Chapter 3: Understanding the issues around forced marriage
Understanding forced marriage
18. The Government regards forced marriage as a form of violence against women /gender-based violence and, when children are involved, child abuse. It is associated with other forms of domestic abuse and 'honour-based' violence. It can happen to both men and women although most cases involve younger women and girls aged between 13 and 30. However, there is no "typical" victim of forced marriage. Some are under 16 years old, although many are older. Some victims have a disability, some have young children and some are spouses from overseas.
19. The majority of cases of forced marriage reported to date in the UK involve South Asian families. This is partly a reflection of the fact that there is a large, established South Asian population in the UK. However, it is clear that forced marriage is not solely a South Asian problem and there have been cases involving families from East Asia, the Middle East, Europe and Africa. Some forced marriages take place in the UK with no overseas element, while others involve a prospective partner coming from overseas or a British citizen being sent abroad.
20. There is a clear difference between a forced marriage and an arranged marriage. In arranged marriages, the families of both spouses take a leading role in arranging the marriage but the choice whether or not to accept the arrangement remains with the prospective spouses.
21. In a forced marriage, one or both spouses do not (or, in the case of some adults at risk and children and young people, cannot) consent to the marriage and some element of duress is involved. Duress can include coercion by physical, verbal or psychological means, threatening conduct, harassment, threat of blackmail, use of deception and other means. It is also "force" to knowingly take advantage of a person's incapacity to consent to marriage or to understand the nature of the marriage.
22. Under Part 1 of the Act, a civil court may make an order for the purposes of protecting a person:
- from being forced into a ceremony of marriage or from any attempt to force the person into a ceremony of marriage, or
- who has been forced into a ceremony of marriage.
23. A person ("A") is regarded as being forced into a ceremony of marriage if another person ("B") forces A to enter into a ceremony of marriage without A's free and full consent. The ceremony can be religious or civil and it can take place anywhere. In addition, the ceremony does not need to be legally binding (as a marriage) under the law of Scotland or any other place.
24. The concept of force used in Part 1 includes coercion by any means (physical, verbal or psychological) such as threatening conduct, harassment or blackmail. It also includes knowingly taking advantage of a person's incapacity to consent to marriage or to understand the nature of marriage.
Motives prompting forced marriage
25. Parents, extended family and wider community members who perpetrate forced marriage often justify their behaviour as protecting the children, building stronger families and preserving cultural or religious traditions. They often do not see anything wrong in their actions. Forced marriage cannot be justified on religious grounds; every major faith condemns it, and freely given consent is a prerequisite of Christian, Jewish, Hindu, Muslim and Sikh marriages, as well marriage in other major religions.
26. Often parents and believe that they are upholding the cultural traditions of their home country, when in fact, practices and values there may have changed. Some parents come under significant pressure from their extended families to ensure their children are married. In some instances, an agreement may have been made about marriage when a proposed spouse was a very young child. Many young people live their entire childhoods with the expectation that they will marry someone their parents select - some may be unaware that they have a fundamental right to choose their spouse.
Forced marriage is an abuse of human rights
27. While it is important to be aware of the motives which drive parents, extended family members and others to force their children to marry, these motives should not be accepted as justification for denying them the right to choose their own marriage partner and enter freely into marriage.
28. In addition to the provisions of the Act, Appendix C identifies some international law principles which may be of relevance in this context. In particular, forced marriage may involve an abuse of basic human rights including a child's rights under the UN Convention on the Rights of the Child. is an abuse of children's rights under the UN Convention on the Rights of the Child ( UNCRC). It is also an abuse of the basic human rights of children, young people and adults, as set out in the European Convention on Human Rights and is directly contrary to the domestic laws of Scotland and the UK.
