England and Wales High Court (Family Division) Decisions

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Cite as: [2014] 1 FLR 286, [2014] 1 FAM 69, [2014] 2 WLR 780, [2014] 1 Fam 69, [2014] Fam 69, [2014] 1 All ER 1068, [2013] Fam Law 1526, [2013] EWHC 2350 (Fam), [2013] WLR(D) 319, [2014] 1 FCR 383

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		Neutral Citation Number: [2013] EWHC 2350 (Fam)
		No. LU13C03465

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

26th July 2013

B e f o r e :

MR JUSTICE HOLMAN
____________________

	THE BEDFORDSHIRE POLICE CONSTABULARY	Applicants
	And
	R U	First Respondent
	And
	F H S	Second Respondent

____________________

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____________________

MR JAMES WESTON appeared on behalf of Bedfordshire Police
MS NEELIM SULTAN appeared on behalf of the First Respondent, mother
MISS SYLVIA ALLEN appeared on behalf of the Second Respondent, aunt
MR ANDREW SHAW appeared on behalf of the Luton Borough Council as "interested party"
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE HOLMAN:

The issue

This is a relatively short judgment on a very important point. The point is, can a police force apply for a person to be committed to prison for contempt of court for breach of a forced marriage protection order (FMPO) when the police themselves were not the applicants who obtained the order? It is an issue as to what lawyers call "standing" but is, in my view, one of some constitutional importance. The reason why the point is overall of great importance is that the facts of this case reveal, or illustrate, serious weakness in the scheme of the forced marriage protection provisions which were inserted as Part 4A into the Family Law Act 1996 by the Forced Marriage (Civil Protection) Act 2007 and which came into force in November 2008.

The facts and context

For the purposes of this judgment I can summarise the essential facts in an abbreviated way. FF was born in October 1996. At all times material to this judgment she was, and still is, aged 16. She is a child of a Muslim family of Pakistani descent who live in Luton and are clearly part of the Muslim Pakistani community there. During November 2012 FF contacted the police in Luton and told them that her mother had assaulted her and that she was afraid her mother would take her to Pakistan and force her into marriage there. She was directed to a local firm of solicitors, who made a without notice application on her behalf on 27 November 2012 for an FMPO, which was granted. It is quite clear that FF herself was in the role of applicant, and there has never been any suggestion that she lacked sufficient capacity to instruct her own solicitor and make her own application.

A return date was fixed for 13 December 2012, when the same solicitor appeared again on behalf of FF, and FF's mother (whom I will call "the mother") was both personally present and legally represented. The application came before His Honour Judge Sir Gavyn Arthur. It is relevant to mention that as the Luton County Court is one of the designated specialist county courts for the making of FMPOs, and His Honour Judge Sir Gavyn Arthur is the designated family judge of that court, he must have great experience of this vital but sensitive field. He made a further order in the prescribed form to expire on FF's 21^st birthday or earlier further order. He was later to say at a hearing on 1 March 2013 that, "It was, in fact, the standard FMPO, with various associated clauses attached to it."

Paragraph 1 forbad the mother "... to take any steps to cause or permit FF to undergo any ceremony, or purported ceremony, or betrothal, or marriage, whether civil or religious, in the UK or elsewhere outside the UK until further notice." Paragraph 2 forbad the mother "... to aid, abet, counsel, encourage or assist any other person to take any steps to force or attempt to force or to cause or otherwise permit FF to enter into a marriage ...". Pausing there, paragraph 2 includes references to "force", but paragraph 1 does not. In other words, paragraph 1 was absolute. The mother was forbidden to cause or permit FF to undergo any marriage at all, whether forced or not. Paragraph 5 of the order forbad the mother from removing FF from England and Wales. A power of arrest was specifically attached to all the injunctive paragraphs of the order, including paragraphs 1 and 2.

