Coventry City Council v MK & Ors

At this hearing I heard evidence from the jointly instructed expert professor Rehman. He had first been instructed as a single joint expert pursuant to the order of HHJ Tucker on 28^th January 2022 and provision for addendum reporting and extensions of time for questions and responses were made within the orders of Roberts J. Professor Rehman is professor of law at Brunel University with an expertise in Islamic Law International Human Rights Law and Pakistani Family Laws.

In the days immediately preceding this hearing I received correspondence from the solicitor acting for GK and MAK inviting me to direct that he should not attend to give evidence. Mrs Justice Roberts had made provision in her order of 8^th August 2022 for his attendance unless it was agreed by all parties that there was no need for it. In the face of what appeared to be a request that was not agreed by all parties, I did not see good reason to interfere with the arrangements made by Roberts J and to dispense with his attendance. Strongly urged on me also by Mr Radcliffe was a submission that I should set aside or otherwise interfere with the way in which Judges case managing the matter at earlier hearings had provided for the costs of the expert to be met. It will be necessary to return to that.

A further preliminary issue arose in relation to another event shortly before the hearing when, in what appears prima facie to be a breach of the FMPO tickets had been bought for MAK and MK to travel to Pakistan on the Monday after the listed hearing. There was discussion between counsel about whether I should hear evidence from the social worker for MK about the discovery of the purchase of those tickets. In circumstances where the updated information is that MAK has been interviewed by the police and bailed to 1^st March next year and the question of any breach of the FMPO is being dealt with by the criminal justice system it was agreed that I need not hear from the social worker. I have also – beyond seeking Mr Radcliffe’s assurance on direct instructions from his clients, that all expired as well as existing passports, whether issued by the Pakistan or United Kingdom authorities for MK , have been handed over to the police – not considered at this hearing any issue as to a breach which will take its course in the police investigation. It was therefore unnecessary for me to hear evidence on updating matters from the social worker whose written evidence I have within the trial bundles

Professor Rehman in his 3 helpful reports had considered carefully the requirements and formalities for Islamic and Pakistani marriages. A Muslim marriage is essentially a contract of civil law between a man and a woman. Under Muslim personal law, the marriage (Nikah) is perceived as a contract of civil law between two consenting persons of sound mind, who have attained puberty. The contract can be oral or in writing. The Nikah is effected simply by an offer and an acceptance. The declarations of offer and acceptance are pronounced by the parties, or by their vakil (lawyer/representative) or wali (guardian) acting on their behalf. The requirement is that the marriage must be conducted in the presence of free witnesses: two men or one man and two women.

These Islamic schools of jurisprudence (known as Madhahib), he reported, are generally followed on a geographical basis, with the majority of Muslims in Pakistan following Sunni Islam. The marriage contract is the only valid requirement in concluding a marriage under Islamic law; requirements such as privacy between the husband and wife or the consummation of marriage are not essential to the conclusion to valid marriage (although these factors might be legally relevant for the dissolution of the marriage) and requirements for valid marriage. However, there are some variations and differences in practice (for example, in relation to the role and authority of the marriage guardian).

Pakistan’s Family laws have formally incorporated the Islamic law of marriage through MFLO. Section 3 of the MFLO provides that the ‘provisions of this Ordinance shall have effect notwithstanding any law, custom or usage, and the registration of Muslim marriages shall take place only in accordance with these provisions’. Section 5 of the MFLO, requires mandatory registration of all marriages performed under Muslim law. Section 5 provisions of MFLO include a requirement that every marriage solemnised under Muslim Law is to be registered in accordance with the provisions of the ordinance

Within his oral evidence before me he expanded his explanations to explain that whereas the Islamic marriage, could be oral or in writing, it was not the case that there was any need for a documentary record, it was the requirements for mandatory registration within the Pakistani law on incorporation of Islamic law of marriage by the Muslim Family law Ordinance 1961 which had led to the requirements for written arrangements and recording.

The Nikah Nama in this case which he has examined carefully is an incomplete and invalid document. The significance of this is that the Nikah Nama records the contents of the Nikah and so it is that all information must fully and comprehensively provided within it. Here the document provided is incomplete as it fails to include answers to Question 9 on the document i.e. whether any vakil (lawyer/representative) has been appointed by the bridegroom in respect of which his full name, father’s name and residence must be noted. That is, Professor Rehman said when asked in his oral evidence, a serious defect. The tenor of his evidence before me was that had that been the only defect it would have been a matter of very serious concern to him but it was not.

