A v SM & Anor [2012] EWHC 435 (Fam)

Case No FD11FO5022[2012] EWHC 435 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Wednesday, 25 th January 2012
Before
MR. JUSTICE BAKER(In Private)IN THE MATTER OF AN APPLICATION FOR A FORCED MARRIAGE PROTECTION ORDER UNDER PART 4A OF THE FAMILY LAW ACT 1996AND IN THE MATTER OF A,B, AND OF C,D,E,F, AND G (MINORS)
Between
AClaimantSM & AnorDefendant
B E T W E E N:
A Applicant
- and -
SM 1 st Respondent
- and -
HB 2 nd Respondent
Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737
info@beverleynunnery.com
MS. SUSAN GEORGE (instructed by Goodman Ray Solicitors) appeared on behalf of the Applicant.
MR. ISLAM (Instructed by Eton Law Solicitors) appeared on behalf of the First and Second Respondents.
J U D G M E N T
[1]This is the final hearing of an application under Part 4A of the Family Law Act 1996 for forced marriage protection orders. The applicant is a young woman, A, now aged 20, who seeks orders in respect of herself and her six younger siblings: B, a girl born 9th December 1993, and therefore now aged just 18, C, born 6th December 1995, and therefore now aged 16, D, born 30th October 1996, therefore now aged 15, E, a girl, born 28th August 2001, and therefore now aged 10, a further boy called F, born 22nd October 2002 and therefore now aged 9, and another boy, G, born 25th December 2005, and therefore now aged 6.[2]The first and second respondents to the application are the parents of the seven children, the father SM, and the mother, HB. The third respondent is the grandmother of the seven children. It was indicated by the applicant's counsel at the outset of the hearing before me that no order was sought against the third respondent, and accordingly I indicated that I would discharge her as a party, although in the event she remained present during the hearing.[3]It is the applicant's case that the mother and father intend to force her to marry. She asserts that during a family trip to Bangladesh in August of last year she had cause to believe that they were imminently planning to force her into marriage, but she was able to escape with the assistance of the Forced Marriage Unit at the British High Commission. The applicant further asserts, however, that following her escape her parents successfully forced her sister, B, to go through a ceremony of marriage against her will. The applicant's allegation is now supported by B who, following the family's return to England, managed to get away from the family home in circumstances I shall describe below. As a result of these event, the applicant asserts there is a risk that, unless prevented by a court order, her parents will in due course force her younger siblings to marry against their will.[4]As a result of these allegations, the local authority for the area in which the family lives in England, Bedfordshire County Council, has started an assessment under s.47 of the Children Act 1989 and the applicant proposes that, in the event that I make the findings and orders she seeks, a copy of my judgment should be disclosed to the local authority. The father and mother emphatically deny these allegations. They deny that they have ever forced, or attempted to force any of their children to marry. They accept that B went through a ceremony of marriage in Bangladesh in September 2011, but assert that she did so voluntarily. It was, they say, a love match. They assert that the applicant has fabricated the allegations because of her antagonistic feelings towards them derived from previous difficulties between the applicant and her parents, and that she has persuaded B to support her false allegations.[5]At the outset of the hearing the parties indicated that they would agree to a continuation of interim forced marriage protection orders, made at an earlier stage in these proceedings, to last until the children reached the age of 18. But it was made clear on the respondents' behalf that their agreement to this clause would be on the basis that no findings were made in respect of the applicant's allegations. I indicated, however, that I did not consider this to be an appropriate way forward. In my judgment the allegations were sufficiently serious for it to be necessary for the court to conduct a hearing to determine whether or not they were true. Accordingly, a fully contested hearing has taken place at which the applicant, B, and their parents have all given oral evidence. At the conclusion of their evidence, and having heard submissions from counsel, I reserved judgment until today. BACKGROUND HISTORY[6]The parents are Muslims and come from Bangladesh, but have lived here for most of their lives. I have set out the dates of birth of their children above. The parents assert that the applicant was a difficult teenager, who displayed aggressive behaviour towards her siblings and the parents and caused damage to property leading to the police being called on at least one occasion. It seems that the applicant also got into trouble with the police in other respects, and received cautions for shoplifting and assault occasioning actual bodily harm. The applicant accepts that there were difficulties between her and her parents, but asserts that she was the victim of domestic violence inflicted by them. She asserts that she suffered years of domestic violence at their hands, culminating in an incident in October 2008 when her father struck her on the head with a plank of wood. Whatever the circumstances of this incident it is agreed that the applicant left the property and thereafter stayed away from the family home for some time. She is still living away and currently studying religious studies and sociology at university. Subsequently, however, a reconciliation of sorts was achieved, although as I have said, she has not returned to live at the family home.