On 1 March 2013 FF and her mother both attended in person before His Honour Judge Sir Gavyn Arthur and asked him to discharge the FMPO so that FF could travel to Pakistan. They both gave oral evidence. Their story was that the mother's grandmother was seriously ill in Pakistan. With characteristic shrewdness, the judge said in his judgment "... the court, I regret to say, is not satisfied that they are telling the full story. In particular, the evidence about the grandmother's illness did not satisfy the court ...". He declined to discharge any part of the FMPO. He concluded his judgment by saying "I am concerned she [viz FF] has brought this application under considerable parental oppression. In fact, I am wholly satisfied that is why it has happened."

On 26 April 2013 a Muslim ceremony of marriage took place at the family home in Luton between FF and a man whom she knew only by sight, who is, I understand, related to her. I say at once that in the eyes of English law that marriage is a total non-marriage. It does not even purport to be a marriage under the provisions of the Marriage Acts. It has no legal force whatsoever. But within the Muslim community it may be of huge significance and may, indeed, make it very difficult for FF ever to marry again, at any rate within her own community.

There was subsequent sexual activity between the groom and FF. FF has since alleged that he raped her and the police are currently investigating that very grave alleged crime. There was a very large and very public wedding reception at a hotel in Luton on 12 May 2013, apparently attended by several hundred guests.

On 20 May 2013 FF informed the local authority, and the police, of the above events and made allegations in relation to the groom.

Arising out of these events, the police, on 22 May 2013, arrested the mother in exercise of the power of arrest that had been attached to the FMPO. On the same day they also arrested a paternal aunt of FF, whom I will call "the aunt". The aunt had not been named in the FMPO and was not at that stage a party at all to the FMPO proceedings; but she was arrested on the basis that she had been well aware of the existence and terms of the FMPO and had been involved in some of the organisation of the wedding. Therefore, she was within the scope of the power of arrest which was expressly stated to "also apply to any third party who frustrates the terms of the order or otherwise acts in contempt of court in relation to this order, even where they are not a respondent to the original proceedings."

The mother and the aunt were, correctly, brought as soon as possible before a circuit judge (not Sir Gavyn Arthur on this occasion) at Luton County Court on 22 May 2013. The judge remanded them in custody and fixed a further hearing for 28 May 2013.

On 28 May the judge was again His Honour Judge Sir Gavyn Arthur. His detailed order recites that he heard legal representatives for the mother, the aunt, the Bedfordshire Constabulary and the Luton Borough Council, who had applied for an interim care order in relation to FF on 23 May 2013. The judge made a series of orders as to evidence, discovery and other matters. Paragraph 1 of the order provided that "The Bedfordshire Constabulary are made interveners in the proceedings with the consent of all parties". I stress the word "interveners", not applicants. I understand that was done at that stage because much discovery was sought from the police. The judge fixed a further hearing for 31 May 2013 and again remanded the mother and the aunt in custody.

At the hearing on 31 May, the judge, again His Honour Judge Sir Gavyn Arthur, transferred "this matter" to the High Court and fixed a hearing here in London for the following Tuesday, 4 June 2013. He again remanded the mother and aunt in custody.

Paragraph 1 of the order made on 31 May 2013 provides as follows,

"By consent this matter is to be transferred to the High Court forthwith on the basis of the proceedings being exceptionally complex ... The complexity arises out of possible legislative gaps between the Family Law Act and Contempt of Court Act, whereby certain important matters appear to be left implicit rather than explicit. In particular, there is a lack of explicit guidance, either in authority or legislation, as to:

(a) Who is the applicant in these proceedings and who may be an applicant.

(b) How a person not party to the order becomes a respondent or interested party.

(c) ... [not relevant to this judgment]."

The order was entitled, "In the matter of the contempt of court proceedings concerning [the mother] and [the aunt]", so it was tolerably clear that the "matter" was some as yet unissued contempt of court proceedings.