On his examination of the document he found that there are also the deficiencies which he identifies in his report in respect of Question: 10. This relates to the names of the witnesses in the appointment of the bridegroom’s vakil with their father’s names and their residences. This too Professor Rehman was firmly of the view was a significant problem as to validity

There is equally he told me an absence of what was the evidence, by which MK’s grandfather had the legal authority to sign the Nikah Nama as his vakil (representative). Since this is a marriage by WhatsApp (and MK is not physically present at the location of the marriage), that evidence by which the grandfather had been lawfully authorised as a vakil and thus lawfully authorised to sign the Nikah Nama – setting aside for the moment as I understood his evidence the other defects with that document – was crucial to the legitimacy of his role as a vakil.

It would be possible in Professor Rehman’s expert opinion for the validity of the authority for MK’s grandfather to act as his vakil to be evidenced by a valid special power of attorney duly attested by the Pakistan Consulate/High Commission in the United Kingdom and sent to his grandfather in Pakistan. There were however as professor Rehman was clear in his oral evidence two further difficulties – first though not his particular area of expertise he saw there were likely issues in relation to the capacity of MK to make such a power of attorney; second there could not be a retrospective legitimising of the vakil for the ceremony which had already taken place and accordingly it would require a new ceremony to be undertaken. Cross examined by Mr Bradshaw he was clear that it was not a route open to providing legitimacy for the purported marriage here

Within his written opinion Professor Rehman indicated that in the context of an invalid marriage, the cultural implications for MK are likely to be significant whether the court grants a decree of nullity on the basis that the marriage is void, or if it makes a declaration of non-recognition on the basis that the marriage is a non-marriage/non-qualifying ceremony. There would be considerable embarrassment within his immediate family and his community stemming from his inability to have the woman understood by that community to be his ‘bride’ travel from Pakistan to join him. Further embarrassment would flow from the fact that he would not be able to have what would be perceived as a normal married life which would be the expectation for young males within the community. When the question of the cultural implications for MK if the marriage was not valid was revisited in oral evidence professor Rehman was more diffident in respect of MK. He did not regard there as being much in the way of direct cultural implication (as distinct from personal disappointment) for MK himself though the Professor maintained his view as to the likely community and cultural embarrassment for his family. Specifically, when asked by Mr Bradshaw it was not the professors view that there was any likely impediment to MK participating, to the extent that he already does, in community events or being included as a member of the community because of any decision taken (by whatever route) by this court about his invalid marriage

His view remained that the cultural implications for A are likely to be extremely serious if the court grants either remedy. Orally he described the consequences as potentially ‘devastating’. The typical response from the sort of community within which she lives in Pakistan is one which is extremely judgmental. Many members of her community and wider family would not be aware or understanding of the circumstances and reasons behind the English court’s decision and she is likely to be consistently tormented for bringing her community or family into disrepute through this ‘marriage’.

Professor Rehman had been asked to consider whether there could be in Pakistan law in his view two different concepts of marriage as either a void marriage or a non -marriage/non qualifying ceremony. In his substantive report he indicated that there are those equivalent concepts in the law of Pakistan. He had not by his third report explained where the distinction would fall in that jurisdiction. In the course of his oral evidence whilst Professor Rehman spoke of degrees of invalidity, he did not give a firm view so as to assist with the delineation between those two. He declined to be drawn into a wider review of all circumstances which might arise but his unequivocal view was that this case the failings of formalities were fundamental to the validity of the marriage. All of the deficiencies were troubling but the absence of a Nakil was seemingly fatal as far as he was concerned

On all of the evidence I am satisfied that in this case the Lex loci is Pakistan. In arriving at that conclusion, the following aspects have carried weight in my thinking:

When I come to set against those factors any aspects which could suggest the Lex Loci is in England, the single feature which might indicate that is MK’s own presence here, attending as he did by Whatsapp. I accept and agree with the submissions of both Mr Bradshaw and Mr Squire that that is insufficient to regard the lex loci as here when set against those which point to it being in Pakistan

Having determined that the lex loci is in Pakistan, I move to the status of the marriage. From the evidence of Professor Rehman I distil the following key points:

Counsel for the Applicants and for MK centred their submissions helpfully on the approach taken in Asaad and in particular the steps set out at para 97 of the judgment of Moylan J which they each submit are likely to be of assistance given the similarity of the circumstances here. Having found that the marriage is invalid in Pakistan as I consider the matters identified by Moylan K at para 97 (b) in Asaad ,I reflect on the evidence I have heard from Professor Rehman. Within his written evidence he had been explicit in giving the opinion that there were in Pakistan Law concepts which sufficiently equated to the concepts of a void marriage and a non-qualifying ceremony (elsewhere referred to as a ‘non-marriage). In his oral evidence, whilst maintaining that Pakistan law had those separate concepts, he was hesitant to say with certainty when asked, whether his view was that this situation fell into one or the other of those two situations. The emphasis of his evidence was that the defects were such that the ceremony was not one which was qualifying.

