It has not been long since the Government announced that forcing someone into a marriage will be made a specific criminal offence in England and Wales. The aim of this new legislation is that it will prevent forced marriage from taking place. Sabeena Pirooz of Sky Project updates Legal Life.
The Right to Choose Multi-Agency Statutory Guidance for Dealing with Forced Marriage, provides the definition of forced marriage to be …when one or both spouses do not (or in the case of some adults with support needs, cannot) consent to the marriage and duress is involved. Duress can include physical, psychological, financial, sexual and emotional pressure. So ‘choice’ is the crucial factor in deciding whether a marriage is forced. This is different to an arranged marriage when both parties consent, although there remains some grey areas.
Currently, victims of forced marriage are able to obtain a civil remedy. The Forced Marriage (Civil Protection) Act 2007 came into force on the 25th November 2008 which amends Part 4 of The Family Law Act 1996. Section 63A provides that the court may make a Forced Marriage Protection Order (“FMPO”) for the purposes of protecting a victim of forced marriage. The FMPO is used to stop a forced marriage from occurring or to help someone who has already been forced into marriage. A power of arrest can be attached to the Order leading to potential imprisonment if breached.
As Co-Director of The Sky Project, (a charity that provides information and training on forced marriage in the South West), criminalising perpetrators who are forcing someone into marriage marks a significant watershed. Understandably, this appears to be a positive move by the Prime Minister by showing people who commit this type of offence that it will not be tolerated and that professionals, such as the police are able to act more effectively. However, many organisations feel that making forced marriage a criminal offence will only deter victims from coming forward and simply drive the matter further underground and this is a concern shared by The Sky Project.
The difficulty we have with criminalisation are that the perpetrators are often the parents and family of the victim. Many victims live in close communities where family dependency is high and prosecuting parents or extended family is likely to be difficult. Those familiar with female genital mutilation(FGM), will know that it has been a criminal offence since 1985 however there has not been a single prosecution. Regrettably, the practice of FGM continues to take place, therefore it would seem that however abhorrent the act, victims of FGM appear very reluctant to prosecute their own family and community members.
Being able to obtain a civil order is a huge step for victims of forced marriage but remains only the starting process of their suffering. Many victims have to detach themselves from family and community leading to emotional distress and many still wish to keep relationships with their family. Within civil proceedings alone, organisations have found it usual for victims to go ‘hot and cold’ and instructions to be withdrawn.
Criminal law already provides punishment for offences that may be committed when forcing someone into marriage. Lord Lester, who introduced the Forced Marriage Bill which led to the 2007 Act stated “There is already plenty of criminal law to tackle murder, kidnapping, abduction, rape and all the other evil manifestations associated with forcing people into marriage against their will,” His view is that the family law approach was better than the criminal process which, he remarks, “has not proved to be an effective way of tackling a major social problem” and a major social problem it is.
The distinction between practices of forced marriage and arranged marriage is far from simple based on the definition. This has been tested more recently in the case of XCC v AA  EWHC 2183 (COP). In this case, the Court of Protection decided an arranged marriage where the woman had significant learning disabilities, although valid in Bangladesh, was invalid in England and Wales. Parker J, in her earlier judgment in 2010, accepted that it is considered a duty of parents of this background to find spouses for their disabled children so that they can be provided for when the parents are unable to do so. Distinguishing between forced marriage and arranged marriage can be a difficult task and will inevitably affect future criminal prosecutions. The protection of victims is key and the fact that many victims are under 16 and/or have learning disabilities is a concern, particularly when one considers what affect the criminal judicial process might have on the victim.
Many are hopeful that the practice of forced marriage will die out after generations but we are now finding cases where individuals, often brothers who are born in Britain are becoming perpetrators. Shame and dishonour can pass through generations. In the most serious of cases, this could lead to ‘honour killings’. It is thought that there are an estimated 14 honour killings a year but this is perhaps just the tip of the iceberg. Shafilea Ahmed and Banaaz Mahmood are just two of the notable cases and it is only recently that Shafilea’s parents have been prosecuted for her murder which occurred nearly nine years ago.
New Legislation alone does not go far enough in supporting victims of forced marriage. Further work needs to be done to equip victims with the strength to come forward. The ‘dishonour’ of prosecuting ones own family is often seen to be greater than the crime itself. What parents may view as providing care for their child could lead to a severe criminal prosecution. However, alongside any legal framework, it is imperative that work is being done at the grass roots level to challenge foundations of this practice and change cultural perception, more so now due to the imminent change in law. Awareness raising on the affects of the new legislation is paramount and professionals need to acknowledge their role in preventing a forced marriage and seek the relevant training.
The Sky Project hopes that criminalisation will not deter victims from coming forward and that their protection remains the focus. It has only been in the last couple of years that victims are finding the strength to seek help, we therefore hope that a change in the law is not seen as the only solution to the problem.
Solicitor & Co-Director of the Sky Project
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