The hearing on 4 June 2013 came before Mrs. Justice Parker. The formal order made that day is entitled, "Bedfordshire Police - applicant, [the mother] - first respondent, and [the aunt] - second respondent". It recites that the court heard counsel for the applicant [viz therefore Bedfordshire Police], the mother and the aunt, and for Luton Borough Council "who attended as an interested party". A large number of topics were discussed and ruled upon at the hearing with regard to evidence and discovery and other case management matters. Some consideration was given to whether FF herself should give, or be available to give, oral evidence. The judge released the mother and the aunt on conditional bail. One recital to the order provides that, "AND UPON the court confirming that the Bedfordshire Police is the applicant in this matter ...". Paragraph 1 of the operative part of the order provides that, "The Bedfordshire Police is the applicant in these proceedings."

I have been told by those who were actually present at that hearing that very little was said to Mrs. Justice Parker on the subject of the police being the applicants, and she was not invited to give, and did not give, any considered ruling or judgment on the point after hearing any submissions on the point. She did give a judgment at the end of the hearing, of which I have an informal note, although not an official approved transcript. It does not address the role of the police as applicants. It does refer to the order made on 31 March 2013 and recites, referring to that order, that, "An apparent gap has been pointed out between the Family Law Act 1996 and the Contempt of Court Act as regards who is a party to these proceedings ... ."

In my view, paragraph 1 of the case management order of 4 June 2013, when read with the note of the judgment that day, does not amount to, nor purport to amount to, a considered ruling on the issue identified by His Honour Judge Sir Gavyn Arthur of "who may be an applicant" in proceedings of this kind. It was no more than a recording that the Bedfordshire Police had by then cast themselves in the role of applicants, as indeed they had. It left open to the present substantive hearing the issue of whether the police could actually pursue an application of this kind at a substantive hearing.

On 14 June 2013 the Bedfordshire Police issued in the Principal Registry of the Family Division formal applications for committal of the mother and the aunt to prison for contempt of court, with attached "Particulars of contempt of court".

FF herself has been interviewed several times about all these events. In very abbreviated summary, her broad account is that she was not forced into the marriage but married voluntarily, willingly and gladly. She also says, in effect, that she herself did not understand that the FMPO prevented a marriage which was a willing one and not a forced one. She has also made statements to the police about the sexual activities subsequent to the ceremony, but these have been redacted as that matter is still under investigation by the police and I do not personally know what she has said.

The essential position of the mother is that the marriage was not a forced one and that she, too, did not understand that the FMPO prevented a marriage which was not forced. The aunt raises other defences, including her degree of notice of the FMPO and her degree of involvement in the wedding other than as a guest at it. The essential position of the police is that paragraph 1 of the FMPO was absolute and that the mother and, they say, the aunt, are in contempt whether the marriage was forced or not.

The standing of the police as applicants

Section 63C of the Family Law Act 1996, as inserted by the Forced Marriage (Civil Protection) Act 2007, provides as follows,

"(1) The court may make a forced marriage protection Order -

(a) on an application being made to it; or

(b) ...

(2) An application may be made by -

(a) the person who is to be protected by the order; or

(b) a relevant third party.

(3) An application may be made by any other person with the leave of

the court."

Section 63C(4) prescribes the circumstances to which the court must have regard in deciding whether to grant leave. Section 63C(7) defines "relevant third party" as "a person specified, or falling within the description of persons specified, by order of the Lord Chancellor". The Lord Chancellor has so far made one such order, namely The Family Law Act 1996 (Forced Marriage) (Relevant Third Party) Order 2009 SI 2009, No. 2023. The effect is to specify a local authority as a relevant third party for the purposes of section 63C(2). He has not specified the police or a police force as a relevant third party.