[7]In the summer of 2011 the parents made arrangements for the family to go on holiday to Bangladesh in August and September, and invited the applicant to accompany them. After some discussion and negotiations the applicant agreed but only on certain terms, namely:(i) that she had possession of her passport throughout the trip,(ii) that she had possession of a return ticket throughout the trip,(iii) that an internet connection was set up at the accommodation where she would be staying; and(iv) that her parents paid her a sum equivalent to one week's wages to ensure that she had sufficient money in Bangladesh. The parents agreed to these conditions and thus the whole family departed for Bangladesh on 15th August.[8]The events of the next few weeks are a matter of significant dispute between the witnesses and I shall consider the evidence about those incidents below. The agreed facts are as follows. A few days after arriving in Bangladesh, the applicant contacted the British High Commission claiming that she was in danger of being forced into marriage, and with the assistance of members of staff she returned to England on 21st August. About a fortnight later, in early September, B met a young man, R, who is the son of a religious leader in the village where the family was staying. On 23rd September, having known R for less than three weeks, B went through a ceremony of marriage with him attended by other family members. A few days later B spoke to the applicant over the telephone. The contents of the telephone call are a matter of some uncertainty, but it is the applicant's case that B told her that she was going to get married and did not wish to do so.[9]As a result of this call the applicant became concerned about the dangers of B being forced into marriage. On 29th September she therefore made an ex parte application to the High Court under Part 4A of the 1996 Act. At an emergency hearing on that day Bodey J made an[10]On 4th October the three respondents were personally served with the orders in Bangladesh. On 6th October Coleridge J extended the order of 29th September, and listed the matter for a further hearing on 18th October. On 16th October, the parents and the six children, including B, returned to Heathrow where their passports were seized. On 18th October the parents attended at the High Court with B at the next hearing, which was listed before Moor J. As I understand it, B did not come into the court room on that occasion. The parents denied the applicant's allegations and told the judge that they had not forced B into any marriage. It seems that in fact they did not tell Moor J that B was married at all. The learned judge extended the forced marriage protection orders and gave directions for a final hearing to be listed on 1st December, including directions for the filing of evidence.[11]On 18th November the parents and B filed statements. In their joint statement the parents repeated their denial of the applicant's allegations but made a reference to B's marriage stating, inter alia:
"We maintain that there was no talk of any marriage being taken place between ourselves and our children's." [sic] In her statement B gave the same account as her parents, that they had gone on a family holiday to Bangladesh, and that: "
There was no mention of myself or my sisters getting married". On 20th November, two days later, however, B was witnessed by a passer by being dragged into a car by the mother, the car being driven by the father. The car was subsequently stopped by the police and B informed the police that she was being taken by her parents to an unknown address. With the assistance of the police B thereupon left the family home and moved to a confidential address. In subsequent conversations with various people, including the applicant, B disclosed the fact that she had, in fact, been married in Bangladesh, and furthermore asserted that she had been forced to go through the marriage ceremony by her parents. Thereafter, B has lived at a secret location. She has left the school that she was attending, where she was studying A levels, having previously obtained 12 GCSEs. She tells the court that she wishes to return to college in September.[12]On 30th November the parents applied for an adjournment of the final hearing on the basis that they had only just instructed solicitors, and were having difficulties obtaining public funding. Bodey J duly adjourned the case to 23rd January. On 18th January the father filed a further statement in effect reiterating his case in greater detail, maintaining his denial of the applicant's allegations. In para. 6 of his statement, however, he stated inter alia:
"I confirm that B, our second daughter, did in fact get married on 23rd September. However, the marriage was not forced in any way as B met her future husband and liked him and got married freely and willingly. I further confirm that when I appeared at court on 18th October I did not disclose this fact to the court simply because B did not want me to tell the court about her marriage as she wanted to return back to her husband in Bangladesh as soon as possible. She felt that if this fact were disclosed it would delay matters. Furthermore, I can also confirm that B, at paragraph 3 of her witness statement denies, that there was any marriage in order to be able to return back to Bangladesh as soon as possible, where she was happily married and living with her husband prior to returning to the UK. I have subsequently realised that it was a mistake on my part to mislead the court, and I now wish to set the record straight and seek the court's clemency in this regard."
