Holman J's judgment ended by saying that the facts and circumstances of this case reveal or illustrate a grave weakness in the existing forced marriage protection order machinery as enacted in Part 4A. Forced marriages are a scourge, which degrade the victim and can create untold human misery. It is vital
that FMPOs have real teeth and that people bound by them, or having notice of them, appreciate that they are capable of being enforced and will be enforced even though the applicant young person may not seek enforcement himself or herself. The scope for psychological or other pressures in this field is obvious and is enormous. The judge sought, by his judgment, to encourage the relevant Departments of State to give urgent consideration to improving the effectiveness of forced marriage protection orders and the means of enforcement.
Breach of a FMPO is not a criminal offence though FMPOs will contain a power of arrest. Thus, orders must be enforced, if at all, by contempt of court proceedings. and such proceedings may be initiated by the party who obtained the order or by the Attorney-General (if the public interest requires him to intervene in order to enforce the order) or, in exceptional cases by the court itself. The court will act of its own volition where it is urgent and imperative to act immediately - Clarke v Chadburn [1985] 1 WLR 78.
Holman J's judgment offers good reasons why the Police should be permitted to apply to the court (para 24-26] but the judge had to operate within the law as he found it. At [27] the learned judge said: ' ... I am very clear that, unless and until Parliament decides to provide a proper statutory basis for them to do so, the police simply have no standing to, and cannot act as applicants to, apply for and (as they wish in this case) press for committal in these circumstances.'
It is worth noting that breach of a Non-Molestation Order (Part 4 of the Family Law Act 1996) is an offence. The non-criminality of breach of a FMPO (Part 4A of the Family Law Act 1996) therefore currently stands in stark contrast. However, at the time of this post, Parliament is in the process of legislating for new offences - see Part 9 of the Anti-Social Behaviour, Policing and Crime Bill. The Bill provides for an offence of breaching a FMPO (see Clause 103) and also an offence to force a marriage (Clause 104). These offences are to have heavy maximum sentences (5 years and 7 years respectively) when they are tried on indictment.
Links:
See the post of 9th June 2012 where the government's plans to criminalise breach of FMPOs was considered. A good article is at Family Law Week 13th September 2012 where barrister Charlotte Rachael Proudman considered Forced Marriage and the Criminal Law.
Telegraph 28th May - 16 year old 'forced to marry' despite protection order
Government - Forced Marriage
A good judgment.
ReplyDeleteWe have to keep our feet on the ground about forced marriages. If a young woman has nowhere else to go but is eighteen is it forced marriage to tell her that if she does not marry X she must move out? If it is then there has been a most extraordinary change to the law by the back-door – and I don’t think the parents could be restrained by FMPO from saying that and putting it into effect.
Or how about “marry X or your brothers and sisters and I will never talk to you again?” I defy anyone to draft a plausible FMPO to deal with that.
Or “marry X or we will leave you nothing”. You can’t stop them changing their wills and the Family Provision Act will only kick in when they die.
A better way forward would be to make clear that a marriage ceremony not carried out pursuant to the Marriage Act is without legal consequences, and is not even a void marriage; like a “divorce” in the UK not granted by a court of civil jurisdiction. Far too many Muslim “marriages” (and a few Hindu and a handful of Jewish ones) take place without notice and registration and although most of the cases are to the effect which I have suggested – they are called “non-marriages” – a few have gone the other way. If that were clearly set out to be the law a ceremony such as that in this case would not matter in the long run; although of course the Forced Marriage Prevention Act would have to be extended to cover all purported and pretended marriages as well as real ones.
A reading of section 63A (available via link in the post) shows that the court has discretion whether to issue an order and all circumstances have to be taken into account.
Delete'Force' is defined so as to cover psychological pressure etc and so it can take all sorts of forms - no doubt including the kind of threats you mention. Threats to be made homeless etc. can be highly potent.
The criminalisation of forced marriage will enable the use of threats short of actual violence to be dealt with. The new offences will be triable 'either way'. I am not so sure about that and, I think, would prefer them to be triable by the Crown Court. However, there may be some cases where the 6 months imprisonment maximum sentence in Magistrates' Courts might be thought to be sufficient.
Only certain County Courts have been allowed to deal with FMPO applications and therefore the judges involved obtain a certain deeper knowledge and expertise. It troubles me somewhat that, on the criminal side, the cases may be dealt with by any Magistrates' Court. I suspect that any cases dealt with at that level will end up before District Judges (Magistrates' Courts).
So it is your view that a parent can be ordered to go on housing an adult offspring as a term of an FMPO?
ReplyDeleteI doubt whether such an order would stand up on appeal.
I expressed no view on such a specific point. ALL the circumstances have to be considered when making an order in the first place and that must include the age of the alleged victim.
DeleteThere is no doubt that, in some instances, even adult victims require protection. That would take us into the realm of safeguarding procedures which local authorities have in place.
Yes, but I see no indication of an intention to change such fundamental laws of property and family relationships as that you don't have to house your adult offspring. A1P1?
ReplyDelete