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3 Why We Are Consulting
Forced Marriage: A Wrong Not A Right Consultation
Between September and December 2005 the UK Government and the Scottish Executive conducted a joint consultation, Forced Marriage: A Wrong Not a Right. The consultation explored the advantages and disadvantages of introducing a specific criminal offence relating to forced marriage.
The consultation report was published in June 2006. A total of 157 responses were received from organisations and individuals across the UK, with the highest number of responses coming from London and Scotland. Most of the responses were from women's groups and domestic violence forums but responses were also received from children's and young people's services, health services, religious and minority ethnic groups and services, local government, solicitors and legal groups, the police and individuals.
The consultation yielded mixed results: 39.4% of Scottish respondents were against the creation of a new offence, while 36.4% were in favour. Overall, the majority of respondents felt that the disadvantages of creating new legislation to make forced marriage a criminal offence outweigh the advantages. It was feared that the creation of a specific criminal offence could be perceived as the development of a 'minority law', and could lead to racial segregation and tension.
It was also thought that the risk of prosecution could result in victims becoming isolated, and make it harder for them to eventually reconcile with their families. Furthermore, at that time only 18% of Scottish respondents felt that the cost of creating new legislation could be justified. Instead it was suggested that it would be more useful to spend money on non-legislative measures, such as better education and public awareness campaigns, as well as improving support services for victims.
As a result of the consultation responses both Scottish and UK Ministers decided not to legislate at that time.
Given this and the changes to civil law in England and Wales, the Scottish Government has decided to seek views on whether Scotland should introduce civil legislation on forced marriage.
The key question this consultation asks is whether current legislative protection in Scotland is sufficient, and to assist respondents the next sections detail the change in law in England and Wales and the law in Scotland as it currently stands.
The UK Government's Forced Marriage (Civil Protection) Act 2007
In March 2007 the UK Government decided to support a forced marriage Private Members Bill brought by Lord Lester of Herne Hill.
The Forced Marriage (Civil Protection) Act 2007 received royal assent on 26 July 2007. The aim of the legislation is to provide civil remedies to those at risk of forced marriage, as well as those who have already been forced into marriage. It is hoped that the approach of the Act, in using civil, rather than criminal law provisions will encourage victims to seek protection because it will not involve reporting family members to the police.
Under the Act, a person who has been forced into marriage or is at risk of being forced into marriage may apply to the court for a Forced Marriage Protection Order. Through such an order, the court can require those responsible for forcing another person into marriage to stop or change their behaviour. An order can prohibit a person from doing something and may also positively require a person to do something. The courts have a wide discretion regarding the terms of the order, thus enabling them to respond flexibly and effectively to the circumstances of individual cases.
The courts are also able to attach powers of arrest to orders, so that if someone breaches an order they can be arrested and brought before the court. A power of arrest may be attached where there has been violence or threats of violence, or where there is a risk of significant harm to the victim.
Failure to comply with an order may be punishable by imprisonment.
The Act 2007 also provides for the UK Government to issue statutory guidance setting out the responsibilities of all agencies dealing with forced marriage issues.
Third parties
One particularly significant feature of the Act is that it enables third parties to make an application for a Forced Marriage Protection Order on behalf of the victim. This recognises that victims may feel unwilling or unable to take action against perpetrators who may be members of their family.
There are two ways in which third parties can raise actions. First, anyone can act as a third party with the leave of the court, and the court takes into account factors such as their connection with and knowledge of the situation and the wishes and feelings of the victim. Secondly, "relevant third parties" specified by the Lord Chancellor can raise actions without the court having to consider other factors.
The UK Government's Ministry of Justice conducted a consultation between January and April 2008 focusing on the role of the relevant third party asking who should act and how best it should be implemented. A response to the consultation was published on 13 November 2008 and is available at: www.justice.gov.uk/publications/cp3107.htm
Features of the Forced Marriage (Civil Protection) Act 2007
The Forced Marriage (Civil Protection) Act 2007 introduces a number of unique features to England and Wales legislation on forced marriage which currently have no equivalent in Scotland. It does so by inserting various new sections into the Family Law Act 1996:
- Forced Marriage Protection Orders may positively require a person to do something (new section 63B (1) (a) of the 1996 Act), unlike Scottish common law interdicts, which can only be used to prohibit specific actions. The Explanatory Notes to the 2007 Act provide an example of someone being positively required to produce their passport.
- As detailed above a third party may apply for an order on behalf of the victim (section new 63C (2) and (3)).
- Orders can be directed against anyone aiding, abetting, encouraging or conspiring with the principal perpetrator (new section 63B (2) and (3)).
- A power of arrest can be used against anyone the police reasonably suspect is breaching the terms of the order, not just against the person against whom the order is primarily directed (new section 63I).
- Where no power of arrest is attached, either the person protected by the order, the person who applied for the order, or another person with the leave of the court, may apply to the court for an arrest warrant if they believe the order has been breached (new section 63J).
- Statutory guidance will be issued regarding the effect of the forced marriage legislation, and about forced marriage generally (new section 63Q). The UK Government has recently consulted on this guidance (the consultation ended on 15 October) seeking views on the statutory requirements that agencies must have regard to, building on their existing responsibilities to protect children and vulnerable adults.
All the civil remedies currently available in Scotland are primarily prohibitive and must be sought directly by the victim, whereas the English and Welsh legislation allows orders which positively require people to do things, as well as allowing third parties to apply for orders on the victim's behalf. Powers of arrest in Scotland are also more limited than those provided for under the new legislation in England and Wales because they can only be used against the person against whom an interdict is obtained, not against third parties as is possible with Forced Marriage Protection Orders in England.
Case study A 17-year-old girl was taken to Pakistan for a family holiday. However, as soon as she arrived she was told that she was to be engaged to her cousin. She tried to reason with her parents as she didn't want to be engaged to someone she had never met and wanted to have a career first before thinking about marriage. The engagement did take place but she was allowed to return to the UK to go to university. At the end of her degree, due to a family tragedy she had to go back to Pakistan with her parents. When she was there she was told that she was to be married at once to her fiancé and would not be allowed to come back to the UK until she had signed the marriage documents. This emotional battle went on for five weeks and eventually, when the girl was exhausted and tired of being cursed by her family as a cause of dishonour and disgrace, she agreed to sign the marriage documents but only if she was allowed to go back to the UK. She thought that signing a document wouldn't mean anything; unfortunately her parents registered the marriage for the purpose of a spouse visa. When she returned to the UK, she refused to apply for the spouse visa, left her family and started her career. Eventually after three years of emotional blackmail and threats her parents finally accepted that it had been wrong to force her to marry and said they would try to help her to get the marriage annulled. At this point she contacted Hemat Gryffe Women's Aid in Glasgow to find out how to proceed with the annulment. They contacted the UK Government's Forced Marriage Unit, who confirmed that an annulment was possible and referred her to an immigration lawyer to start proceedings. This was a painful process forcing her to revisit her parent's emotional blackmail, abduction abroad and forced marriage. In spite of their actions she was worried that her parents might go to jail if she went through with the annulment. She had to pay legal fees as she was working, however, while the case was in progress, she lost her job and had to apply for legal aid. In the meantime her "husband" moved from Pakistan to Dubai. She is trying to locate him and until she does the annulment cannot be finalised. source: Hemat Gryffe Women's Aid |
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