The effect of the above is that local authorities, such as the Luton Borough Council, can apply for a force marriage protection order under the Act as a matter of right. Police forces can only do so if they first obtain the leave of the court under section 63C(3) on a case specific basis. I understand that police forces do on occasions apply for leave to make applications; but on this occasion the Bedfordshire Police, although well aware of this case (for it was they who referred FF to her own solicitor), did not do so. They had no involvement in the course of the proceedings at all, until a police officer, or officers, arrested the mother and the aunt in exercise of the attached power of arrest. At that stage the officer(s) were acting under section 63I(2) of the Family Law Act 1996, which provides that,

"A constable may arrest without warrant a person whom the constable has reasonable cause for suspecting to be in breach of [a provision of an FMPO] or otherwise in contempt of court in relation to the order."

The submissions of Mr Weston on behalf of the police

By his very lucid "Further skeleton argument on behalf of the applicant", which was prepared overnight and dated 25 July 2013, and by his oral submissions yesterday of the utmost cogency, Mr James Weston argues on behalf of the police that they can be, and are, a proper applicant on an application to commit for contempt of court in these circumstances, even though they were not the applicants who obtained the order and had had no prior direct involvement in the proceedings.

Mr Weston acknowledges that there is no statutory provision in the Family Law Act 1996, or elsewhere, which expressly provides for the police to make an application of this kind or expressly empowers them to do so. He acknowledges that there is no authority that he has been able to find for the police to apply for committal for contempt of court in civil proceedings in which they were not the party or body who obtained the order said to be breached. He acknowledges the force of the words of Megarry VC in Clarke v Chadburn [1985] 1 WLR 78 at 82, to which I refer below, but Mr Weston says that there is always a first time for anything and that the FMPO provisions of the Family Law Act 1996 are relatively new legislation, only in force since November 2008 (less than five years). He submits that the statutory power of arrest provisions and machinery quoted above indicate that Parliament intended that the police may have a role when a person is, "in breach ... or otherwise in contempt of court in relation to the order". He submits that there is no reason why that role should not extend to formally applying for, and advancing the case in support of, committal for contempt, and, he says, very good reason why the police should be able to do so. He stresses, rightly, that it is of the essence of this area of the law that although vulnerable young people may apply for and obtain an FMPO, they may then be placed under very great family pressure not to seek to enforce it. In this very case, FF has made clear that she does not want to enforce it, first, because she claims that the marriage was not forced and that her mother and aunt have done no wrong; second, because, as reported in paragraph 20 of a witness statement by a social worker, Danielle Davies dated 24 May 2013, and now at bundle, section 33, page 145, "... she was clear that she did not want her parents to get into trouble". It is precisely for that reason, submits Mr Weston, that the police, in the wider public interest, must be able to enforce forced marriage protection orders and take action to commit for breaches in, as the police say, so flagrant a case as this one.

Mr Weston stresses that the police inevitably have an investigatory role. They are likely to become involved, as they did in this case, by executing the power of arrest. They will often, as in this case, have been involved at a much earlier stage, even before the forced marriage protection order was first made. They have dedicated local forced marriage and honour based crime units. They are particularly attuned to the problems in their own local area and more sensitive to the public interest in that area than, for instance, the Attorney General and his office in London. They can act quickly, whereas, with respect to him, the Attorney General, not being local, cannot.

My view

I appreciate and understand the force of all these points. However, I am very clear that, unless and until Parliament decides to provide a proper statutory basis for them to do so, the police simply have no standing to, and cannot act as applicants to, apply for and (as they wish in this case) press for committal in these circumstances. It is important to stress that breach of an FMPO is not of itself currently a criminal offence, although the circumstances may, of course, also involve a range of criminal activities, such as assaults, kidnapping or false imprisonment. If the police have evidence of any criminal offences, then of course it is open to them, in conjunction with the Crown Prosecution Service, to prosecute, and I say nothing at all to discourage such prosecution when appropriate if there is evidence of actual crimes.