29. Some of the key motives that have been identified are:
- controlling unwanted behaviour, sexuality, sexual orientation or gender identity (including perceived promiscuity, or being lesbian, gay, bisexual or transgender) - particularly the behaviour and sexuality of women,
- controlling unwanted behaviour, for example, alcohol and drug use, socialising unchaperoned with, or simply speaking to, members of the opposite sex who are not family members, wearing make-up or behaving in what is perceived to be a 'westernised manner',
- preventing 'unsuitable' relationships, for example, outside the ethnic, cultural, religious or caste group,
- protecting 'family honour' or 'izzat' (see Appendix B) (for example this might be related to a victim disclosing rape or sexual abuse),
- responding to peer group or family pressure about conforming to expectations,
- attempting to strengthen family links,
- financial gain or obtaining financial security for the person with a learning disability,
- ensuring land, property and wealth remain within the family,
- protecting perceived cultural ideals,
- protecting perceived religious ideals,
- ensuring care for someone with learning/physical disability when parents or existing carers are unable to fulfil that role or because of mistrust of external social care,
- concerns that younger siblings may be seen as undesirable if older sons or daughters are not already married - this could include marrying off a young person with learning/physical disability because their unmarried status might be seen as a barrier to marriage for their siblings,
- assisting claims for UK residence and citizenship, and
- obtaining physical assistance or personal care for ageing parents.
30. Isolation is one of the biggest problems facing those trapped in, or under threat of, a forced marriage. They may feel they have no one to speak to about their situation. These feelings of isolation are very similar to those experienced by victims of other forms of domestic abuse and child abuse. In many cases an individual will not disclose fear of forced marriage. Therefore, someone who fears they may be forced to marry often comes to the attention of health professionals, police, social care services or education professionals for various behaviours consistent with distress.
31. Most cases that have been reported to the police have also included a level of collusion and planning, usually by way of a family or community meeting, to decide as to how to deal with the issue concerned. This reinforces the isolation that victims experience and the restricted options they face when trying to access help and support.
32. Victims may also be unable to seek help, because they are either imprisoned in their homes or abroad, their activities and contacts are closely monitored or their safety could be compromised by trying to access support and protection.
33. Those at risk may be reluctant to take legal action to protect themselves for fear of criminalising those involved, potential repercussions, including threats to their physical safety or child abduction, alienation of family and community and the stigma attached in involving their family and community; these issues will also be present for those who succeed in securing civil protection, and they may actually find themselves further at risk for having done so.
34. Young people forced to marry, or those who fear they may be forced to marry, are frequently withdrawn from education, restricting their educational and personal development. They may feel unable to go against the wishes of their parents and consequently may suffer emotionally, often leading to depression and self-harm. These factors can contribute to impaired social development, limited career and educational opportunities, financial dependence and lifestyle restrictions. Studies have shown that self-harm is significantly higher amongst Asian women than other groups and contributory factors include lack of self-determination, excessive control, weight of expectations of the role of women and concerns about their marriages.
35. A mental or physical disability or illness adds to a young person's, or an adult's, vulnerability and may make it more difficult for them to report abuse or to extricate themselves from an abusive situation. Their care needs may make them dependent on their carers.
Possible consequences of forced marriage
36. Women forced to marry may find it very difficult to initiate any action to bring the marriage to an end and may be subjected to repeated rape (sometimes until they become pregnant) sexual degradation and ongoing domestic abuse within the marriage. In some cases, they suffer violence and abuse from the extended family, often being forced to undertake all the household chores for the family. Victims frequently end up trapped in a relationship marked by physical and sexual abuse. The impact this has on children within the marriage is immense.
37. Children witnessing such abuse can be traumatised because witnessing persistent violence undermines children's emotional security and capacity to meet the demands of everyday life. Children's academic abilities can be affected. Witnessing domestic abuse as a child is associated with depression, trauma-related symptoms and low self-esteem in adulthood.
38. Some people may think that running away is their only option. For many young people, especially women from ethnic minority communities, leaving their family can be especially hard. They may have no experience of life outside the family and therefore, they do not know how, or where to access, personal and financial support, including information on the law and their rights, particularly in their own language if it is not English. They may be suspicious or fearful of engaging with organisations such as the police.
39. Most victims/potential victims contact police seeking safety and protection but see this as a temporary requirement as they hope that those closest to them, who they still love, will accept their decision and eventually agree reconciliation despite the treatment they have been subjected to. This often means that the services that can be offered such as relocation are not seen as viable options unless the victim has reached a point of desperation
that can be when they are at the greatest risk. The consequences for victims of forced marriage cannot be underestimated and effective management of the risk that exists for them must be of the highest priority for all service providers.
