Saturday 9 June 2012

Forced Marriage

The government has announced that it wishes "forced marriage" to become a criminal offence - see No.10 Announcement and Home Office.

A forced marriage is one in which one or both spouses do not (or, in the case of some vulnerable adults, cannot) consent to the marriage but are coerced into it. It is not an arranged marriage. In an arranged marriage both parties have consented to the union but can still refuse to marry if they choose to.

The decision to create a specific offence of forced marriage follows a 12 week consultation which took views from the public, victims, charities and frontline agencies.  The Home Office consultation on forced marriage  (here) received 297 responses including 175 from the public - (here).  However, a response from
Karma Nirvana took into account some 3000 responses which that body had received as a result of their campaign.  The new law will be accompanied by a range of measures to increase protection and support for victims and a continuing focus on prevention.

The idea of creating this offence has not been universally welcomed.  Some consider that criminalisation will drive things underground - (for example, Manchester Councillor Sameem Ali - herself a victim of forced marriage - see The Guardian 8th June) - whereas others see criminalisation as essential - (for example, Ajmal Masroor - who was able to avoid a forced marriage arranged for him The Guardian 8th June).

Many of those in support felt that it would act as a deterrent and deliver a strong message that forced marriage would not be tolerated and that perpetrators would be prosecuted.   It was argued that this approach would empower victims to come forward and report incidents of forced marriage because the issue of victims actually agreeing to marry under duress should not be under-estimated.  Those against criminalisation felt that it could drive the issue further underground, as victims would be less inclined to want to come forward if it would ultimately lead to members of their family being imprisoned. There were concerns regarding the issues of intent and the ‘burden of proof’ and that it could result in victims being taken overseas for the purpose of marriage at a much earlier age.

Details of the proposed legislation are awaited.  When the proposals appear they will need examination to see whether the legislation will be really effective.

Existing civil remedy:

In 2007, the Forced Marriage (Civil Protection) Act 2007 inserted Part 4A into the Family Law Act 1996 to create Forced Marriage Prevention Orders (FMPO).  The FMPO came into force on 25th November 2008 and 414 FMPOs were issued up to the end of 2011 - (The Independent 2nd April 2012).

The government's Forced Marriage Unit offers help.  In 2011 there were 1468 instances where the FMU gave advice or support related to a possible forced marriage.

UK Government signs up to Council of Europe Convention:   The government has signed the Council of Europe's Convention on preventing and combating violence against women and domestic violence.  Interestingly, Article 37 commits the UK to take the necessary legislative or other measures to ensure that the intentional conduct of forcing an adult or a child to enter into a marriage is criminalised.  Also, parties shall take the necessary legislative or other measures to ensure that the intentional conduct of luring an adult or a child to the territory of a Party or State other than the one she or he resides in with the purpose of forcing this adult or child to enter into a marriage is criminalised.

Other materials:

Parliament - very useful material - Briefing Paper

Ministry of Justice - Forced Marriage

An interesting case relating to FMPOs was A Chief Constable v YK and others [2010] EWHC 2438 (Fam) - Sir Nicholas Wall (President of the Family Division). A summary of the case is at Family Law Week.  Given the facts of the case, questions of Public Interest Immunity and the possibility of Special Advocates were raised.

1 comment:

  1. This one is the great post I've ever read!Thanks for this one.