There is, however, currently a particularly striking contrast between the legislation in Part 4A of the Family Law Act 1996, which relates to forced marriage protection, and that in Part IV, which relates to family homes and domestic violence. The Domestic Violence, Crime and Victims Act 2004 introduced and inserted as section 42A of the 1996 Act a new criminal offence if a person without reasonable excuse does anything that he is prohibited from doing by a non-molestation order. That section came into force on 1 July 2007 and the power to attach a power of arrest to a non-molestation order was concurrently abolished. When Parliament was enacting the Forced Marriage (Civil Protection) Act 2007, it, and the relevant Government policy makers, must have been well aware of what had recently been enacted as the new section 42A, creating an offence and abolishing the power of arrest, and was about to be brought into force. I do not know, and it is not for me to speculate as to, the policy reasons for not creating an offence of breaching, without reasonable excuse, a forced marriage protection order; but it seems to me clear that the current policy is deliberately, not merely inadvertently, not to create such an offence. In our society, and within our constitution, it is the role and duty of the police to prevent crimes (including the crimes which may be associated with forced marriages) and, in conjunction with the CPS, to prosecute when crimes have been committed. It has not to date been the role of the police to join in to private civil proceedings to apply to enforce the orders of the civil courts.
The concept of the statutory power of arrest, upon which Mr Weston places so much weight, has already been well established in the field of occupation orders and (until 2007) non-molestation orders for several decades since 1976. In my understanding, the (very important) role of the police under powers of arrest has always been limited to arresting the person concerned, bringing him before a judge, further remanding him in custody if so ordered, and giving written or oral evidence as to the circumstances of the arrest and whatever else of relevance that the police witnessed. The police have never been the applicants in subsequent committal proceedings, that being left to the person who obtained the order.

At paragraph 2-205 on page 143 of the current, fourth edition (2011) of Arlidge Eady and Smith on Contempt, the editors of that authoritative work state as follows,

"Where the contempt consists of a failure to comply with a court order, it is usual for contempt proceedings to be initiated at the behest of the party in whose favour the order was made. Even where the party takes the view that no further action is necessary, the court may, if it chooses to do so, draw the matter to the attention of the Attorney General for action. The reasons for this were explained by Megarry VC in Clarke v Chadburn [1985] 1 WLR 78."

The editors then quote a passage from Clarke v Chadburn on page 82 between letters G and H ("The order is made ... enforce the orders"). I wish, however, to quote rather more extensively from Clarke v Chadburn between pages 82F and 83C,

"I should add this. Mr Burton made it explicit that he was not seeking to have any penalty imposed on any of the five defendants in respect of disobedience to any of the orders made on 10 July, even though he was founding the present application upon a plain breach of one of those orders. Not surprisingly, there has been some comment upon the inactivity of the courts in cases where an order of the court is being openly flouted and contemned. There are some who ask why the courts stand by and do nothing.

It is perhaps not generally realised that where the party who has obtained an order from the court is content that it should not be performed, the court, generally speaking, has no interest in interfering so as to enforce what the litigant does not want enforced. The order is made so as to assist the litigant in obtaining his rights, and he may consult his own interests in deciding whether or not to enforce it. If he decides not to, there may in some cases be a public element involved, and the Attorney General will judge whether the public interest requires him to intervene in order to enforce the order. If neither the litigant nor the Attorney General seeks to enforce the order, the court will act of its own volition in punishing the contempt only in exceptional cases of clear contempts which cannot wait to be dealt with, cases in which, in the words of Lord Denning MR, 'It is urgent and imperative to act immediately' ... I should add that I speak only of disobedience to orders, and not, for example, of contempts committed in the face of the court.

Whether this is a satisfactory state of the law is a matter of debate. In cases where (as in this case) there are political overtones, if not more, there are obvious difficulties in requiring it to be the Attorney General who determines whether the public interest requires him to intervene; for however strictly unpolitical a mind he brings to the decision, the opportunities for misrepresentation are almost unlimited. There seems to be a clear case for considering whether there should be some relaxation by the courts of their present restraint on themselves in enforcing their orders in cases where these are being openly flouted and the administration of justice is being brought into disrespect. For the courts to say, as they often say, that, 'Orders of the court must be obeyed', becomes idle if there are daily instances of open and notorious disobedience remaining unpunished. If the courts become more ready to enforce orders of their own motion, no doubt consideration should be given to the machinery by which this might be done. But I have to apply the law as it stands."