[13]He insisted, however, that B's marriage had been voluntary and not forced, and drew attention to records of telephone calls passing between the landline at his home in Bedfordshire and R's house in Bangladesh since the family returned to England which, he said, was evidence that B had continued to be in communication with her husband following her return to this country. On the same date, however, i.e. 18th January, a further statement was filed signed by B, on this occasion on behalf of the applicant, in which she asserted inter alia that:(i) she had been pressurised by the respondents, in particular the mother, to marry R;(ii) that she had gone through a religious ceremony on 23rd September which she had initially believed to be a betrothal ceremony, but she now realised was a marriage(iii) that subsequent to the ceremony she had had sexual intercourse with R against her will;(iv) that when she attended court on 18th November her parents told her to deny the wedding altogether, and warned her that if she did not support them the younger children could be taken into care by social services; and(v) that she had signed the statement prepared on her behalf and produced by the father without reading its contents. She further gave details of the incident on 20th November in which she said she had been dragged into a car by the mother.[14]B's allegations were comprehensively denied by the father in a third statement prepared and signed by him on 20th January. THE LAW.[15]Section 63A of the Family Law Act 1996 (as amended) reads as follows:
"(1) The court may make an order for purposes of protecting: (a) a person from being forced into a marriage or from any attempt to be forced into a marriage, or (b) a person has been forced into a marriage. (2) In deciding whether to exercise its powers under this section and, if so, in what manner the court must have regard to all the circumstances, including the need to secure the health, safety and wellbeing of the person to be protected. (3) In ascertaining that person's wellbeing, the court must in particular have such regard to the person's wishes and feelings, so far as they are reasonably ascertainable, and the court considers appropriate in the light of a person's age and understanding. (4) For the purposes of this Part a person (“A”) is forced into a marriage if another person (“B”) forces A to enter into a marriage (whether with B or another person) without A's free and full consent. (5) For the purposes of subsection (4), it does not matter whether the conduct of B which forces A to enter into a marriage is directed against A, B, or another person. (6) In this Part, 'force' includes coerced by threats or other psychological means (and related expressions are to be read accordingly) and ‘forced marriage protection order’ means an order under this section."