40. For many, finding accommodation for themselves and their children is very difficult - especially for those who do not have leave to remain in the United Kingdom and do not have recourse to public funds.
41. Living away from home with little support can make a victim more isolated, thus making it more likely that they will return to the abusive situation. In addition, leaving their family (or accusing them of a crime or simply approaching statutory agencies for help) may be seen as bringing shame on their honour and on the honour of their family in the eyes of the community. This may lead to social ostracism and harassment from the family and community. For many, this is simply not a price they are prepared to pay.
42. Those who do leave often live in fear of their own families, who will go to considerable lengths to find them and ensure their return. Families may solicit the help of others to find them, or involve the police by reporting them missing or falsely accusing the person of a crime (for example theft). Some families have traced individuals through medical and dental records, bounty hunters, private investigators, local taxi drivers, members of the community and shopkeepers or through National Insurance numbers, benefit records, school and college records. Sometimes having traced them, the family murders them (so called "honour killing").
43. Many girls and young women are withdrawn from education early. Some are taken and left abroad for extended periods, which isolates them from help and support - this limits their choices so that often they go through with the marriage as the only option. Their interrupted education limits their career choices. Even if they manage to find work, however basic, they may prevented from taking the job or their earnings may be taken from them.
44. This leads to economic dependence, which makes the possibility of leaving the situation even more difficult. Some may be unable to leave the house unescorted - living virtually under house arrest.
Difficulties faced when a forced marriage takes place overseas
45. For many, it may be their first experience of travelling overseas. If they are being held against their will and forced to marry, there are various difficulties they may encounter if they want to return to the UK. They may find it impossible to communicate by telephone, letter and e-mail. They may not have access to their passport and money. Women may not be allowed to leave the house unescorted. They may be unable to speak the local language. Often individuals find themselves in remote areas where even getting to the nearest road can be hazardous. They may not receive the assistance they expect from the local police, neighbours, family or friends. Some individuals may find themselves subjected to violence or threats of violence.
46. If a person is a British national and also holds the nationality of another country, they are considered to be a dual national. This may mean that, in the country of their other nationality, the authorities may view them as being solely or primarily nationals of that country and treat them accordingly. They may not recognise that the British Embassy or High Commission has any right to assist them or may not permit any assistance to be given. If the Foreign and Commonwealth Office considers that there is a special humanitarian reason to do so, it will consider offering assistance to dual nationals in the country of their other nationality. Forced marriage is one of those circumstances where such an exception may be made.
The legal position - domestic law
47. Although there is no specific criminal offence of "forcing someone to marry" in Scots law, conduct giving rise to a forced marriage could involve behaviour which may amount to another criminal offence such as assault.
48. There are also provisions in domestic law to protect children and deal with criminal behaviour such as child abduction, cruelty to persons under 16 (including neglect and abandonment) and physical punishment of children.
49. The Immigration legislation and rules also provide protection for children and young people. The age of entry into the UK for spouses, fiancé(e)s, civil partners unmarried or same sex partners is 18 and assisting in an unlawful entry is a criminal offence.
50. Sexual intercourse without consent is rape, regardless of whether this occurs within a marriage or not. The Sexual Offences (Scotland) Act 2009, contains provisions which criminalise people engaging in sexual activity with children under the age of 16, whether the conduct is apparently consensual or not. It is not a defence to these offences that the accused was married to the child or there was a lack of capacity to consent for whatever reason.
51. The Domestic Abuse (Scotland) Act 2011 provides that the breach of 'domestic abuse' interdict with a power of arrest is a criminal offence punishable by a fine or imprisonment or both.
52. Female Genital Mutilation ( FGM) is defined by the World Health Organisation as all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. FGM can be linked to forced marriage as it is a form of controlling women and girls and is sometimes followed by early or forced marriage. The Prohibition of Female Genital Mutilation (Scotland) Act 2005 makes it a criminal offence for a person to carry out the specified female genital mutilation procedures on another person, including children and young people.
53. Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 creates an offence of engaging in 'threatening or abusive behaviour'. Subsection (1) provides that it is an offence for a person to behave in a threatening or abusive manner where that behaviour would be likely to cause a reasonable person to suffer fear or alarm and he or she either intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm. Also section 39 of this Act creates an offence of 'stalking'.
