KBH & Ors (Forced Marriage Protection Order : Persons To Be Protected Permanently Resident Abroad)

There is listed before me this afternoon an unusual matter. Earlier this year a very well-known and distinguished solicitor, Miss Anne-Marie Hutchinson, O.B.E, who is a partner in the equally well-known firm of Dawson Cornwell Solicitors, issued proceedings essentially for forced marriage protection orders. In those proceedings three young people are named as the applicants. They are KBH, who is a male, now aged 19; BBH, also a male, now aged 17 ½; and MBH, a female, now aged 15 ½. As I understand it, those three persons are all British citizens. They lived at one stage here in England and Wales, but have lived with their mother lawfully in Somalia, of which they are probably also citizens, for at least the last ten years. So far as I am aware, none of those three people, nor, indeed, their mother, have set foot in the United Kingdom for at least the last ten years.

They do have an elder sister who does live here in England, and it was that sister who put in train the present proceedings. She contacted the Forced Marriage Unit of the Foreign and Commonwealth Office and said that she was concerned that at least one of her younger siblings, namely KBH, was about to be forced into marriage by his mother in Somalia. As I understand it, the Forced Marriage Unit then contacted Dawson Cornwell and these proceedings have ensued. Several times now during last summer co-equal judges of mine sitting in the High Court have made forced marriage protection orders. The last such order was expressly stated to expire at the time of the present hearing today. Despite various efforts, nobody has been able to locate this family in Somalia, although a sister of the mother (which sister herself lives in London) has recently given such information as she can with regard to their whereabouts. She indicates a town or area in Somalia in which they may be living and gives two telephone numbers, but goes on to say that she herself has not had any contact with her sister (the mother) or the children for many years.

Information with regard to these proceedings did apparently reach the mother in Somalia two or three weeks ago from the elder daughter who lives here in England, and as a result the mother, or a person purporting to be the mother, actually telephoned Dawson Cornwell yesterday. I have an attendance note by Mrs Wendy Ramus of that call. The mother was told that there was a hearing here today, and she indicated that she would be happy to participate by telephone link if a Somali interpreter was arranged. I have been told, however, that she had an entirely lucid and articulate conversation with Mrs Ramus without the need for any interpreter. During this afternoon a number of attempts have been made to telephone the mother on the telephone number from which she rang yesterday (which coincides with one of telephone numbers given by her sister recently), but they have been unsuccessful. Either there is simply no ringing sound or response at all, or a recorded message states that the number is unavailable.

I have been asked this afternoon by Ms Mehvish Chaudhry, who appears nominally on behalf of the three applicants, but instructed by Dawson Cornwell, to renew or extend the existing forced marriage protection orders. I have been further asked to make a forced marriage protection order in relation to a younger child, who was apparently born in October 2008 and is now aged nearly ten, and I have been asked to make BBH, MBH and that younger child wards of court. I could not, of course, make KBH, who is now adult, a ward of court. Finally, I have been asked to direct the mother to make these various people available for an independent welfare check or interview at the British Embassy in Addis Ababa. I was told that there is apparently no British Embassy or consular representation within Somalia itself, but obviously any order that requires a person to take children out of the country in which they are living to another country, namely Ethiopia, raises significant issues. I do not know, for example, whether any of these people actually have current passports. I have been told by Ms Chaudhry, who researched it on her laptop just now, that the driving time between the area in which this family may be living in Somalia and Addis Ababa is about 14 hours. I have no idea whether the family have any sort of vehicle. I have no idea whether their circumstances are such that they could reasonably be expected to undertake journeys of 14 hours’ driving time each way.

But it seems to me that in any event this whole set of proceedings raises much more profound considerations. It is perfectly true that I myself explained at considerable length, and exercised, a jurisdiction based upon British nationality alone in the case of Al-Jeffery v Al-Jeffery (Vulnerable Adult; British Citizen) [2016] EWHC 2151. Even in that case, drawing upon observations by the Supreme Court, I stressed that a jurisdiction based on nationality alone requires to be exercised with caution and circumspection. But on the facts and in the circumstances of that case the vulnerable adult concerned had relatively recently been living here in England and Wales, where she had been brought up throughout her childhood. Further, it was she herself who had made contact with Miss Anne-Marie Hutchinson and Dawson Cornwell, and Miss Hutchinson was receiving instructions directly from the applicant for whom she was constituted the litigation friend. In the present case, as I have said, none of these people have lived in the United Kingdom at all for at least ten years. The youngest one, in relation to whom I have been asked today to make some order, was born in Somalia and has never, so far as I know, set foot in the United Kingdom, although it may be that she is entitled to British citizenship, because her mother was a British citizen at the time of her birth.

Accordingly, in the present case, unlike the Al-Jeffery case, Miss Hutchinson and Dawson Cornwell, acting, of course, in the utmost good faith, are in fact acting without any instructions at all from, or on behalf of, any of the people who have been named as applicants. There has simply been no communication whatsoever, although I observe that the eldest of them is adult and, I will assume, of full capacity, and the next two, being aged 17 ½ and 15 ½ are, I assume, of ample capacity directly to instruct a lawyer if he or she so wished.

So this is an application that, on analysis, is being made entirely altruistically on no instructions whatsoever. Ms Chaudhry said to me that it is being supported in some way by the Forced Marriage Unit, which is itself located within the Foreign and Commonwealth Office. It may be – I do not know – that it is the view of Her Majesty’s Government, through the Foreign and Commonwealth Office, that the British Government should itself proactively take steps to protect anyone who is a British citizen, wherever they may be, from forced marriage, even if their current and recent connection with the United Kingdom is that of citizenship alone. But if that is so, it seems to me that the proper applicant in a case such as this should not be the people concerned acting through, or supposedly acting through, a litigation friend of whom they have absolutely no knowledge. Rather, it should be Her Majesty’s Government itself acting, I presume, through the Foreign and Commonwealth Office and more specifically the Forced Marriage Protection Unit.

So I decline to make any order of any kind today, because I am not in fact satisfied that currently there is a properly constituted set of proceedings at all. It seems to me that I have got no more than a solicitor altruistically making an application with no basis in any instructions. I decline to make any order at all, and I will not extend or renew the existing orders. But this outcome and, indeed, this judgment (which must be transcribed) must be drawn to the attention of the Forced Marriage Unit, and my order will make express on its face that if Her Majesty’s Government, through the Foreign and Commonwealth Office, wishes to apply for an order in protection of any of the present applicants on the basis of their being British citizens, it may do so. I do not, of course, forecast or speculate what the outcome might be.