Re SK (Proposed Plaintiff) (an adult by way of her litigation friend AH) [2004] EWHC 32003 (Fam)

The applicant SK, a competent adult and British citizen, effectively ‘applied’ for declaratory relief through her litigation friend, a solicitor, acting for free, out of interest, taking the initiative on the basis of information received via the Foreign and Commonwealth Office.

The application was made without notice, neither SK nor anyone in her family knowing nothing of the proposed action, in circumstances where there was concern that SK was at risk of being forced into marriage against her will. Her family was from Bangladesh. SK was currently believed to be abroad and there was concern that she was being forcibly prevented from returning to the United Kingdom.

It was held that the court had inherent jurisdiction to grant declaratory relief in respect of competent adults who were physically deprived of the capacity to make their own decisions.  Notwithstanding that S was abroad, the court could make orders and give directions, including injunctive relief, designed to ascertain whether she had been allowed to exercise free will in decisions concerning her civil status and country of residence.

The judge was careful to distinguish between forced marriage and arranged marriage as a culture specific value. He said that there was a grey area in between, but that arranged marriage can become forced marriage, but forced marriage is always different to arranged marriage.
The judge made orders including a power of arrest to prevent threats, intimidation, harassment or violence, and against causing or permitting arrangements for any marriage until she had been interviewed by the Foreign and Commonwealth Office in Bangladesh.

After the bench orders had been issued, requiring the attendance of various relatives before the High Court, and a consular officer interviewed the young woman in Dhaka. The woman was allowed to return to the UK and made it clear that she was not in need of the further or any protection of the court.

Comment
This is another example of the Court’s being willing to intervene for reasons not of mental incapacity, in any condition or clinically related sense, but because of fear, duress or threat or intimidation. It was effectively an example of the use of habeas corpus, the ancient writ associated with the right to liberty.
The Rules of Court for Habeas Corpus state that the witness statement or affidavit required to get such an action underway, may be made by some other person on the applicant’s behalf, and that witness statement or affidavit must state that the person restrained is unable to make the witness statement or affidavit himself and for what reason.

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