54. There is a range of protective measures under legislation including the Adult Support and Protection (Scotland) Act 2007 , Adults with Incapacity (Scotland) Act 2000  and the Mental Health (Care and Treatment) (Scotland) Act 2003  which can protect adults at risk. In certain circumstances, the police can intervene to protect adults at risk. See more on adult support and protection on page 33.
55. For information about relevant Scottish legislation, terms and powers relating to child protection including emergency child protection measures and the Children's Hearings system, please see the Scottish Government's National Guidance for Child Protection in Scotland (2010) This document also has a section on honour-based violence and forced marriage.
56. In addition, the following civil remedies may offer some protection or assistance to an adult who is being, or has been, forced into a marriage:
- a common law interdict with power of arrest under the Protection from Abuse (Scotland) Act 2001,
- an interdict or non-harassment order under the Protection from Harassment Act 1997,
- a matrimonial interdict under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 with power of arrest under the 2001 Act (available within marriage, against the spouse only),
- an exclusion order under the 1981 Act (available within marriage, against the spouse only),
- a domestic interdict under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 with power of arrest under 'the 2001 Act' (available only to couples who are or were living together),
- section 38 & 39 of the Criminal Justice and Licensing (Scotland) Act 2010, amends and improves powers to protect those affected by abuse and harassment which is relevant to forced marriage,
- a declarator of nullity of marriage, and
Forced Marriage Protection Orders
57. Part 1 of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 empowers the civil courts in Scotland to make a forced marriage protection order ( FMPO) which can protect both adults and children at risk of being forced into marriage and can offer protection for those who already have been forced into marriage.
58. The provision in this Part are designed to enable the courts to tailor the terms of an FMPO to protect and meet the specific needs of victims of forced marriage or potential forced marriage. For example it might state that the protected person must be taken to a place of safety designated in the order, or that the protected person be brought to a court at such time and place as the court specifies; that any violent, threatening or intimidating conduct be stopped; that the protected person not be taken abroad; or that documents such as passports or birth certificates be handed over to the courts.
Relevant third parties
59. Section 3 of the Act enables any person, with leave of the court, to apply for an FMPO. However, the victim, a local authority, the Lord Advocate and any other person specified by order may apply without leave.
60. Local authorities will decide how best to deliver its role as a relevant third party applying for a FMPO under this provision as it does for orders under other legislation including for example, antisocial behaviour orders.
Breach of a forced marriage protection order
61. Breach of a FMPO is a criminal offence and is punishable by imprisonment for up to 2 years and/or a fine. The police may arrest without warrant any person who they reasonably believe is committing or has committed a breach of a FMPO.
62. As with any other civil order, the applicant or the protected person would be the person who would either go to court or report the breach to the police. However, any person including, for example, a friend or relative of the protected person (even if not directly affected by the order) could report a breach of a FMPO to the police for investigation.
Potential warning signs or indicators
63. Individuals facing forced marriage may appear anxious, depressed and emotionally withdrawn with low self-esteem. They may come to the attention of professionals for a variety of reasons, some of which are described in the diagram opposite. Whilst the factors set out in this diagram may be, collectively or individually, an indication that someone is facing forced marriage, it should not be assumed that it is forced marriage simply on the basis that someone presents with one or more of these warning signs. These warning signs may indicate other types of abuse that will also require a multi-agency response. These indicators are not meant to be exhaustive.
64. There have been occasions when women have presented with less common warning signs. For example, with hair having been cut or shaved as punishment for disobeying or "dishonouring" her family; or girls being taken to the doctor to be examined to see if they are virgins. Some women have presented with symptoms associated with poisoning.
65. In certain communities, women undergo female genital mutilation ( FGM) before being able to marry - usually this is performed during childhood but there have been reports of young women undergoing FGM just before a forced marriage. FGM is illegal in Scotland as well as in the rest of the UK and it is also a criminal offence to take someone overseas for the purposes of FGM.
The list of warning signs is not exhaustive. The lists are inter-linked - do not simply focus on the list which seems most relevant to your area of work.