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Forced marriage cases

Forced marriage cases

Yesterday the Foreign and Commonwealth Office launched a new forced marriage survivor’s handbook. A specific team, the Forced Marriage Unit, was set up two years ago to deal with this issue and is reported to be dealing with 250 cases a year.

Obviously, these cases are extremely traumatic for the victims and their families. They are also challenging for lawyers and advisers, and it can be difficult to imagine what steps might be taken to resolve what looks like an impenetrable, intractable situation.

Usually the balls starts to roll when a relative or boyfriend tips off the Forced Marriage Unit. They will do a preliminary investigation to try and establish whether it looks like a genuine forced marriage situation. The unit will then contact one of the solicitors firms they know and trust. These solicitors then swoop in from nowhere with a legal aid certificate to make a wardship application. The application includes evidence in support, consisting mainly of a statement by the solicitor describing the known or suspected facts so far. The solicitor has no instructions as such other than from the Foreign and Commonwealth Office, which is not a party to any proceedings, and at this stage the victim knows nothing of the fact that they are being represented. In some cases, the ‘victim’ is pretty annoyed when they do get dragged back to the UK and I’ve seen someone instruct their own representative on return to the UK to get the wardship discharged.

The solicitor instructs a barrister to head off to the High Court Family Division at the Royal Courts of Justice and make the application before that week’s duty applications judge. The application is made ex parte – it will just be the barrister, the solicitor, the court staff and the judge who are present, no one else is allowed in.

Wardship is an ancient legal device that has been dated to pre-Norman times. Previously concerned mainly with the control and disposal of the property of a bereaved minor, it evolved in the nineteenth century to make the interests of the child the paramount concern of the court. Until the Children Act 1989 came into force, it was widely used in child care proceedings. Today it is mainly used in non-Hague Convention country child abduction and forced marriage cases.

In theory, a high court judge assumes the responsibilities of a parent, although in practise day to day care and control is delegated to someone else. However, the court must give its consent before any major decisions are taken about the child’s upbringing, particularly removal from the jurisdiction or marriage.

Assuming the judge does ward the child concerned, a number of court orders are made, essentially the same as the orders made in a child abduction case. These include a location order, which authorises the court’s enforcement officers, known by the archaic title of the Tipstaff, to locate the ward and when possible take any relevant passports into their control. This is often delegated to the police in reality, or in forced marriage cases the Forced Marriage Unit liaise with the relevant embassy or High Commission and try to perform this function. In order to actually find the child a number of disclosure orders are often made, requiring various government departments and utility companies to disclose information that might assist in locating the ward. A ‘port stop’ is also issued, which alerts the immigration authorities and hopefully prevents the child being removed from the UK and also alerts the Tipstaff if the child enters the UK.

It is only possible to ward a minor (and arguably an unmarried minor), but several High Court judges have proven willing to exercise the inherent jurisdiction of the court to make similar protective orders in cases involving adults, even though there are no mental capacity issues. Mr Justice Munby has led the way in this respect, but a sympathetic hearing can also be expected from Mr Justice Ryder and some others.

If the child can be found, the co-operation of relatives or the local authorities in the country concerned is needed. The Foreign and Commonwealth Office cannot simply abduct the child. In one case the FCO conducted a visit but reported that the relatives, living in the Frontier Provinces of Pakistan, were basically armed to the teeth. Not against the FCO specifically, just because everyone carries a Kalashnikov there.

If the child can be returned to the UK, a company called Travelcare is often used to meet and greet him or her at the airport. A hearing will quickly be arranged with the judge, who usually wants to see his or her ward, and will actually refer to the child as ‘my ward’. An appropriate social services department – usually that for the last address of the child in the UK – needs to be identified very quickly so that proper arrangements can be made for his or her interim care.

The case then either starts to morph into care proceedings and perhaps a public law case where the social services department takes the lead or some sort of reconciliation will be effected, where everyone decides the whole thing was a big mistake and the marriage was actually just a betrothal ceremony.

What happens in the longer term? I don’t know, I’m afraid, it’s not a legal problem.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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