London Borough of Southwark v P & Ors

This is an application made both in the Court of Protection and for a Forced Marriage Protection order in the High Court (Family Division). It concerns P who was born on a date in 1986 and is aged 28 years. There is a dispute as to the extent to which he lacks capacity to litigate and capacity to consent to marriage or sexual relations. I do not propose to say anything further about that at this point.

A report from a psychologist has been ordered and very regrettably indeed, it is not available to me today. I am told that it can be prepared by a date in June and I have come to the conclusion that it is necessary for that to happen. I am going to have to adjourn the case to a further hearing after the receipt of that report.

I entirely recognise that P’s family finds this litigation very distressing and would wish for it to be ended as soon as possible. I respect that. I wish that to take place. I am of the view that the quickest way to deal with this is for me to list the matter for a further one day hearing shortly after the date on which the capacity report is completed. It goes without saying that, if there is any slippage in the preparation of that capacity report, this court will not be at all happy, and that is an understatement.

I have now to consider what to do in the interim. There is a serious issue here as to whether or not P has capacity to marry. I also note that Mr. R says in his statement to me, that there was no intention to go to Bangladesh in October 2014 to marry P. Nevertheless, he goes on to say that “I do not have the intention for my son to get married unless he wishes to get married.”

The local authority has asked me to continue the very extensive forced marriage protection order injunctions that were made by Deputy District Judge Ferry on 1^st September of 2014, and continued by him on the return date on 18^th September of 2014. I think it is fair to say that there has never been any substantive consideration of the merits of those orders and, of course, I am not in a position today to give substantive consideration to the merits, without having the capacity report. I do, however, take the view that the position of P should be protected pending the next hearing. I disagree with the local authority that it is necessary for there to be stringent orders. I disagree with the local authority that it is necessary for P’s passport to be retained.

Mr Samuel, on behalf of the parents, has indicated they are prepared to give undertakings in some of the terms of the order which was made by Deputy District Judge Ferry. I am quite satisfied that those undertakings are sufficient to protect P pending the next hearing. I am going to discharge the injunctions on the basis of those undertakings, and I am going to direct the return of P’s passport to his parents.

I make it very clear, however, that I am doing so on the basis that he is going to be going on a holiday, or may well be going, to Turkey over half term. The holiday is being arranged by his sister, Ms B, who addressed me orally, albeit not on oath. Ms. B is a teacher. She is clearly very concerned about her brother and his best interests. I am satisfied that it is not the intention to take him to Bangladesh. I am going to accept an undertaking by the parents not to take him to Bangladesh until the next hearing by when the capacity assessment will have been prepared.

Therefore I consider that the existing orders should be discharged on the basis of an undertaking by the parents, R and A, that they are 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. They are also to undertake not to instruct, encourage or suggest to any other person to do so. They are to undertake not to take him to Bangladesh prior to the next hearing.

On that basis I will discharge the forced marriage protection injunction. I will continue the court of protection proceedings but will adjourn them to a one day final hearing. I re-time table the report from the expert.