Frequently Asked Questions on Forced Marriage and the new Legislation in Scotland
Q: What is the full title of the legislation?
A: The Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011
Q: What is the background to the legislation?
A: In 2009 the Scottish Government launched a consultation Forced marriage a Civil Remedy which asked whether we should have our own legislation to protect victims of forced marriage. That consultation was overwhelmingly in favour of legislation and that led in turn, in 2010, to the introduction of the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Bill.
This Bill was passed by the Scottish Parliament on 22 March 2011 and became the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act. This Act will provide a specific civil remedy for those threatened with forced marriage and those already in such a marriage. The Act received Royal Assent on 27 April 2011 and came into force on 28 November 2011.
Q: What are the main provisions of the legislation?
- To protect people from being forced to marry without their free and full consent
- To protect those who have already been forced into marriage without consent.
- To clarify the authority of the sheriff court for annulling such marriages
- To introduce Forced Marriage Protection Orders (FMPO) to protect people from being forced to marry or who have already been so
- To make it a criminal offence to breach a FMPO
- To enable Scottish Ministers to apply the provisions of part one of the Act to civil partnerships
- To require statutory agencies to respond appropriately
Q: Who can apply for a Forced Marriage Protection Order?
- Courts: the court itself is able to make a FMPO on its own initiative if a person at risk is involved in other proceedings and the court thinks that an order should be made to protect them.
- A victim or a "relevant third party" such as: a local authority, the Lord Advocate and any other person specified by Scottish Ministers, may apply without leave.
- Section 3 of the 2011 Act enables any person, with leave of the court, to apply for a FMPO. Section 3(3) of the 2011 Act sets out the criteria that the court must consider in deciding whether to grant permission for such an application.
However, the victim, or a "relevant third party" (RTP), namely a local authority, the Lord Advocate and any other person specified by Scottish Ministers, may apply without leave.
Local authorities will decide how best to act as a relevant third party applying for a FMPO under this provision as with orders under other legislation including for example, antisocial behaviour
Q: What will a Forced Marriage Protection order do?
- The Forced Marriage etc.(Protection and Jurisdiction) (Scotland) Act 2011 introduces a civil Forced Marriage Protection Order ( FMPO) which can protect adults, young people and children at risk of being forced into marriage and can offer protection for those who already have been forced into marriage.
- Clarify the extension to sheriff courts of the existing jurisdiction of the Court of Session in relation to the granting of declarators of nullity, both freestanding and those linked to or associated with FMPO applications;
- Confer on the Scottish Ministers a power, by order, to apply the forced marriage protection order regime to forced civil partnerships; and
- Allow third parties to make an application for a Forced Marriage Protection Order (FMPO) on behalf of a victim. This recognises that victims in many cases of forced marriage feel unwilling or unable to take action against perpetrators who may be members of their family.
Q: How long will a Forced marriage protection order last?
A: An FMPO will last as long as required. The court can order that the FMPO remains in force for a specified period of time, or no time can be set. If the FMPO is not time-limited, it will remain in force until the court recalls it.
Q: How will breach of an FMPO be dealt with in Scotland?
A: In Scotland, a decision was made to make breach of a Forced Marriage Protection Order an automatic criminal offence, to ensure that victims, who could be in very serious danger, can get help from the police immediately without having to go back to the court. This approach is consistent with the approach taken in the Domestic Abuse (Scotland) Act 2011 which made breach of a domestic abuse interdict a criminal offence.
Q: How is breach of a Forced Marriage Protection Order is dealt with in UK legislation?
A: Currently in England and Wales breach of a Forced Marriage Protection Order (FMPO) is not a criminal offence. If an English FMPO was issued by the court with an attached power of arrest, a police officer could arrest a person who they suspect is in breach of any provisions of the order. If the FMPO was issued without a power or arrest the victim would have to apply to the court for a warrant for arrest and for the person to be brought back to court for committal where the court will decide whether or not there was a breach, and if so, what punishment to administer for disobeying the order of the court.
Q: What is the difference between Scottish and UK legislation and developments in UK Government's approach to tackling forced marriage?
A: The Forced Marriage etc. (Protection and Jurisdiction)(Scotland) Act 2011 mirrors closely the UK Government's Forced Marriage (Civil Protection) Act 2007 apart from the action taken when a Forced Marriage Protection Order is breached.
Q: Will guidance be made available to support the legislation?
A: Both Statutory and Practitioner guidance that will support organisations to formalise their response to cases of forced marriage and advise them of their obligations under the legislation has been produced and will be made available in hard copy and on line.
Q: How will the effect of the legislation be evaluated?
A: A full evaluation of the effect of the legislation will be carried out after it has been in effect for at least a year to ensure that it is providing protection to those who need it. Data from that evaluation will inform any further thinking around forced marriage and ways in which to tackle it.
Q: Will there be a strategy to raise awareness of the legislation?
A: Commencement of the legislation will be supported through a programme of awareness raising for young people, their parents and their families understand a person's right, religious or legal, to choose their marriage partner. We are developing public education posters and leaflets that will raise awareness of the legislation and the support that is available for victims.
Q: Will there be any training for people who are responsible for protecting children and adults from the abuse associated with forced marriage?
A: Government will be tendering the work to develop and implement, with due consideration to relevant legislation, a programme of multi agency training to assist organisations to effectively identify forced marriage and support those affected.
Q: Who can be affected by forced marriage?
Both men and women are forced into marriage although most cases involve young women and girls aged between the ages of 13 and 30. However there is no "typical" victim of forced marriage.
- Of 1,735 contacts to the Forced Marriage Unit in 2010, 14 per cent involved a male victim and 86 per cent a female victim.
- There were 36 instances which involved victims who identified themselves as lesbian, gay, bisexual or transgender.
- There were 70 instances which involved people with disabilities (50 with learning disabilities, 17 with physical disabilities and 3 with both).
- Most reported cases in the UK so far have involved South Asian families (Pakistani, Indian and Bangladeshi). This partly reflects the fact that there is a large, established South Asian population here. However, there have been cases involving East Asian, Middle Eastern, European, Gypsy and Traveller and African communities.
- Some forced marriages take place in Scotland with no overseas element, while others involve a partner coming here from overseas or a British national being sent abroad.
- Some cases are immigration-related with victims forced to marriage family members in order to facilitate their entry to the UK.
Q: Is forced marriage the same as arranged marriage?
Forced marriage is different from arranged marriage. In an arranged marriage, 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.
In forced marriage, one or both spouses do not (or, in the case of children and some adults at risk, cannot) consent to the marriage and duress is involved.
Q: What is the prevalence of forced marriage in Scotland?
A: Many cases of forced marriage, as with domestic abuse generally, go unreported. Many of the families involved do not see the marriage as 'forced' and many victims are unwilling to speak out. With greater awareness of the help available, the number of cases reported is likely to increase.
- The Forced Marriage Unit deals with approximately 300 to 400 cases of forced marriage a year (469 cases in 2010). Until 2009, approximately ten per cent involved people from Scotland. In 2010, this percentage was significantly less at 2.7%. The likely reason for this is that Scottish victims are seeking advice and support from organisations closer to home, rather than contacting the London-based Forced Marriage Unit.
- There is no reliable source of information which captures the 14% of cases involving male victims of forced marriage. However, since we know that 20 cases involving female victims make up 86% of all cases, we can estimate that in 2010-11 there were at least four male victims.
- Evidence suggests that for people with learning disabilities, forced marriage may occur at a similar rate for men and women. Research also indicates that the forced marriage of people with learning disabilities is likely to be significantly under-reported and can differ from the way in which forced marriage presents generally.