Mental Capacity Act 2005 and Forced Marriage (Civil Protection) Act 2007 (FMCPA). Summary of Learning from AG (Welfare: FMPO), Re [2024] EWCOP 18
Context
The local authority made two related applications concerning AG. A Forced Marriage Protection Order (FMPO) was requested under the Forced Marriage (Civil Protection) Act 2007 (FMCPA) for one year to prevent AG from travelling abroad and to prevent her parents from forcing her to get married. Under the Mental Capacity Act 2005, the local authority was seeking authorisation to continue with the current care plan, and for authorisation of the deprivation of AG’s liberty in her current placement.
This briefing is a short summary of the case, judgement and learning for practitioners working with the Mental Capacity Act 2005 and people who may have been forced into marriage.
To read the full judgement, see https://caselaw.nationalarchives.gov.uk/ewcop/2024/18
Background
AG is a 24 year old woman with a diagnosis of a mild learning disability, anxiety and depression. In September 2019 AG travelled to Pakistan and married her cousin Mr Q, under Sharia law. Two weeks prior to her wedding, AG ingested bleach and was discharged after psychiatric assessment.
After the wedding, AG returned to the UK without Mr Q, who did not make an application to join her in the UK until September 2021. This application prompted the Home Office to make a referral to the local authority requesting an assessment of AG’s mental capacity to have entered into the marriage.
Around the same time, AG’s family found out that she had a boyfriend. AG reported that she was slapped by her parents, locked in the house and had her mobile phone removed.
AG ingested bleach a second time in January 2022 and was found on a dual carriageway at night after leaving A&E. After being taken to a place of safety by the police, AG returned home to her parents the next day with a police issue mobile phone to enable her to call for help if needed.
AG required medical attention from her GP in February 2022 after jumping out of a first-floor window, there was conflicting information about why she did this.
AG moved to a supported living placement in March 2022 when Forced Marriage Protection and Deprivation of Liberty orders were made by HHJ Hildyard QC. AG began to have supervised contact with her family.
In October 2022 orders to continue the Forced Marriage Protection Order (FMPO) were approved, and a plan was made for AG to return home with a statement of intentions. This outlined:
- AG’s capacitous wish to continue her relationship with her boyfriend;
- That AG should be allowed to choose what she wears; and
- A schedule of visits between AG and her social work team in the absence of her family.
While living back at home AG’s relationship with her boyfriend ended, but in December 2022 they were back in contact, and he took her to hospital after she ran away from home and was vomiting. AG told him that her parents refused to take her to hospital. Later that month AG jumped out of a first floor window and sustained a significant injury to her knee, although she was initially misdiagnosed after the medical professionals were told by AG’s parents that she had fallen in the garden.
AG moved to a rehabilitation placement and remained there until she moved into a shared lives placement in January 2024 in which she received 1:1 care for 30 hours per week, with a view to being reduced. Assistive technology was activated at night to alert carers if AG left the accommodation and AG would be able to see her family with the carer’s knowledge.
AG and Mr Q were divorced in November 2023 according to Sharia law.
AG’s views and Mental Capacity
AG reported that she ingested bleach because she wanted to be heard. After the second occasion of ingesting bleach, AG told her solicitor that she did this because her family had told her boyfriend that she was married, and she feared he would break up with her. AG shared that she had been told what to say by her father and brother and disclosed that she had been slapped, locked in the house and had her mobile phone removed when her family discovered that she had a boyfriend.
AG told her social worker that she wished to wear western clothes rather than those chosen by her parents and told the court that she wanted her marriage to end.
In relation to her marriage to Mr Q, the court accepted the assessment of Dr Rippon, Consultant Psychiatrist, that AG did have the mental capacity to consent to marriage and did so also in 2019. Dr Rippon concluded that AG also had capacity in relation to residence, contact and sexual relations but not in relation to her capacity to conduct the proceedings in the court of protection, her care and support needs, or her finances.
The Social Worker’s Position
Ms S, the social worker, outlined her concerns about what she considered to be coercive and controlling behaviour of AG by her parents. Mrs S based this on evidence from her visits to and communications with AG in which AG’s mother and father had been heard instructing AG on what to say, family listening in on conversations and AG not being allowed to use her mobile phone. Mrs S noted that AG would say different things to her family and professionals, suggesting that she is unable to share her true feelings with her family. Mrs S felt she was reliant on AG’s boyfriend to obtain a true picture of what was happening. Mrs S felt that AG’s parents lacked understanding of AG’s care and support needs and reported that they gave conflicting accounts of how injuries had occurred. Ms S felt that there was a continued risk of AG being forced into another marriage by her parents.
The Learning Disability Nurse’s Position
Ms R, the Community Learning Disability Nurse, believed that AG’s relationship with her parents increases her anxiety, which in turn increases the risk of impulsive and self-harming behaviour. Ms R felt that AG’s parents lack understanding of her needs in relation to her mental health, and their approach makes it more difficult for AG to make capacitous decisions.