I conclude that the effect of the expert evidence here, differs from that which faced Moylan J in Asaad . It does not lead to an answer that Pakistani law has no separate concepts of a marriage being void or voidable or a non-marriage such that the outcome here could only be a void marriage. Since I am satisfied on the expert evidence that there are two equivalent concepts in Pakistani law, I am also satisfied that I may apply whichever is most appropriate to the facts of this case to determine the effect of the defect

Counsel submit that following through the reasoning in Asaad to 97(c) in any event, it is for me to decide what remedy under English law, if any, is available for the reasons set out in Burns v Burns para. 49. If a void marriage, a decree of nullity is available as a remedy. If nullity were the appropriate course, a best interests decision would be required as to whether the Official Solicitor should petition for such a decree. MK lacks capacity to marry and it would follow therefore also capacity to seek to nullify a marriage. I recognise that there may well be significant practical difficulties, including financial ones, involved in making such a petition.

Neither counsel submits that I should find that this is a void marriage. Each invites a conclusion that this is a non-qualifying ceremony. Both submit however that if contrary to their positions, the outcome is one of the equivalent of a void marriage, the appropriate remedy would be that of a nullity decree. Mr Bradshaw draws support for his submission in that respect by pointing out that this would accord with the English law distinction whereby nullity is not granted for non-qualifying ceremonies, but generally is where there is sufficient in what has taken place at the ceremony to regard the marriage as having been entered into but being void.

Had I not accepted the expert opinion in the written reports of Professor Rehman that there were equivalent concepts in Pakistan law and been left with applying English law concepts, Mr Bradshaw’s submission is that it would have been necessary for me to consider the features of the marriage and to consider he formalities by reference to the formalities of the Marriage Act 1949 and the Matrimonial Causes Act 1973. In the circumstances however that does not arise.

Mr Squire whilst making a clear submission that in this case I should take a route which leads ultimately to a declaration of non-recognition has made careful submissions as to the approach to be taken to essential invalidity for want of capacity as distinct from formal invalidity. The Official solicitor has given careful thought to the way in which the particular circumstances of MK inform her position on whether she invited me to make a declaration of non recognition for want of capacity and Mr Squire submission is that this is not a case in which he was coerced or forced in any sense felt by him to be against his will into a marriage. That being so, submits Mr Squire, the Court should, on balance, not reach the conclusion that it is sufficiently offensive to English Court not to recognise it on that basis. I accept his submission on that. Instead, he submits that in the light of Professor Rehman’s unchallenged evidence I should make a declaration of non-marriage on the basis of a non-qualifying ceremony. After careful consideration I accept that submission in the factual circumstances of this case. I consider the events in Pakistan to be akin to a non-qualifying ceremony/non-marriage.

I am satisfied that it is the more appropriate determination on the evidence before me than a determination of a void marriage and an application for a decree of nullity. I am also satisfied that on public policy grounds, it is appropriate make such a declaration to ensure certainty and to protect MK from the implications of a forced marriage. that I make such a declaration on public policy grounds does not detract from the fact that the decision is one that I make on the fact specific circumstances here and is not intended as being of any wider application for other cases which are very likely to depend on their own factual circumstances.

Returning then to the questions at [8] which fall to be determined at this hearing, my determination as to the purported marriage answers the first two questions as to the validity and any remedy. The third question relates to the terms of any FMPO. By the time of the end of the hearing, there was agreement as to the terms of such order and I was provided with an agreed draft. As a result the matters remaining to be considered are those which relate to Best Interests decisions

There is no controversy as to the first three. Final declarations have already been made that MK lacks capacity to: 

On all the evidence before me he is well settled in the placement. He has a good relationship with his parents and so far as contact with them is concerned will continue to see his mother. His contact with MAK will now be affected by the imposition of bail conditions following the arrest of MAK for breach of the FMPO. The plans for his care and support needs are amended so as to provide for a programme of educative work. MK’s social worker has exhibited an updated care and support plan and a risk assessment from the care provider in relation to his social media and internet use and access to pornography. It is the local authority’s intention to review these restrictions once MK has completed his educative work around sex and relationships, discussed below.

