The recent case involved J (the Protected Party) and his lack of capacity in deciding whether he could travel abroad with his family in order to enter into an arranged marriage and engage in sexual relations.

Background

J and his family were planning to travel to Afghanistan to visit their family who resided there. The reason for their travel was to visit family but to also enter into arranged marriages for both J and his sister. In 2022, J’s sister requested support in bringing J’s soon to be wife to the UK. However, a mental capacity assessment confirmed that J did not have capacity to enter into a marriage or have sexual relations.

The case

J’s family made an oral application in order to confirm that J was allowed to travel to Afghanistan with the family. The application was denied on the grounds that there had been a ‘Forced Marriage Protection Order’ placed on J. The Judge agreed to meet with J and collated oral evidence from J’s father, his social worker and J’s sister. The appeal confirmed that the decision would not be overturned due to the clear and significant risks for J and any other British nationals travelling to Afghanistan, this was in respect of the decision made by ‘The Foreign, Commonwealth & Development Office’ against travelling to and from Afghanistan which was targeted towards the general population.

The family of J had appealed the decision in reference to the decision failing to take J’s wishes and values into consideration and that the decision would go against J’s Article 14 rights. However, it was argued that the safety of J and his lack of capacity did not deem him able to engage in a marriage or sexual relations and therefore the decision was in his best interests.

 Conclusion

The Court upheld the decision against J travelling to Afghanistan for the arranged marriage. They had reviewed the risks involved in travelling to Afghanistan and the importance of travelling for J and his family in order to reconnect with J’s family. The Judge also concluded that J’s capacity could possibly be maximised with further education and that further decisions regarding travel should be dealt with in a pre-planned way in the future and would be further reviewed at the appropriate time.

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