Does the Court of Protection have role in combatting forced marriages in the UK?
The Mental Capacity Act 2005 provides the statutory basis for the Court of Protection.
The Court of Protection is a specialised court that adjudicates on behalf of people over the age of 16, who are assessed as lacking mental capacity (decision making ability) in one or more areas. These areas can include whether they can make decisions in respect of their care and residence, consent to sexual relations, and decide who they can have contact with.
In these circumstances, the court steps in to make decisions on their behalf, in their best interests.
What is a forced marriage?
This is defined on the Gov.uk website as: “A forced marriage is where one or both people do not (or in cases of people with learning disabilities or reduced capacity, cannot) consent to the marriage as they are pressurised, or abuse is used, to force them to do so. Forced marriage is illegal in the UK. It is recognised as a form of domestic or child abuse and a serious abuse of human rights.”
Relevant law
Section 63A of the Family Law Act 1996 states that the court may make an order for the purposes of protecting:
(a) a person from being forced into a marriage or from any attempt to be forced into a marriage; or
(b) a person who has been forced into a marriage.
The Act defines force as coercion by threats or other psychological means.
Contents of the order
The Act states that forced marriage protection order may contain:
(a) such prohibitions, restrictions or requirements; and
(b) such other terms; as the court considers appropriate for the purposes of the order.
This court order can be applied to persons:
(a) aiding, abetting, counselling, procuring, encouraging or assisting another person to force, or to attempt to force, a person to enter into a marriage; or
(b) conspiring to force, or to attempt to force, a person to enter into a marriage.
Summary
I have a number of clients who are subject to Court of Protection proceedings and are also subject to a forced marriage protection order.
It's important to note that a person doesn't need to lack capacity to marry in order to be subject to a Forced Marriage Protection Order. However, if they do, they cannot legally consent to marriage themselves.
I've seen that the Court of Protection often has a significant role reviewing the complex care and contact arrangements for my clients around the protection order provisions. For example, clients may need restrictions to be authorised so that they aren't coming into contact with people who risk harming them. Specialist expert capacity reports may also be required and the court can make directions giving permission for this.
Therefore, the Court of Protection does have an important role in combatting forced marriages for incapacitated individuals in the UK.
Find out more about Irwin Mitchell's expertise in supporting people classed as lacking mental capacity to make decisions at our dedicated protecting your rights section.