That passage dates from 1984, almost 30 years ago. Mr Weston has not been able to identify the slightest indication or authority that in the intervening 30 years there has been any "relaxation by the courts" and certainly no consideration as to the appropriate "machinery" for doing so. The core of the passage is still cited as authoritative in Arlidge Eady and Smith, as I have noted above. I, like Megarry VC, have to apply the law as it stands. It seems to me, therefore, that the law is, as helpfully summarised by Mr Weston himself in paragraph 17 of his further skeleton argument. In civil contempt proceedings,

"The hierarchy of recognised applicants is as follows -

(a) the party who obtained the order;

(b) if he decides not to, the Attorney General, if the public interest requires him to intervene in order to enforce the order;

(c) the court will act of its own volition ... in exceptional cases of clear contempts ... in which it is urgent and imperative to act immediately."

It would not be an incremental step for me to add in the police as a category of applicants in this situation. It would be a huge leap in a legal framework that has been regarded as settled for many decades. It would involve the police becoming "prosecutor" in all but name in civil proceedings in which no crime is alleged. It would ignore that Parliament had an obvious opportunity to create equivalent provisions to section 42A but chose not to do so. Further, it is of some significance that the Lord Chancellor has, by order, specified local authorities as "a relevant third party" for the purpose of making the original application for an FMPO, but has not specified the police.

The policy considerations in favour of the police being able to be applicants are not all one way as Mr Weston would submit. He, and the police whom he represents, focus on the public interest, including the importance of deterrence in areas such as Luton. But there is a very important place, too, for consideration of the welfare of the vulnerable young person concerned if, as in this case, their parent or other close relative faces the threat of imprisonment or other quasi criminal punishment. The police are not necessarily best placed to weigh these considerations.

Conclusion and outcome

I am deeply conscious that I may appear to be overruling a decision and order of a co-equal judge, Mrs. Justice Parker. For the reasons I have already given in paragraph 17 above, I do not consider that I am. Her order did not preclude the judge at the substantive hearing from giving much more profound consideration to the issue of standing. Having done so, I am clear that the police cannot properly make, nor now pursue, the present application. In any event, it would be unconscionable for me to consider committing a person to prison (assuming the case to be proved to the required criminal standard) in a situation in which I consider, as I do, that the applicants have no standing.

No-one else is making any application. The local authority have studiously not sought to cast themselves in the role of applicants, although they are present as what was described in the order of 4 June 2013 as "an interested party", and although FF is currently in their care under an interim care order.

I do not consider that it is appropriate, necessary, nor helpful to FF in the present case to protract these proceedings by now referring them to the Attorney General in this particular case. I accordingly finally dismiss the applications to commit which were formally issued on 14 June 2013.

Policy

In my view, the facts and circumstances of this case do reveal or illustrate a grave weakness in the existing forced marriage protection order machinery as enacted in Part 4A.

Forced marriages are a scourge, which degrade the victim and can create untold human misery. It is vital that FMPOs have real teeth and that people bound by them, or having notice of them, appreciate that they are capable of being enforced and will be enforced even though the applicant young person may not seek enforcement himself or herself. The scope for psychological or other pressures in this field is obvious and is enormous. I note in the footnote to section 63I of the Family Law Act 1996, on page 1017 of the current, 2013, edition of the Family Court Practice, that, "Following a consultation process, the Government announced its intention to make forced marriage a criminal offence and for a breach of a forced marriage protection order to be criminalised."

By this judgment I would encourage the relevant Departments of State to give urgent consideration to improving the effectiveness of forced marriage protection orders and the means of enforcement. It is not for me to suggest how that should be done.