The restriction on access to the internet and in particular restricting his access to pornography is one that caused me some disquiet given his age and situation. I had been troubled by the way in which the local authority appeared to couch the need for it in terms of the convenience and comfort of younger female staff in terms of managing MK’s behaviour (which was less challenging when access to the internet was restricted) rather than it arising out of the focus on his needs. I have however heard submissions from the Local Authority, which are strongly supported by the Official solicitor, first that the restrictions in that regard are intended to be limited in time to the period during which educative work (as to which more below) is provided to MK and second that whilst the reference to the convenience and comfort of younger female staff is a matter of concern arising as it does from MK’s uninhibited behaviour, it is the knock on effect of that and the potential for it to de-stablise his care and otherwise settled placement which is the real driver for the restrictions.

I have been provided with evidence that the local community learning disability trust has been engaged to provide tailored 1:1 educational provision for MK, addressing consent, sexual acts, sexuality, gender and safe sex, relationships (including marriage) and online safety. The trust is in the process of assessing MK’s level of attention so as to plan the structure and timescale for the course. It is recognised that MK’s capacity and also the need for restrictions on his access to the internet including to pornography will need to be revisited once the work has completed and the timescale for the work is likely to dictate the timing of such a review.

Mr Radcliffe on behalf of GK and MAK takes a different position to that which the Local Authority and the Official solicitor adopt. He does not disagree with the imposition of the restrictions proposed but does take issue with the timing and to an extent the reasoning behind any restriction, in the sense that GK and MAK submit there are additional reasons of a religious and/or moral character. He has submitted to me that MK is a member of a family whose members are strictly observant of the Islamic Faith; it is not in keeping with MK’s faith to be having access to pornography Amongst the tenets which he would be expected to follow (and submits Mr Radcliffe, had he capacity would choose himself to follow) is that he would not engage in masturbation. The practice of masturbation, submits Mr Radcliffe, is something which the Islamic Faith and Abrahamic faiths more generally deprecate. For the purposes of this hearing I am prepared to take that submission at face value. The use of pornography by MK and his access to it submits Mr Radcliffe encourages his interest in masturbation and so on behalf of GK and MAK he invites me at this hearing to authorise the restrictions on MK’s internet access permanently. I am not prepared to sanction or to consider sanctioning so significant a restriction on the liberty of a young man in his 20s on the evidence before me. On a best interests basis I will authorise it in the terms which the Local Authority and the Official solicitor invite me to. I will approve the care plan, which has been made available to me as a working document in its finalised form

The final aspect of the matter which is necessary to return to at this stage are those submissions made on behalf of GK and MAK in respect of the costs of the single joint expert. These have been most helpfully set out in detail in writing by Mr Radcliffe and were amplified orally. Whilst it is conceded that the FMPO order of 8th August 2022 specifies that the GK and MAK shall bear, collectively, one half of the cost of Professor Rehman’s attendance, Mr Radcliffe submits that I should vary that order for the following reasons (which I paraphrase from the detail of the oral and written submissions).

Whilst I recognise that this is a creative submission made on strongly held instructions it is not one which I find holds any attraction. There may be other circumstances in which the analogy to the appellate situation is apposite, but this is not it. The instruction of the expert was necessary and sanctioned as such by the court pursuant to part 25. The detailed case management by Roberts J on 8^th August 2022 provided a mechanism whereby in the event that the parties were able to agree that attendance was not necessary he need not attend (and thus the cost of his attendance avoided). The parties were not agreed. His evidence was required. I do not accept the submission that the outcome as to how the Court is to treat the invalid marriage and the remedy consequent upon that decision is properly to be regarded as academic. Were it so it would not have required determination. Nor do I accept the submission that the fact that GK and MAK, the respondents to the application for a FMPO which has been continued at this hearing, did not seek to cross examine or challenge his findings provides a reason to vary the order of Roberts J and I decline to do so.

I will invite Counsel to draw up orders which give effect to this judgment and to submit them for approval. I should like finally to express my thanks for the care and diligence which has been evident in the way that the matter has been prepared and presented.