Somali "forced marriage" case poses headache for UK courts

This story first appeared in LegalBrief.

AS the world becomes more aware of the need to protect children and young people from forced marriage, courts are faced with increasingly difficult cases on the issue. A new UK decision involving a family of children from Somalia illustrates the problems that judges could face. The children’s older sibling, who still lives in the UK, believed their mother was intent on the forced marriage of at least one of the children and tried to get the UK courts to act. In a series of hearings, the courts repeatedly extended protection orders over the children. But then the court was faced with a new dilemma – lawyers asked the judge to order that the family should trek from Somalia to Ethiopia for a welfare check, even though the court had no idea how, and even whether, the family would be able to make that long journey.

INCREASING awareness of the rights of children not to be forced into marriage led to this unusual trans-continental case, heard in the UK courts but involving an African family.

It concerns four young Somalis, formerly of the UK but now living in Somalia with their mother. The siblings’ sister, still in the UK, asked for help when she heard that their mother intended to force at least one of the younger siblings into marriage in Somalia.

The sister contacted the Forced Marriage Unit (FMU) of the Foreign and Commonwealth Office (FCO) and reported her concerns. That unit in turn contacted a prominent UK legal firm, one of whose solicitors, Anne-Marie Hutchinson OBE, is a leading expert in the field of forced marriage, child abduction, female genital mutilation and related international cases.

As a result, an application was brought to court naming the siblings as applicants. Starting early last year several forced marriage protection orders were made by successive judges of the high court, repeatedly extending protection to these siblings in Somalia who might have been under threat.

Most recently, however, the case came before Judge James Holman whose approach to the legal basis of the case differed from that of the previous judges involved. As a result, the whole matter could now take a different course.

In theory, the case had been brought by the siblings themselves but since no-one had taken instructions directly from the siblings, the judge said it was now up to the UK government to decide whether it should bring legal action on the grounds of the possible threat, based on their British citizenship.

The original case concerned two males, aged 19 and 17 ½ and a female aged 15 ½, though in the most recent hearing Judge Holman was asked to add a further forced marriage protection order in relation to a younger child now aged almost 10. The judge heard that as the mother was a British citizen, this child too could be given protection by the UK courts. He was further asked to make the younger children wards of court – as the oldest was now legally adult, such an order was no longer available to him.

In the hearing before Judge Holman, the application went further than previously: the court was also asked to direct that the mother make all the siblings available for an independent welfare check at the British Embassy in Addis Ababa, there being no embassy or consular representative in Somalia – this went the lawyers involved really did not know where the family actually was.

This raised significant problems, said the judge. He did not know if the family had passports; the driving time between the area where the family “may be living” in Somalia and Addis Ababa is about 14 hours; there was no indication of whether the family have any vehicle or whether their circumstances were such that they could reasonably be expected to undertake two such long journeys.

The family had lived in England and in Wales at one time, but they returned lawfully with their mother to Somalia where they have been living for “at least the last 10 years”. None of the family, including the mother, has been to the UK in that period.

Before the original case was launched, and since then, efforts were made to locate the family in Somalia.

The mother in Somalia somehow came to hear of the case and called the law firm acting for her children. Apparently speaking from Somalia, she said she was prepared to participate by telephone in the court hearing scheduled for the next day, but on that day there was no response at the number from which she had called.

Faced with the application itself and the complex additional requests on behalf of the siblings for the court to intervene by ordering that they all trek from their homes to Ethiopia for a “welfare check”, Judge Holman said there were “profound considerations” for the court.

“None of these people have lived in the UK for at least 10 years,” he said. The youngest was born in Somalia and had never set foot in the UK, although she might be entitled to British citizenship through her mother. The legal team that brought the case, while acting in “the utmost good faith”, in fact “had no instructions at all” from, or on behalf of, any of the people named as applicants. “There has simply been no communication whatsoever”.

The application was being made “entirely altruistically” but “on no instructions whatsoever”.

When one of the legal team told the court that the case was being supported in some way by the Forced Marriage Unit of the Foreign and Commonwealth Office, the judge said it might be that the government believed it should take steps “to protect anyone who is a British citizen, wherever they may be, from forced marriage” even if their connection with the UK was 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 at arm’s length, but it should be the government itself, acting through the FCO and in particular, through the FMU.

The judge, who described this as a most unusual matter, therefore refused to make or renew any order in the case, but said the judgment should be drawn to the attention of the FMU. He also specifically noted that if the government, through the FCO, wanted to apply for an order to protect the applicants on the basis of their citizenship, they could do so.

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Read the judgment: KBH & Ors (Forced Marriage Protection Order : Persons To Be Protected Permanently Resident Abroad) [2018] EWHC 2611 (Fam) (28 September 2018)