K (Forced Marriage: Passport Order) (Rev 2) [2020] EWCA Civ 190

“10. The protected party’s (K’s) passport and other travel documentation shall be held until further order by the West Midlands Police. 11. The Respondents [named] are forbidden from applying for any new passport or any other travel documentation for K from the UK Passport Office or from any other foreign passport agency.”

“The Right to Choose: multi-agency statutory guidance for dealing with forced marriage”

“…nevertheless, there must be some distinction between the scope of the State’s duty not to take life or ill-treat people in a way which falls foul of Article 3, and its duty to protect people from the harm which others may do to them. In the one case, there is an absolute duty not to do it. In the other, there is a duty to do what is reasonable in all the circumstances to protect people from a real and immediate risk of harm. Both duties may be described as absolute but their content is different. So once again it may be a false dichotomy between the absolute negative duty and a qualified positive one…”

“41…Whilst there can be no derogation from N’s Article 3 rights, the interference with her Article 8 rights, and those of her siblings and family, must be limited to that which is necessary to protect her Article 3 rights. Of course, though this is relatively easy to state, it is difficult to apply on the facts of this case, and I suspect, in FGMPO applications generally.”

“31. Before turning to the parties' submissions, I make the following observations. I would agree that, as referred to by the judge in this case, the rights engaged by both Article 3 and Article 8 of the European Convention on Human Rights will clearly be relevant to the exercise by the court of its powers to make an FGMPO. I would also agree that, when deciding how to exercise its powers, the court must balance a number of factors. The court will have to consider the degree of the risk of FGM (which, I would suggest, needs to be at least a real risk); the quality of available protective factors (which could include a broad range of matters including the court's assessment of the parents); and the nature and extent of the interference with family life which any proposed order would cause. 32. The need for specific analysis balancing these and other relevant factors extends to any additional prohibitions or other terms the judge may be considering including in the FGMPO. This is because each term included within the FGMPO must be separately justified. In this exercise, although the nature of the harm would, self-evidently, be a breach of Article 3, it is the court's assessment of the degree or level of the risk which is central to the issue of proportionality and to the question of whether a less intrusive measure, which nevertheless does not unacceptably compromise the objective of protecting the child, might be the proportionate answer. 33. This reflects (and, in part, adopts) what Lord Reed JSC said, when dealing with proportionality, albeit in a very different context, in Bank Mellat v HM Treasury (No 2) [2014] AC 700. I propose to quote only the last two elements he identified when setting out that its "attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit" (paragraph 74 of his judgment on the substantive appeal): “… it is necessary to determine … (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter … I have formulated the fourth criterion in greater detail than Lord Sumption JSC, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”.” “… it is necessary to determine … (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter … I have formulated the fourth criterion in greater detail than Lord Sumption JSC, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”.”

“…The first is the nature of the relief given by the Act. It is protective - quasi injunctive – and does not depend upon a complex factual matrix. The person to be protected has for most of the proceedings not sought actively to disturb the order. If, therefore, the view is taken that there is a proper basis for the court’s exercise of its jurisdiction under the Act an order under the Act can properly be made ex parte. … 93. This leaves the wider question as to whether or not special advocates are needed to resolve the issues of fact which may arise on any application to discharge.”

“• prohibiting the removal of the person to be protected [“PTBP”] from the jurisdiction; • prohibiting the named respondent from applying for a passport or other travel documents for the PTBP; • for surrender of passports and order for the Identity and Passport Service to cancel any passport issued and not to issue any further or new passport without leave of the court.”

“The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly.”

“Had I considered it necessary to do so at the time, and in accordance with K’s welfare, I would have explicitly stated that I considered it more likely than not that she was the victim of coercion and threats, the objective of which was to ensure her cooperation to marry/punish her for refusing to do so.”