This was something of a mammoth case, which started in August 2009, with a forced marriage protection order. We were instructed by the Official Solicitor as Miss X suffers from Downs Syndrome and has severe developmental delay. She also has ancillary health problems including gross obesity and restricted mobility.
In September 2009 the case was transferred to the Court of Protection as COP proceedings were issued by the local authority. The forced marriage protection order was taken out by West Midlands Police and they remained involved until the following March, but were not a formal party to the Court of Protection proceedings. Their involvement effectively ceased when a forced marriage protection order was made on a permanent basis because of X’s lack of capacity to marry.
X’s husband was her cousin, ZZZ. They had married some five years previously in Bangladesh. He had made several attempts to enter the UK all of which had been rejected. However, on this particular occasion he was allowed to enter the country, in May 2009, and according to him the marriage had been consummated. There were obviously safe guarding issues for X and criminal issues given her lack of capacity to consent either to marriage or to a sexual relationship.
The parents were F and M. They were elderly and had in arranging the marriage for their daughter considered that they had done nothing wrong. They thought they were securing her long term future by obtaining a husband for her. They initially opposed the forced marriage protection order, but did not mount much of an opposition and in fact were compliant throughout the Court of Protection proceedings.
Dr D was instructed to form a view on X’s capacity and had no difficulty in concluding she had no capacity to consent to any form of sexual relationship. Professor X was then instructed from K University as a cultural expert. This was because the parents were saying there would be huge stigma on the family if there were to be a divorce. There was also a subsidiary issue of how a divorce might be obtained since the marriage occurred in Bangladesh, was not recognised here and a divorce in Bangladesh would be extremely difficult to achieve. Z’s immigration status was relevant. He had obtained entry visa as a spouse. If the marriage was recognised as invalid then his immigration status would be jeopardised
The UK Border Agency were given sight of certain papers anonymised. There was then an intervention from the Home Office because of the public policy implications of whether such a marriage should be allowed to subsist for cultural reasons, or whether steps should be taken to end the marriage with the consequential risks to the family by way of stigma and to the husband by way of immigration and being deported.
Mr X’s right to remain lasted for one year. He is currently undergoing an appeal and the latest letter is from the UK Border Agency and is dated 17 September 2012 and shows they maintain an active interest. X became ill in 2010 and whilst in hospital there was concern at Z’s rough handling of her. He was prosecuted but acquitted of assaulting her. Nevertheless findings were made that his handling of her was rough and uncaring. Eventually a Judgment was obtained after a very long delay and this is at the front of the file. Lease was given to release the Judgment in a redacted and anonymised form, but the published account on 17 August 2012 in Ballie was not sufficiently anonymised and further steps needed to be taken to ensure it was published in a completely anonymised form.
We have still not received a sealed copy of the order resulting from this and so although the draft Judgment was sent out on 26 July 2012 the date of the final order is rather unclear. The final order is at the front of the file after a great deal of amendment and is in the plastic folder along with the submissions of the Official Solicitor, which we were invited to put forward as to the publicised Judgment. The order provides for the Official Solicitor to institute proceedings for a declaration of nullity. This will be a subsidiary issue and will not be covered under the public funding certificates.
The LSC have confirmed that the certificates cannot be amended to include a family issue. There is also a letter from X who represent Z who indicated he will not oppose any petition and therefore there would not be full public funding available. We will be dealing with the divorce / nullity aspects once we can establish what X’s income is. Her parents are not compliant in enquiries. We are on a High Cost Case Plan and we were utilising X, but swapped due to difficulties within Chamber 2, X and then X.
There were some very lengthy arguments in court as to whether public policy considerations had any bearing on a court of protection case such as this. The Judge evidently thought they did and Mrs Justice Parker was clear that the court should not condone and give recognition to a marriage when it is patently clear that the participant has no capacity to enter in to such a marriage. We had proposed a number of injunctions and measures which would protect X – her husband it should be said having agreed at an early stage to remain separate from her.
The Immigration and Border Agency take the view that since that injunction was made and the marriage has not subsisted for most of the time Mr Z has been in England, his status as a spouse is in any event very questionable and the pronouncement of a nullity decree of otherwise is likely to have little impact on his immigration status. The UK Border Agency are more interested in the validity of a marriage in reality rather then the legal position of any marriage.
An uplift of 25% is requested to reflect the extra ordinary complexities and overlap between the forced marriage, court of protection, public policy and immigration law. There was also an overlap with the criminal law in terms of her ability to consent and whether consent could be issue specific or situation specific?
The client spoke extremely poor English and it was effectively non-verbal. Home visits were made by myself to her and I was struck on the last visit by how much progress she had made. The local authority having persuaded her parents to let her attend an Asian Ladies Day Centre.
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