[16]In this application, the burden of proof lies on the applicant, and the standard of proof is the simple balance of probabilities. One other point of law which I must follow concerns the approach to be taken by the court when a witness is found to have told lies. When considering a lie told by a witness the court must, under the principle of R v Lucas[1981] QB 720 recall that a witness may lie for many reasons, for example, shame, panic, duress or distress, and the fact that a witness has lied in respect of one matter does not mean that he or she has lied in respect of everything. THE ISSUES.[17]The key issues I have to determine, put simply, are as follows.(1) Did the respondents intend that the applicant should be forced into a marriage, and/or attempt to force her to enter into the marriage?(2) Did B marry R without her free and full consent as a result of force applied by her father and/or mother in the sense explained in s.63A of the Act? THE EVIDENCE.[18]The applicant stated in evidence that she had been pressurised to go on the trip to Bangladesh by her parents, although in her statement at the outset of the proceedings she used the word "invited" rather than "pressurised". As to the conditions which she laid down before going on the trip, she said that her father had handed over her passport, and money at the airport, but that the ticket given to her was an open-ended ticket with no return date specified. She stated that her parent told her that the return flight had to be booked in Bangladesh. But when they subsequently visited the airline office in Bangladesh, they were told that no flight was available until the end of September. The applicant asserts that, once in Bangladesh, she was told by her mother that she would be getting married and kept there for ever. The applicant then locked herself in her room, although she was able to access the internet which had been set up for her at her request under the conditions agreed prior to the trip. Through that means she was able to contact her key worker in this country and, via her, the British High Commission. The applicant's case is that, once back in this country, she spoke to B over the telephone and, as a result of this conversation, she became further concerned about the risk of forced marriage.[19]On behalf of the parents, Mr. Islam points out an inconsistency between the applicant's written and oral evidence as to the details of this telephone conversation. In her witness statement, the applicant said that she asked B if she was going to get married, to which B had responded by crying and saying that she was going to get married to the son of the religious leader. There is no reference in the statement to B alleging, during the telephone cal, that she was being forced into a marriage, and later in the statement the applicant asserted that she "believed" that B was being forced into a marriage as a result of the call. In her oral evidence, however, the applicant stated that during the conversation she had asked B if she wanted to get married, to which B had whispered in reply: "No".[20]In her oral evidence, B gave a detailed account of what she said happened in Bangladesh. She insisted that her second statement and her oral evidence were true, and said that her first statement had been prepared by or at the direction of her father, who had brought it back from the solicitor previously instructed for her to sign, which she had done without reading it. B described how she had been introduced to R shortly before the ceremony by her parents. She emphatically rejected the suggestion put by Mr. Islam that she had voluntarily formed an attachment to R and married him out of affection. She described him as a nice person but said she did not want to marry him. She said that she had got married because she kept having arguments with her mother but could not take any more so just gave in. She said that she was told by her parents that if she did not agree to getting married she would not be able to return to the UK. She said that her younger siblings had joined in pressurising her about the marriage. She had been unable to contact the applicant because the internet connection had only been arranged for one month, which had expired before the suggestion of the marriage was made. She said that she had not appreciated that the ceremony on 23rd September was a wedding because it was conducted in Arabic not Bengali. She stated that the plan had been for her to return to the UK and then subsequently arrange for her husband to join her after she was 18. She described her husband as a very controlling person who insisted on sexual intercourse against her wishes, and spoke of how, after she returned to England, he would regularly telephone her to check what she was doing. Initially, she had agreed not to tell the court on 18th November that she was married because she was told that, if she did tell the truth, her brothers and sisters would be taken into care.[21]In his evidence, the father insisted that there had been no attempt to force the applicant into marriage and that B's marriage had been entirely voluntary. He repeated his apology for initially failing to tell the court that B was married and for stating in his first statement that there had been no discussion about marriage. He stated that the reason why he had misled the court was that, after returning to this country, B wanted to go back to her husband in Bangladesh, and it was feared that she would be prevented from doing so if they told the court that she had been married. He said that B had read her first statement in front of him for four or five minutes before signing it.