FORCED MARRIAGE: WHERE ARE WE NOW?
Forced marriage has historically been dealt with through the inherent jurisdiction of the High Court, where injunctions have been granted to prevent a person from entering into marriage without their consent.
However, this system did not meet the growing demand for protection. In 2005, a joint Foreign and Commonwealth Office and Home Office unit was created to tackle the increased number of cases. The forced marriages unit - the ‘FMU’ was therefore created. The FMU works both within the UK and abroad. Within the UK, trained professionals will offer assistance to victims who have been forced into a marriage or are at risk of being forced into a marriage and third parties who are worried about a victim. Out of the UK, the FMU work with embassy staff to rescue victims who have been taken overseas and are at risk of being forced into a marriage. In 2014, the Unit handled 1300, approximately 5 cases a day.
FORCED MARRIAGE PROTECTION ORDERS
The work of the FMU in part led to the creation of Forced Marriage Protection Orders, introduced in November 2008 by the Forced Marriage (Civil Protection) Act 2007. For the first time, there was a clear procedure for victims to secure injunctive relief from the family courts. The Act allows a potential victim to make an application with or without notice for a Forced Marriage Protection Order (FMPO). An FMPO can include prohibitions, restrictions or requirements to protect a victim from a spouse, family member or anyone involved. Involvement can include aiding, abetting, counselling, procuring, encouraging, or assisting another person to force or attempt to force a person to marry.
Other than to prevent a forced marriage from occurring, the court can also make orders such as to hand over passports, to stop intimidation and violence, to reveal the whereabouts of a person and to stop someone from being taken abroad. FMPOs can last for a specified time or if the court so desires, set the FMPO for an indefinite period i.e. until varied or discharged. The order can also relate to conduct either within or outside of England and Wales.
An FMPO can also be applied for by any relevant third party or any other person who has been given leave from the court. In deciding whether to make this order the court ‘must have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected’ and the person’s ‘wishes and feelings as the court considers appropriate in the light of the person's age and understanding’ [s63A].
Although this is a civil order, the court must attach a power of arrest, ‘unless it considers that in all the circumstances of the case, there will be adequate protection without such a power’. Breach of an FMPO was a civil offence but since June 2014, it has become a criminal offence (see below).
Since 2008, when FMPO legislation was introduced, 861 orders have been issued, according to the Ministry of Justice (MoJ).
CRIMINALISATION OF FORCED MARRIAGE
After a period of consultation on criminalisation of forced marriage, on 16th June 2014, the Anti-social Behaviour, Crime and Policing Act 2014 came into force, criminalising forced marriage.
Section 121 of the ABCP Act introduces two offences such that a person commits an offence if a) he or she coerces a person into marriage or b) practices any form of deception with the intention of causing another person to leave the United Kingdom intending for a forced marriage to take place.
Section 121(2) states that if a victim lacks capacity to consent to marriage, the offence could be capable of being committed by any conduct carried out for the purpose of causing the victim to enter into marriage, irrespective of whether the conduct amounts to violence, threats or any form of coercion.
Section 121(3) makes the deception of the victim to entice them out of the country a criminal offence in itself. Previously, this deception would often go unpunished because it did not constitute a criminal offence in itself, and the authorities would not be able to prosecute extended family members in another jurisdiction. This is an important deterrent step in respect of family members who hitherto might have been willing to lie to victims in the belief that they would be 'immune' from any prosecution.
Both section 121(1) and (3) carry a maximum penalty of twelve months imprisonment on summary conviction, or seven years on indictment. The fact that both offences attract the same sentence is an important message – lying to get a victim out of the country is taken as seriously as the violence used to force that victim to enter into matrimony.
There is no need for the existence of a FMPO for the offence to be committed – these offences stand independent of the family jurisdiction.
Section 120 of the Act also amends Part 4A Family Law Act 1996, introducing section 63CA which brings in a new offence of breaching a FMPOE, carrying a maximum penalty of five years imprisonment. Section 63CA(2) ensures that a person is guilty of an offence only in respect of conduct engaged in at a time when the person was aware of the existence of the order.
AWARENESS
The provision of ‘awareness’ should encourage practitioners to ensure that when an FMPO is made, it is properly translated, that affidavits of service are detailed and that and an appropriate interpreter is present, because successful prosecution of a breach may depend on that process. Under section 120 (3) and (4), a person who has breached an order could be dealt with in the family jurisdiction for contempt of court or charged under the criminal jurisdiction (but not both). The decision as to which course of action to take is likely to be influenced by the victim.
Broadly speaking, there was support for the criminalisation of forced marriage, which perhaps suggests confidence the authorities have in their ability to support victims through the process and to meet their needs. However, notwithstanding the support, many practitioners and civil society groups expressed concern that such criminalisation would prevent victims coming forward for fear of their own family members being criminally prosecuted or other repercussions. Whether this becomes an issue will be reliant upon how far the police, social services and lawyers work together to make sure the legislation does not ‘compel’ victims to make accusations against family members, and ensures that they have real input into whether breach of an order is dealt with in the family or criminal courts.
In June 2015 a 34-year-old man became the first person in the UK to be prosecuted under forced marriage laws. He was jailed for 16 years after admitting making a 25-year-old woman marry him under duress last year.
On 12 November 2015, 5 St Andrew’s Hill Chambers will host a seminar, “Forced Marriages; different perspectives”. Click on the link to register in order to attend or please contact clerks@5sah.co.uk for further information.