Mrs R has a shared cultural heritage with AG and speaks Urdu which she felt was helpful.
On the decision to move into the shared lived placement, which AG was deemed to have the capacity to make, Ms R shared that AG felt unable to tell her parents about her decision until after she moved and was distressed by their reaction.
Ms R considered that the care arrangements in place could amount to a deprivation of liberty.
AG’s Parents Position
Mr and Mrs G believed that AG wished to return home and wished for her to return home also. Mr and Mrs G felt that the social worker, Mrs S, was lacking in depth in her analysis of the cultural and religious considerations and that she encouraged AG’s relationship with her boyfriend. They believed that AG’s boyfriend was controlling and had encouraged AG to jump from the window. They maintained that AG wanted to get married to Mr Q and that she did not tell them that she wanted to end the marriage. Mr and Mrs G felt that the involvement of the local authority had caused a lot of stress and restriction on them and contributed to AG’s loss of mental capacity. They denied any coercion or that there were any issues around AG being spoken to alone. Mr G denied slapping AG but confirmed that he did take her phone for a limited time. Mr and Mrs G expressed a wish to see AG more and asked for a shared care arrangement to be considered.
Decision
Justice Theis acknowledged the love and care AG’s parents have for her but concluded that they have not been able to protect her from harm, and that their actions have had serious consequences for AG, increasing her risk to herself.
Due to the circumstances behind the marriage in 2019 being unclear, Justice Theis could not conclude that AG was forced into the marriage but felt there was evidence of family influence.
It was highlighted that there was a lack of assessment by the local authority in relation to the marriage. There was no risk assessment or exploration of the circumstances leading up to or following the marriage. Reassessments in response to changes were not considered and relevant guidance ‘The Right to Choose: Multi-agency statutory guidance for dealing with forced marriage’ was not followed.
A time limited extension of the interim Forced Marriage Protection Order (FMPO) was approved with further assessment of capacity and risk being required.
The submissions regarding deprivation of liberty were not accepted as AG was not under continuous supervision and control and could consent to living at the shared lives placement.
Inherent jurisdiction was invoked until December 2024 with an agreement of time limited contact with family to enable AG to retain her capacity.
Learning
This is a complex case and highlights the importance of:
- Completing the appropriate assessments;
- Referring to the guidance, in this case ‘The Right to Choose: Multi-agency statutory guidance for dealing with forced marriage’;
- Reassessing as the situation changes;
- Asking the relevant questions and ensuring adequate exploration of the circumstances; and
- Ensuring social workers have the relevant expertise or adequate supervision.
Useful tool
The judge proposed the following framework for when professionals are working with AG in relation to trips abroad. This may also be useful in similar cases to support with care planning for trips abroad.
PROPOSED TRAVEL GUIDANCE
- Where is it proposed that AG travels? Research the destination, travel options to get there, the facilities available there (including access to medical care), accessibility and transport options
- What are the dates of travel?
- Where is it proposed that AG will stay?
- Who will be travelling with AG?
- What care and support will be required during the stay?
- Who will provide that care and support?
- Consider writing and/or carrying a “travelling letter” which provides a brief description of AG’s needs and any diagnos(es) and the details of her doctor. If appropriate, include details of any difficulties that could occur and what assistance might be needed.
- Consider whether international roaming is available (so that AG can use her mobile phone on a foreign network) and ensure she has an adaptor so her mobile phone can be charged.
- What are the flight details? When contacting travel providers and airlines, clearly state any needs and any assistance that AG may require.
- What are the Visa requirements?
- What vaccinations are needed before travel?
- What medication is needed? Ensure there is enough medication for the trip and possible delays.
- Check that any prescribed medication can be taken abroad (some medication contains ingredients that are illegal in some countries). 1
- How will the trip be funded?
- How much money is needed to cover all costs?
- Who will provide assistance to AG with finances when abroad (as necessary)?
- What travel insurance is needed? Check that it covers the places that AG will visit, the duration of the visit and any planned activities.
- Is AG’s passport valid?
- Check whether the emergency contact details on the back of the passport have been completed.
- Is there an extra form of photo ID that can be checked?
- Consider any advice that has been provided by the Foreign, Commonwealth & Development Office (FCDO) regarding travel to the area chosen (and any safety and MRS JUSTICE THEIS Approved Judgment Re AG (Welfare: FMPO) security issues raised).
- Provide contact details for the nearest British embassy, high commission or consulate, or the FCDO in the UK.
- Consider what to do if AG goes missing abroad, including detail of how to report it to the police and how the FCDO can assist.
- Whether independent travel training can be given to AG before the proposed trip to maximum her independence and autonomy.
- Ascertain the wishes of AG and all those who should be consulted regarding the trip.
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