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ECtHR decision brings forced marriage within Article 3 ECHR

Home » International Family » ECtHR decision brings forced marriage within Article 3 ECHR

ECtHR decision brings forced marriage within Article 3 ECHR

Rachel Cooper

In July 2019, Princess Haya Bint Hussein, estranged wife of Sheikh Mohammed Rashid al-Maktoum, Vice-President and Prime Minister of the UAE and ruler of Dubai, applied to the High Court for forced marriage protection orders (FMPOs) for her children, aged 11 and 7.

The UK government views forced marriage as a form of domestic violence.[1] Forced marriage is defined as a form of domestic violence in PD 12J of the Family Procedure Rules 2010. On 9 July 2019, the European Court of Human Rights held in the case of Volodina v Russia (Application No 41261/17) that domestic abuse falls within the description of inhuman or degrading treatment for the purposes of Article 3 of the ECHR. This brings forced marriage in line with female genital mutilation (FGM), already defined as a violation of Article 3 ECHR.

The decision in Volodina means that the family court when considering applications for FMPOs or FGMPOs will be required to evaluate the circumstances of the case, including the child’s welfare, through the prism of Article 3. Article 3 is an absolute right and the State, through the court, has a positive duty to prevent children being subjected to inhuman or degrading treatment. The need for the prism of Article 3 to be applied was highlighted by Hayden J in A Local Authority v M and N (Female Genital Mutilation Protection Order[2]where he noted that while the protective obligation imposed by Article 3 “is not raised expressly in the Statute but it does seem to me to be self-evidently intrinsic to it’.

Princess Haya in her FMPO applications has cited the treatment received by two of Sheik Mohammad’s older children, Princess Shasma and Princess Latifa as reasons for seeking protective orders and asking that the children be made wards of the court. Shasma is alleged to have been abducted from Cambridge. Latifa is alleged to have been abducted from a yacht off the coast of India. Both princesses are alleged to have been forcibly returned to Dubai against their will. Princess Latifa has alleged that Shasma has been heavily medicated since her return. Princess Haya is understood to have escaped to London after discovering her husband had imprisoned and tortured Princess Latifa.

FMPOs offer extra-territorial protection to children who are British nationals or habitually resident in the UK. FMPOs protect a child wherever he/she may be located internationally[3] and can relate to conduct outside England & Wales[4]. Where children are located abroad FCO co-operation is usually sought to assist with returning children to the UK[5]. Breach of a FMPO is a criminal offence with a maximum penalty of five years imprisonment and/or a fine.

The international facts of this case highlight that FMPOs and FGMPOs sit at the intersection of the family and immigration jurisdictions. It is clear that the family court is able to make orders independent of immigration considerations. However, the court has to-date stopped short of extending that power to bind the Secretary of State for the Home Department[6]. Whether the future the family court’s specific protective powers to safeguard a child at risk of extra-territorial forced marriage or FGM will create a unique function whereby a protective order should be made as a bar to deportation of a child continue to be considered by the President of the Family Division, Sir Andrew McFarlane, in a case brought by Suffolk County Council.

It remains to be seen how the decision in Volodina will impact future children law applications where there is an extra-territorial or internal risk of a forced marriage.

The case of Princess Haya and Sheikh Mohammad will be heard on 11 November 2019. Sheikh Mohammed has applied for the children’s return to Dubai.


Dr Bianca Jackson and Rachel Cooper will be giving a talk on ‘FGMPOs and FMPOs on the international plane’ at Coram’s International Children Law Conference on 6 November 2019. Tickets will be available soon. For details email theresa.yurkewich@coramchambers.co.uk.

[1] Re G [2012] EWCA Civ 1233 at [39]

[2] [2018] EWHC 870 (Fam); [2018] 2 FLR 1101 at [22]

[3] A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening)[2013] UKSC 60 at paragraph [60]

[4] 63(2)(a) of the Family Law Act 1996

[5] https://www.bailii.org/ew/cases/EWHC/Fam/2019/846.html

[6] R (on the application of Anton (Family)) v Secretary of State for the Home Department[2004] EWHC 2730 (Admin), [2004] EWHC 2731 (Fam), [2005] 2 FLR 818 at [33]; Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363


This post was written for Coram’s international children law blog and is featured in our September 2019 newsletter. To subscribe, email theresa.yurkewich@coramchambers.co.uk. Our International Children Law team has extensive experience in public and private child disputes. We act as family law barristers on a range of international children law matters, including relocation, Hague and non-Hague child abduction, international surrogacy, and cases of contested jurisdiction. 

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