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21.Nov.2009

Local authorities are now able to apply for a forced marriage protection order without first requiring leave of the court, writes Louise McCallum.

The Forced Marriage (Civil Protection) Act 2007 came into force on 25 November 2008. The legislation inserts a new Part 4A into the Family Law Act 1996, adding new sections 63A to 63S.

On 1 November 2009, local authorities were designated a “Relevant Third Party”: they may now apply for a Forced Marriage Protection Order (FMPO) on behalf of a victim without first requiring leave of the court. Alongside this change, new guidance has recently been issued to local authorities by the Ministry of Justice.  

What is a forced marriage?

The term “marriage” includes religious and civil ceremonies, whether or not legally binding: s63S. The marriage concerned may be outside England and Wales.

A person (‘A’) is forced into marriage if another person (‘B’) forces A to enter into a marriage (whether with B or another person) without A’s free and full consent: s63A(4). The force therefore need not come from the intended spouse. Force can include coerce by threats or other psychological means: s63A(6). Victims of forced marriage often experience forms of emotional blackmail.  

The conduct of the person ‘B’ which forces the person to be protected (PTBP), ‘A’, to marry, could be directed against A, B or another person entirely: s63A(5).  This definition reflects common scenarios in cases of forced marriage: a family member may threaten to harm themselves if the intended union does not take place or threats might be made to harm a loved one of the PTBP.  

What is a FMPO?

A court may make a Forced Marriage Protection Order (“FMPO”) for the purposes of protecting:
a)a person from being forced into a marriage or from any attempt to be so forced; or
b)a person who has been forced into a marriage (Section 63A).

The court may therefore make a FMPO to prevent an apprehended forced marriage, or to initiate practical assistance to a victim where the marriage which has taken place.

In deciding whether to make a FMPO, and the nature of the order, the court will have regard to all the circumstances, including the need to secure the health, safety and well being of the PTBP: s63A(2).  The court must in particular have regard to the wishes and feelings of the PTBP, so far as they are reasonably ascertainable and in light of their age and understanding: s63A(3).

What may be the terms of a FMPO?

A FMPO may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate for the purposes of the order: s63B(1).  The terms of the order may seek to control conduct within and outside England and Wales: s63B(2).

Common prohibitive orders would include forbidding the respondent/s from removing the PTBP from the jurisdiction, applying for a passport/travel document for the PTBP or entering into any arrangements in relation to the engagement/marriage of the PTBP.  It is also common for FMPOs to include standard non-molestation clauses (which may also seek to control behaviour outside the jurisdiction).  

Orders requiring action on the part of the Respondent/s may include surrendering the passport of the PTBP, returning them to the jurisdiction of England and Wales and/or allowing the PTBP to be interviewed by a member of the British High Commission.

These are only examples, however. The legislation intends that the FMPO be flexible so as to accommodate the circumstances of each case. The court may include such other terms as are considered appropriate. Provision will often be made for disclosure of the FMPO to the Foreign and Commonwealth Office/Forced Marriage Unit.

Against whom may a FMPO be made?

The legislation is drafted so as to reflect the fact that there are often multiple perpetrators in forced marriage cases. FMPOs can be made against named respondents directly concerned in the force/attempts to force.  

Further, orders can be made against named respondents who may become involved in ‘other respects’: s62B(2)(b).  Involvement in ‘other respects’ includes aiding, abetting counselling, procuring, encouraging or assisting another person to force/attempt to force a person into marriage, or conspiring to do so: s63B(3).

Orders may also be made against ‘other persons who are, or may become, involved in other respects as well as respondents’: s63B(2)(c). Thus, unusually FMPOs can be directed against unnamed persons. A blanket order could, for example, be made prohibiting any person from facilitating arrangements for the marriage of the PTBP.  

Ex parte orders and powers of arrest

Orders can be made ex parte where the court considers it just and convenient to do so: s 63D(1).  Section 63D outlines the circumstances which the court will consider in determining whether to make a FMPO without notice. Data collated as of the end of October 2009 indicates that half of all FMPOs made thus far have been made firstly without notice being given to the respondent/s.

A power of arrest may be attached to the FMPO. In determining whether a power of arrest should apply, the court will distinguish between orders made inter partes and ex parte: see s63H for details. For any power of arrest to be attached, the court must consider that the respondent has used or threatened violence against the PTBP or otherwise in connection with the matters being dealt with by the order: s63H(1)(b) and (3)(b).  

Who may apply?

