B, Re
[2024] EWFC 332 (B)
AG (Welfare: FMPO), Re
15 March 2024
[2024] EWCOP 18
High Court
A young woman with a learning disability had a potentially pressured marriage. The court couldn't prove it was forced, but kept a protective order in place while investigating further concerns about her family's influence. The court approved her current living situation and limited contact with her family to give her more independence.
Key Facts
- •AG, a 24-year-old woman with a mild learning disability, was subject to two applications: one under the Forced Marriage (Civil Protection) Act 2007 (FMCPA) and another under the Mental Capacity Act 2005 (MCA).
- •AG was previously married under Sharia law in Pakistan in 2019, a marriage whose circumstances are disputed.
- •Concerns arose regarding AG's vulnerability to pressure from her parents, leading to self-harm incidents and a need for protective measures.
- •AG currently resides in a shared lives placement (SLP) and has capacity to make decisions about residence and contact but lacks capacity in relation to care and support and finances.
- •The applications involved determining the need for a Forced Marriage Protection Order (FMPO), approving AG's care plan, and authorizing potential deprivation of liberty.
- •The court considered evidence from social workers, nurses, AG's parents, and AG herself, alongside expert reports on AG's capacity.
Legal Principles
Section 16 MCA empowers the court to make welfare orders for incapacitated individuals, guided by their best interests (s. 4 MCA).
Mental Capacity Act 2005
Deprivation of liberty under Article 5 ECHR requires objective confinement, lack of valid consent, and state responsibility. The 'acid test' is whether the person is under continuous supervision and control and not free to leave.
P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council v another [2014] UKSC 19
FMPO applications involve a four-stage process: assessing underlying facts, determining the need for protection, assessing risks and protective factors, and balancing protection with respect for family life (Article 8). Orders should be bespoke and proportionate.
Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190
The inherent jurisdiction allows the court to protect adults whose decision-making is compromised, facilitating unencumbered decision-making free from pressure or restraint.
DL v A Local Authority & others [2012] EWCA Civ 253; Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942 (Fam)
Outcomes
The court found insufficient evidence to conclude AG's 2019 marriage was forced, primarily due to the local authority's inadequate investigation.
Discrepancies in accounts, lack of thorough analysis by the local authority, and AG's own lack of claim of forced marriage contributed to this decision.
An interim FMPO was extended for 6 months, pending a thorough risk assessment.
Ongoing concerns about parental coercion and a lack of clarity surrounding a potential future marriage in Pakistan necessitate continued protection, even though AG does not wish for the FMPO to continue.
The court approved AG's care plan and rejected the local authority's claim that the SLP constitutes a deprivation of liberty.
The court found the supervision in the SLP falls short of continuous supervision and control; AG has capacity to consent to living there and the restrictions imposed.
The court invoked the inherent jurisdiction to limit contact between AG and her parents for six months.
This time-limited order aims to protect AG's autonomy and capacity to make decisions about contact, mitigating the influence of her parents.