear of seeing their own family members sent to prison.

James Weston is a barrister at 7 Bedford Row and represented the Bedfordshire Police Constabulary in Bedfordshire Police Constabulary v RU and FHS