The PTBP may of course apply as may any other person with leave of the court: s63(2)(a) and s63C(3). In addition, the legislation creates a new category of applicant who may apply on behalf of the victim without leave of the court: the 'Relevant Third Party' (s63C(2)(b)). A Relevant Third Party is a person specified, or falling within a description of persons specified by the order of the Lord Chancellor.  

Relevant Third Party: Local Authorities

On 1 November 2009, local authority applicants were granted the status of Relevant Third Party ('RTP') through the Family Law Act 1996 (Forced Marriage)(Relevant Third Party) Order 2009 SI 2009/2023).  Local authorities are the first to be granted this status.  

An application could be made by a local authority on behalf of the PTBP without their knowledge or consent (for example if they had been taken out of the jurisdiction for the purposes of a forced marriage).  

The application form FL401A has however been amended such that a local authority applicant must still state within the form what they know of the circumstances of the PTBP and their wishes and feelings. Whilst local authorities no longer need leave, the court will remain anxious to ensure that the application is in the best interests of the PTBP and would not be contrary to their own wishes.

Considerations for local authority applicants

There are a number of key documents to which local authority legal practitioners should have regard as soon as they are alerted to a potential case of forced marriage:

a) The Right to Choose: Multi-Agency Statutory Guidance for Dealing with Forced Marriage (http://www.fco.gov.uk/resources/en/pdf/3849543/forced-marriage-right-to-choose);

b) Multi-Agency Practice Guidelines: Handling Cases of Forced Marriage (June 2009) (http://www.fco.gov.uk/resources/en/pdf/3849543/forced-marriage-guidelines09.pdf);

c) Ministry of Justice guidance to local authority applicants published in October 2009: Forced Marriage (Civil Protection) Act 2007, Guidance for local authorities as relevant third party and information relevant to multi-agency partnership working (http://www.justice.gov.uk/guidance/docs/forced-marriage.pdf);

d) For procedure, see Rules 3.25 to 3.36 of the Family Proceedings Rules 1991.

The recent guidance to local authority applicants ('RTP Guidance') is intended to provide additional advice and support to frontline local authority employees when they are considering making an application as a RTP. It should be used by all caseworkers and legal advisers within local authorities who work to safeguard children and young people, and protect vulnerable adults from abuse. As well as children and adults social care teams, those working in education and housing should be made aware of the guidance.

The RTP Guidance provides crucial advice, including the need to be ever mindful of the PTBP's safety.  Emphasis is given to the 'one chance rule': a practitioner may have only one chance to speak to a potential victim of forced marriage.   

The RTP Guidance emphasises that applications for a FMPO by a local authority should be made via its legal department, in close consultation with the relevant frontline practitioner. These are not applications to be pursued by caseworkers and social workers themselves.  

Local authority frontline practitioners will take advice from their legal department as to whether a FMPO offers the best remedy. In cases concerning children consideration will be given to the issuing of applications for public law orders.   

Local authority applicants will also wish to discuss a case with the Forced Marriage Unit (0207 008 0151).

A spike in cases?

Up to the end of September 2009, 72 orders had been made under the new legislation, in excess of Ministry of Justice expectations. It is likely, however, that this represents but a fraction of the true scale of victims. It will be interesting to consider at the time of the Act's second anniversary what impact the role of local authorities as a RTP has on the level of applications.

Louise McCallum is a family law barrister practising at Zenith Chambers in Leeds. She is co-author of “Forced Marriage: A Special Bulletin”, which was published in September 2009 by Jordans Publishing

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20.Nov.2009

The Autism Act 2009 is the first disability-specific legislation passed by Parliament. David Knifton looks at the duties it will impose on local authorities.

The Autism Act 2009 received Royal assent on 12 November 2009 and comes into force on 12 January 2010.  The result of a campaign led by the National Autistic Society (NAS), it is the first disability-specific legislation to be passed by Parliament.  Essentially, it introduces an adult autism strategy, backed up by the imposition of statutory duties on local authorities, with the aim of improving outcomes for adults with autism in England.  

The Act
The Act imposes a duty on the Secretary of State for Health to prepare and publish, by 1 April 2010, “the autism strategy” for meeting the needs of adults with autism by improving the provision of relevant services by local authorities and NHS bodies.  The strategy must be kept under review and may be revised.  The Secretary of State must also, by 31 December 2010, issue guidance for the purpose of securing its implementation.  

Local authorities and NHS bodies must act under such guidance, which will be kept under review, having regard to the extent to which it has been effective in securing the implementation of the autism strategy.  In particular, the guidance must cover:

• Providing services for diagnosing autism in adults;
• Identifying adults with autism;
• Carrying out needs assessments for adults with autism;
• Planning appropriate services to young people with autism as they move from children’s to adults’ services;
• Other planning to provide relevant services to adults with autism;
• Training of staff who provide such services; and
• Local leadership in relation to such provision.

