Forced Marriage – A Consultation PaperLegal 8.60
The 2007 Act
The starting point for consideration of this subject is the Forced Marriage (Civil Protection) Act 2007, which received Royal Assent on 26 July 2007 and was brought into force in November 2008. The Act extends to England, Wales and Northern Ireland only and a similar Act, the Forced Marriage etc. (Protection & Jurisdiction) (Scotland) Act 2011was passed by the Scottish Parliament and came into effect in November 2011. The Bill which became the 2007 Act was introduced originally in the House of Lords by Lord Lester, a distinguished human rights lawyer, as a private member’s Bill, but was adopted by the government and passed by both Houses of Parliament without dissent.. The practice of forced marriage has been a social evil for some years, particularly among families of Asian origin. It is important to draw a distinction between arranged and forced marriage. Bona fide arranged marriages are normal in the Asian communities and the Act does not seek to impugn them. There have however been many cases of young women in particular being forced to marry husbands from the Asian subcontinent whom they have never met, as a means of facilitating immigration for the men concerned. The problem has become particularly serious in northern cities with large communities of Asian origin.
2 The Act amends the Family Law Act 1996 by inserting a whole new set of sections, which empower the High Court and county courts to make forced marriage protection orders (FMPOs) for the purpose of providing legal means of protection for persons who are being or have been forced into marriage. A person is deemed to be forced into a marriage if he or she is forced by another person to enter into a marriage without his or her free and full consent. The courts are given wide powers to include in FMPOs such prohibitions, restrictions or requirements or such other terms as are considered appropriate and may relate to conduct outside the United Kingdom. Thus a court could for example issue an order prohibiting a family from taking an unwilling daughter abroad for the purpose of marriage or an order in the case of a daughter who has left home to take refuge from her family, forbidding other members of her family from trying to contact or molest her.
3 The Act deals with the problem of young people under pressure to marry who are afraid to seek help from authority against their own parents. An application to the court may be made by the person to be protected but may also be made by a relevant third party. “Relevant third party” means a person or body to be specified by order of the Lord Chancellor and could include e.g. other relatives, Social Services departments of local authorities. Any other person may make an application with the leave of the court. In certain circumstances the court may make an order even though no application has been made. In the normal way when an application is made to a court for an order against a particular person, notice of the proceedings must be given to the person concerned in accordance with rules of court. In the case of FMPOs however, the Act specifically provides that the court may, in any case where it considers that it is just and convenient to do so, make a FMPO even though the respondent, the person against whom the order is to be made, has not been given notice of the proceedings. In these various ways the Act gives maximum flexibility to the court to ensure that the FMPO regime has teeth.
The Consultation Paper
4 When the Bill which became the Forced Marriage Act was going through Parliament there was a public consultation as to whether it should create a new criminal offence of forcing a person into marriage, but this possibility was not favoured by the majority of those consulted, so the Act does not create such an offence, though the Scottish Act, passed much later, does so. Now that the Act has been in operation for more than three years, the government has entered into a commitment to create a new criminal offence and has issued a further consultation paper on the subject. The paper was published on 12 December 2011 and remains open for consultation until 30 March 2012.
5 The paper notes that between November 2008 when the Act came into force and July 2011 339 FMPOs were made. Disobedience of a FMPO is punishable as a contempt of court and the court has power to punish by a custodial sentence of up to two years. The Act itself makes provision for powers of arrest to be attached to an FMPO if it considers that the respondent has used or threatened violence against the person being protected and in such cases a police constable may arrest without warrant a person whom he has reasonable cause for suspecting to be in breach of the order. Furthermore, although forcing a person into marriage is not itself an offence, activities directed towards that end such as assault, grievous bodily harm threatening behaviour and in some extreme cases murder are criminal and can be prosecuted.
6 The effectiveness of the Act was considered by the Home Affairs Select Committee of the House of Commons which published a report on the subject in May 2011. On the subject of breaches the Committee suggested that monitoring of FMPOs was inadequate. Up to that date only five breaches of FMPOs had been recorded and only one person had been sentenced to imprisonment for breach of an order.
7 The consultation paper considers the question of the creation of a new criminal offence or offences at some length. Although the government has, as already mentioned, committed itself to the creation of an offence of forcing persons to marry, nevertheless the consultation invites views on the desirability of doing so. It points out that, as already stated in paragraph 5 above, activities directed towards forcing a person to marry are criminal, but suggests that the creation of a new criminal offence would make the law clearer and might change public attitudes to forced marriage, particularly in those communities in which the phenomenon of forced marriage is most prevalent.
The Migration Watch view
8 The topic of forced marriage is clearly relevant to immigration. Applications from spouses or fiancé(e)s seeking visas to enable them to enter the United Kingdom for the purpose of joining a spouse or fiancé(e) already resident here and appeals against refusal of such visas frequently raise the question whether the sponsor resident in the UK is a willing partner or is pursuing the application or appeal only because of pressure from his or her family. The consultation paper asks a number of questions directed at immigration practitioners and judges, social workers and others who have direct personal experience of the kind of problems associated with the phenomenon of forced marriage. We have forwarded to the Home Office some comments prepared by a member of Migration Watch’s Advisory Council who has much experience in these areas. In general we support the aims of the 2007 Act and in the interests of enhancing and strengthening immigration control would favour making it a specific criminal offence to force a person into marriage.
9 This paper is an amended and updated version of Legal Briefing Paper 8.18 which is now deleted. The reader’s attention is drawn to the contents of Legal Briefing Papers 8.56 and 8.57, based on the recent Supreme Court decision in the case of Quila, in which the question of regulating and seeking to prevent forced marriage was a material issue.
Harry Mitchell QC
Honorary Legal Adviser
23 February, 2012