The Forced Marriage (Civil Protection) Act 2007 (the act), in force from 25 November 2008, is an important social reforming statute of power and humanity, protecting the basic right to marry by choice.

The act inserts into the Family Law Act 1996 (the 1996 act) a new part 4A (sections 63A to 63S).

Section 63A(1) A forced marriage protection order (FMPO) made by a court may protect anyone:Forced marriages differ from arranged marriages. At least one spouse does not consent to the marriage and (section 63A(6)) there is some element of duress, which may be physical and/or emotional.

  • being forced into marriage;
  • from any attempt to be forced into marriage; or
  • already forced into marriage.

Section 63A(2) When making an FMPO, the court must consider all the circumstances of the case, including the need to secure the health, safety and wellbeing of the person to be protected.

Section 63A(3) In ascertaining that person’s wellbeing, the court must consider the person’s wishes and feelings (so far as reasonably ascertainable) as the court considers appropriate, in the light of the person’s age and understanding.

The High Court may direct the official solicitor, subject to his agreement, to ascertain the wishes and feelings of a vulnerable adult who has capacity to marry and, in an appropriate case, has directed that an adult victim thought to be at risk should be seen at the British High Commission in Dhaka.

If the wishes of the person to be protected have not been ascertained, the court can make an order for a short duration while those wishes are ascertained.

Section 63A(4) Forcing a person into marriage may be the result of:

  • threats to the potential victim;
  • threats of self-harm by the perpetrator; or
  • Harm, or threats of harm, to another

Section 63B The FMPO ‘may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate’. The wording should be clear and specific, to avoid disputes as to whether conduct amounts to a breach.

Section 64B(2) An FMPO may relate to:

  • on application; or
  • on its initiative, when hearing any family proceedings and a prospective respondent to any FMPO is a party to the existing proceedings. Thus, any county court hearing a section 8 CA application, whether it is designated or not, can, of its own initiative, make an FMPO.

  • conduct anywhere in the world;
  • respondents who are or may be involved in other respects as well as (or instead of) respondents who force, or attempt to force or may force, a person into marriage; or
  • other persons who are, or may become, involved in other respects as well as respondents of any kind.
    • Section 63B(3) These may include anyone who aids, abets, counsels, procures, encourages or assists another to attempt to force a marriage or conspires to do so. However, the act creates only civil remedies. The civil standard of proof applies to FMPO applications. Breaches must be established to the criminal standard.Section 63C The court may make an FMPO:

Section 63C(2) Applicants who can apply for an FMPO are:

  • the person to be protected;
  • a relevant third party (RTP) who is a person specified or falling within a description specified by order of the lord chancellor (section 63C(8)). An RTP can apply without the consent or knowledge of the person to be protected. It is expected that the lord chancellor will specify local authorities as RTPs; or
  • any other person with leave.

Section 63D Provides for the making of, without notice, applications and orders.

Section 63E The court may accept undertakings instead of making an FMPO, if it has the power to make such an order, but:

  • no power of arrest may be attached to these undertakings; and
  • an undertaking cannot be accepted if a power of arrest would otherwise have been attached to the FMPO.

Section 63H The court, when making an on-notice FMPO and when it considers that the respondent has used or threatened violence against the person to be protected, must attach a power of arrest to one or more provisions of the FMPO unless in all the circumstances there will be adequate protection without one.

Section 63H(3) On the making of a without-notice order and the court considers that there has been a use or threat of violence against the person to be protected, it may attach a power of arrest if it considers that there is a risk of significant harm to a person attributable to conduct of the respondent if the power of arrest is not attached immediately.

Section 63I The police may arrest anyone whom they have reasonable cause for believing to be in breach of an FMPO with a power of arrest attached. This person must be brought before the court within 24 hours from arrest.

Sections 63K and L contain powers of remand and medical examination and reports similar to those already in the 1996 act.

At present, applications for FMPOs may only be brought in the High Court, the Principal Registry of the Family Division and 14 designated county courts.

If a judge at another court grants an FMPO urgently on his/her own initiative, the proceedings under the act should then be transferred to a designated court.

The Family Proceedings Rules 1991 (the rules) have been amended appropriately. There are new prescribed forms for application and for orders.

Both adults and children may apply for FMPOs. A child does not need leave of the court if it or a solicitor considers that the child is able to give instructions. There is power to provide for appointment of a guardian under rule 9.5.

Any respondent should be served personally, not less than two days before the hearing, unless the court has abridged time for service.

Different considerations may apply depending on whether the person to be protected is abroad.

Practitioners should consider: Traditionally, they have been made almost exclusively in London, but there is no reason why they cannot be made in district registries.

  • advice from the Forced Marriage Unit of the Foreign and Commonwealth Office (020 7008 0151/18706);
  • the Hague Convention, which can only be invoked in the High Court;
  • Tipstaff orders, which can only be made by Family Division or S9 Judges.

Within days of the act’s implementation, an application was brought to protect a doctor who had been lured to Bangladesh. Although an order was made, this was the decision of a judge in Dhaka, under reciprocal arrangements, the English proceedings having been withdrawn, because the victim was not a British national.

An encouraging lesson.

District Judge Duncan Adam sits at Swindon County Court