Background
Autism is a life-long developmental disability that affects the way a person communicates with and relates to other people, and makes sense of the world around them.  Whilst the condition covers a broad spectrum, those affected share the triad of impairments, namely difficulties with social interaction, social communication and social imagination.  Research has shown that 1 in 100 children have autism, from which it is estimated that more than 300,000 adults in England have the condition.  

Adults with autism have very different and individual needs, but face many barriers in trying to access the range of services required to meet those needs.  Many people with autism spectrum disorders are undiagnosed, isolated, misunderstood and unable to access relevant support.  In particular, more than half of adults with autism do not have an accompanying learning disability or mental health problem, yet services are often provided by learning disability or mental health teams.  

This means that many - particularly those with high functioning autism or Asperger syndrome - slip through the net in service structure.  Recent research by the National Audit Office found alarming gaps in training, planning and provision that not only dramatically reduced quality of life for adults with autism, but wasted public money through inefficiency.  It concluded that failing to invest in autism provision is a false economy.  In particular, identification and support of adults with high functioning autism or Asperger syndrome would become cost neutral in the medium term, enabling such individuals to live independently in the community.  

NAS research in 2008 revealed that 63% of adults with autism do not have enough support to meet their needs, 61% rely on their families for support, more than 40% live with their parents and only 15% are in full time employment.  Support was badly needed to enable them to find a job and access the benefits they needed to live on.  

Autism Strategy and Guidance
The Government is currently considering more than 1,000 responses to the consultation on the autism strategy.  The consultation on the statutory guidance will take place during 2010.  The guidance is likely to cover issues such as social inclusion, diagnostic services, education, housing provision, access to training and employment, and awareness-raising and training.  

Local authorities, in conjunction with primary care trusts, will need to establish regional and local autism planning groups in order to:

• Collect and analyse data from a range of sources on the numbers of adults with autism in their area.  Better data and information about such adults will help long-term planning.
• Actively seek to assess the needs of adults with autism, particularly those outside current eligibility criteria, in order to identify gaps in provision and priorities for service development.
• Work together with other agencies, including health authorities and the voluntary sector, to understand the needs of people with autism and look for innovative and practical ways to support them.
• Provide personalised, autism-specific services, including specialist supported living services for young people making the transition to adulthood, social skills training and befriending schemes.  Reducing arrangements for care and support out of area, in favour of greater local provision, is likely to provide better value for money and improved access.  Simple, cost-effective preventative services such as social skills training can make a big difference to the lives of adults with autism, helping prevent their needs reaching a point where more serious intervention, or expensive crisis support, is needed.
• Establish strong leadership at local level, to co-ordinate services and ensure that the complex needs of adults with autism are met.
• Advertise available autism services and how they can be accessed (for example, by running “one stop shop” resource centres).

Sanctions
Crucially, the Act imposes a duty on local authorities, in the exercise of their social services functions, to act under guidance issued by the Secretary of State.  A failure to do so would be enforceable by judicial review, and might conceivably expose a local authority to an action for breach of statutory duty.  

Conclusion
Whilst many local authorities have already implemented strategies in line with those set out above, the Act provides an important wake-up call to those that have not.  The autism strategy presents both a challenge and an opportunity.  It will require investment and training, innovation and co-operation, leadership and planning.  But above all, it will require a commitment to understanding the particular needs of people with autism, and the will to ensure that they are met.  

David Knifton is a barrister at Exchange Chambers in Liverpool and Manchester

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30.Jun.2025

The Local Government and Social Care Ombudsman has found fault with how Somerset Council withdrew an elderly woman’s care package without properly considering how her needs could be met until her land was sold.

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30.Jun.2025

An investigation by the Local Government and Social Care Ombudsman has found that a decision by Sheffield City Council that a man had deprived himself of assets for the purpose of reducing his care fees, was “not supported by all the available evidence”.

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27.Jun.2025

The Local Government and Social Care Ombudsman has upheld a complaint from a private landlord that the London Borough of Haringey took too long to end the tenancy of one of its tenants, who had lost the capacity to make that decision for herself, resulting in the landlord losing out on housing benefit for many months.

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26.Jun.2025

The Local Government and Social Care Ombudsman has issued guidance to officers in local councils to improve their practice when dealing with people who need housing adaptations, often through what are called ‘Disabled Facilities Grants’ (DFGs).