[22]In her evidence, the mother gave the same account as the father. She, too, apologised for lying to the court in the earlier statement. She said that she was aware of the English law concerning forced marriage having lived in this country since she was eight. She insisted that B's marriage had not been forced, describing B as a very happy person at the time of the wedding. When I asked her if she had concerns about B marrying someone whom she had only known for a few days, she said it was up to her. She rejected the suggestion that she had forced B into marriage, and denied dragging B into a car on 20th November, although she accepted that she had held her during that incident.[23]In closing submissions on behalf of the parents, Mr. Islam submitted that they had done nothing wrong except tell the court on 18th November that there was no marriage. He pointed to inconsistencies in the applicant's evidence to which I have referred, and submitted that the applicant had invented her account of an attempted forcing her into marriage in order to come back to the UK when she wanted. He reminded the court that it was common in Bengali culture for people to get married after knowing each other for a comparatively short period of time. FINDINGS[24]I accept the evidence of the applicant and B, and reject the evidence of the mother and father. I find that both the applicant and B were truthful witnesses. I accept that there were some inconsistencies between the applicant's written evidence and her oral account, in particular as to whether or not B told her over the telephone from Bangladesh that she did not want to get married. But I do not find those inconsistencies to be sufficient to cause me to question the applicant's credibility. I find B, in particular, to be a compelling witness, whose oral evidence was undoubtedly reliable. I accept her account of how she was forced into marriage, and I reject her explanation that it was a love match. I also accept her account of how and why she signed her first statement.[25]I reject the parents' explanation for the blatant lie told at court in their first statement, and their failure to tell Moor J on 18th November that B was married. I do not accept that the reason for the lie was because B wanted to return to her husband. On the contrary, I find that she did not want to go back to Bangladesh, and only agreed to keep quiet because she was fearful of her younger siblings being taken into care.[26]Although the applicant has a strong and independent personality, I also accept her evidence that the parents were attempted, admittedly not very successfully, to force her into marriage. I find that, when she contacted the British High Commission in Bangladesh in August, she was genuinely fearful that she would be forced into marriage. The subsequent events concerning B confirm that her fears were justified. In short, this is an example of exactly the type of conduct which the forced marriage protection order was created to prevent. Forced marriage is a serious problem in certain communities in this country, and where it is proved that young people have been forced into marriage, or at risk of being so forced, the court will act to protect them.[27]I find that B has been forced into marriage, that the parents intended to force the applicant into marriage, and that there is a very strong likelihood that, unless prevented from doing so, they will force their younger children into marriage as well. I am deeply concerned by the intransigent and untruthful attitude adopted by these parents and the implications of that attitude for the welfare of their children. I therefore make the following orders:(1) I renew the provisions of the earlier forced marriage protection order set out in paras. 2, 3, 5, 6, 8, 11, 12 and 13 of the forced marriage order made by Moor J on 18th October. The forced marriage protection orders will remain in force without limit of time.(2) I direct that the five younger children shall remain wards of court until further order. B having attained the age of 18 is not subject to the inherent jurisdiction of the court in that respect.(3) Having found that there are reasonable grounds for believing that the young children are at risk of significant harm I direct that the local authority, Bedfordshire County Council, should prepare a report pursuant to s.37 of the Children Act to be filed within three weeks, with the matter to be relisted for review before me on a date to be fixed thereafter.(4) I order a transcript of this judgment to be prepared at public expense and expedited.(5) I direct that all passports and travel documents in respect of the parents and the children should be retained by the Tipstaff.(6) I join the five younger children as parties to the proceedings and refer the case urgently to CAFCASS Legal to arrange for the appointment of a guardian and legal representation.[28]In view of my concerns about the risks to the younger children, I direct that the matter be listed before me urgently, this coming Friday, that is to say 27th January, for consideration as to whether or not I should make interim care orders in respect of the five younger children, and I direct that Bedfordshire County Council and CAFCASS Legal should attend that hearing.

order

(i) giving permission to the applicant to apply for forced marriage protection orders in respect of her six siblings,(ii) making a forced marriage protection order in respect of the applicant and the six children,(iii) making a non-molestation order preventing the parents molesting or threatening violence towards the applicant or the six children,(iv) directing the parents to produce the six children to the British High Commission in Bangladesh and disclose the children's whereabouts,(v) directing them to facilitate the return of the children to the jurisdiction within seven days of service of the order; and(vi) making all six children wards of court. He further made passport orders in respect of the passports of adults and children, and gave other ancillary directions, including listing the matter for a further hearing on 6th October.