J v Luton Borough Council & Ors [2024] EWCA Civ 3

Appeal against decision it was not in J's best interests to travel to Afghanistan with his family and involving parallel proceedings in the Court of Protection and the Family Court.

J's family planned to travel to Afghanistan so J and his sister could visit family members living there and enter into arranged marriages. In January 2022, J's sister contacted the local authority to ask for support in bringing J's intended wife to the UK but a mental capacity assessment found J lacked capacity to marry and to engage in sexual relations. In August 2022, an interim Forced Marriage Protection Order ('FMPO') in respect of J was granted and a port alert put in place. At a further hearing in July 2023, the family made an oral application for an order that J should be allowed to travel with the family to Afghanistan. The application was refused by Roberts J partly because of the warnings in the FCDO advice on travel to the area.

Permission to appeal was granted on the grounds it was arguable the decision relied too heavily on the general risks identified in the FCDO guidance and did not account for J's wishes, beliefs and heritage. Peter Jackson LJ rejects that argument stating at [28]

"Having now heard full argument, I have reached the very clear conclusion that the judge took account of everything that she was obliged to consider and reached a decision that was comfortably open to her on the evidence that was available at the time. Indeed, with the more generous opportunity we have had to look at the issues, it is apparent that there were two additional matters, referred to below, that probably also needed to be addressed before an order could be made in the terms sought by the family. They were (a) that the court had no information about why asylum had been granted to this family, and (b) that J would have had to travel on his British passport as his Afghan passport had expired. Each of these issues was potentially relevant to an assessment of the risks that J might face in Afghanistan."

Read the full judgment on Bailii