London Borough of Southwark v P & Ors [2015] EWCOP 40

In this application for a Forced Marriage Protection Order there was a dispute as the extent to which P lacks capacity to litigate and capacity to consent to marriage or sexual relations.  A report from a psychologist as ordered was not available and the court had to adjourn the case as it was key to the proceedings. The local authority sought to extend the interim injunctive orders made in September 2014, such orders having been made without consideration of the merits of the application.

The court had to consider whether the injunctive orders and forced marriage protection order should continue or whether undertakings would suffice.

The core issue was whether P had capacity to marry. If he did not have capacity to marry then he would not be able to marry even if he wished to do so.

Background
P aged 28 was subject to a dispute as to whether he lacks capacity to litigate, consent to marriage or engage in sexual relations. The court had made a direction for the filing of an expert psychological report. At the day of the hearing the report was not available and the court had to adjourn and list the matter when the report was to be filed. The court had to decide what should happen in the interim. The father of P said in a statement “I do not have the intention for my son to get married unless he wishes to get married”.

The court in September 2014 had made a raft of injunctive orders to protect P’s position – there had never been a substantive consideration of the merits orders and Mr Justice Moor had to decide how best to protect P pending the next hearing.

Clearly during the course of this interim hearing there had been discussions as to  going on holiday and the possibility of a holiday to Turkey, that holiday being arranged by his sister, a teacher who gave evidence albeit not on oath to the court. 

Decision
In the interim pending the next hearing, the court disagreed with the local authority that there needed to be the stringent orders which had been in place in September 2014 and discharged the forced marriage protection injunction. In particular the judge disagreed with the local authority that it was necessary for P’s passport to be retained. The parents, through their counsel, had offered undertakings in some of the terms of the order which had been made by the Deputy District Judge in September 2014. Mr Justice Moor accepted those undertakings, in particular: not to take P to Bangladesh until the next hearing and that they were not to facilitate, allow or otherwise permit P to undergo any ceremony or purported ceremony of marriage, civil partnership, betrothal or engagement or from entering into any arrangement in relation to the engagement or matrimony whether by civil or religious ceremony of P whether within English jurisdiction or outside it. Furthermore they were to undertake  not to instruct, encourage or suggest any other person to do so. On that basis  Mr Justice Moor discharged the injunctions and directed the return of P’s passport to his parents.

The court, having heard evidence, albeit not on oath from P’s sister who is a teacher, was satisfied there was no intention to take P to Bangladesh.

Discussion
Whilst the court clearly had no option other than to adjourn the case due to lack of an expert psychologist report as previously ordered, some may consider that the court took a bold step in discharging the injunctive orders and accepting undertakings given by parents with also the return of P’s passport to them. This may be particularly so in the light of reports of many young people travelling to Turkey and on to other destinations, for reasons not previously disclosed. It must be stressed that in the judgment there is no suggestion that this was an action being contemplated by anyone in P’s family, or alluded to by the local authority. However the court’s action highlights the clear need for there to be proper judicial consideration of the content and duration of orders and the continuation of such orders are not simply a rubber-stamping exercise. Orders must be based upon evidence and the court must look at the least restrictive option available. The original orders were made by a court in September 2014 and it appears that there has never been a substantive consideration of the merits of the orders being sought. This case also highlights severe delay is affecting all participants in Court of Protection cases – the fact that an order was made in September 2014 which remains in existence in April 2015 clearly reveals the delays which are being experienced.

Read the full text of the judgment on Bailii