Legal Remedies Available to Forced Marriage

Critically evaluate the different legal remedies available to a person who is marrying or who has married under duress.

Introduction

Forcing an individual to marry against their will has been outlawed for many decades and thus it is somewhat surprising that the issue remains prevalent. This essay identifies the issues of forced marriage and the implications on the victim and their family. It then assesses the legal provisioning that has been implemented to both prevent forced marriage from occurring, whilst also punishing the offenders of this crime. Questions are raised as to whether the changes in the law are likely to be effective, and it is asked whether more needs to be done to finally remove the issue of forced marriage from all cultures.

Forced Marriage - The Issues

From the name 'forced marriage' it is easy to assume that it captures an individual physically forced to marry another against their will. Nonetheless this definition fails to capture those individuals who consent after being coerced or subjected to emotional blackmail, coercion or duress, which is often present within the forced marriage cases.[1] Forced marriage was prohibited by the Universal Declaration of Human Rights in 1948,[2] and the European Convention of Human Rights in 1950.[3] Nonetheless, it is only more recently that it appears to have become a bigger issue leading to the introduction of the Forced Marriage (Civil Protection) Act 2007 (FMCPA). This is possibly attributed to the fact that it is perceived to be a religious issue and often confused with arranged marriage.[4] Evidence however, identifies that forced marriage transcends many cultures, including European, and religions, including Christianity.[5] Forced marriage is generally associated with young girls and in this respect they represent around eighty percent of the cases that are known.[6] There are known to be around 8,000 cases reported in England each year however, it is anticipated that the actual numbers of unreported cases is likely to be far higher.[7]

In some cases there is a distinct threat of violence and forced marriage or refusal to marry is associated with honour based violence, used in order to restore honour to the family.[8] Honour based violence can in some cases even extend to murder.[9] The association of forced marriage with violence does not take into account the emotional pressure that is placed on victims who are often threatened with dis-ownership from the family, and this form of coercion has been said to blur the distinction between arranged and forced marriage.[10] It is not uncommon for victims of forced marriage to be taken to another country and married to a local man that they have never met before. In this context forced marriage is used as a means of bypassing immigration laws.[11]

The Law

Prior to the introduction of the FMCPA it was felt that existing laws were capable of dealing with issues of forced marriage. The FMCPA was introduced as a means of preventing forced marriage from occurring and enables a judge to make an order aimed at protecting an individual from being forced into marriage; however, it will also operate where the victim has already been forced into marriage.[12] The contents of the order will therefore be dependent on the circumstances of the individual case.[13] The FMCPA gives the judge a broad discretion in what orders may be awarded allowing the court to award "such prohibitions, restrictions or requirements; and such other terms; as the court considers appropriate for the purposes of the order".[14] In fact, the provisions give very little information on what type of award the judge may award. Judge Cardinal discusses the types of award that a judge may award as including an order for possession of the victim's passport preventing them from being taken abroad and married without their consent.[15] The judge can also bring in other agencies to support the victim of a proposed forced marriage.[16] The FMCPA was designed to be preventative however, where forced marriage had occurred it has been criticised for the limited support that it has offered victims of forced marriage. A local authority v 'X' demonstrates this particularly clearly when a British child was forcibly married and raped following the marriage ceremony was not permitted to have the marriage nullified as the marriage had occurred more than three years before the proceedings.[17] Whilst the attributed to restrictions in the Matrimonial Causes Act 1973 this did not prevent the court taking a more sympathetic approach in B v I three years earlier.[18]

The FMCPA did not contain criminal sanctions for those who were responsible for arranging the forced marriage. It was felt that criminalising the act would prevent victims from coming forward and thus undermine the purpose of the act, which was primarily aimed at prevention.[19] The lack of enforcement provisioning inhibited both the courts and the other agencies involved in cases in dealing with a breach of a forced marriage protection order. Thus, in Bedfordshire Police v U and another whilst a forced marriage protection order was in place the victim's mother arranged for the marriage ceremony to be conducted at the victim's home.[20] The victim was forced to marry against her will and the marriage was forcibly consummated. The police attempted to bring a claim for contempt of court but were prevented from doing so on the basis that they were not a party to the original protection order and the statute had not given them this right. Justice Holman was particularly scathing in the lack of remedies available for the breach of a forced protection order and called for changes in the law.[21]

The government undertook a consultation into forced marriage and the effectiveness of the FMCPA and one of the areas which the consultation assessed was whether forced marriage should be criminalised.[22] The overwhelming response was that "current civil remedies and criminal sanctions are not being used as effectively as they could in tackling forced marriage".[23] Issues were related to poor training and a lack of awareness of the sanctions that were available, particularly by the police.[24] This defies the example in Bedfordshire Police v U and another where the police were prevented from taking action on behalf of the victim and there were limited actions that could be taken as the victim had subsequently dropped the charges.[25] In addition, the law failed to take into consideration the cultural and religious differences that impose a stigma on the victim of rape and divorce and thus prevent victims who have been forcibly married from coming forward at first instance.[26] The government's consultation identified that an overwhelming majority supported the criminalisation of forced marriage, which is a considerable U-turn given that the FMCPA was only implemented in 2007 and many of its provisions did not come into effect until November 2008.

It is noted however, the United Nations recommended criminal sanctions for forcing an individual to marry against their will; [27] and this is supported by the Council of Europe Recommendation 1723 (2005) on forced and Child marriages contend further that the punishment for assisting the forced marriage should consider as an aggravating factor "the victim's dependency on these persons".[28] The United Kingdom has responded to the criticisms of the FMCPA by implementing section Anti-Social Behaviour, Crime and Policing Act 2014 (ASBCPA), inserting section 63CA into the Family Law Act 1996, which imposes criminal sanctions for breaching a forced marriage civil protection order. The changes are necessary and therefore very much welcomed however, there is a feeling that the legislator's intention was to hide the criminal sanctions within other laws. In this regard changes should have been made directly to the FMCPA stating that it is a criminal offence to breach the provisions of the orders that are granted by the court. This would have aided transparency and made it clearer to victims and perpetrators of forced marriage the likely consequences of taking such action. It is argued that such approach would have better deterrent effect and also may encourage more victims to come forward on the basis that it strengthens their protection. Section 121 ASBCPA makes it an offence to force an individual to marry against their will and this includes taking an individual overseas to be forcibly married.[29] Whilst the section also refers to the victims mental incapacity there is no reference in relation to the victim being a child and thus regardless of whether they consent the marriage should automatically fall within the provision of forced marriage.[30] This would appear to be an unintended oversight on the part of the legislator but one which may be very damaging to a child bride.

Is it likely to be successful?

There were many aspects of the FMCPA that were inherently successful and enabled various agencies to support the victim in preventing a forced marriage from occurring. Nonetheless Bedfordshire Police v U and another identifies that the provisions were not always capable of enforcement.[31] This is clear evidence of the difficulties that were faced by the authorities in both protecting victims, whilst bringing perpetrators to justice. The criminalisation of forced marriage was therefore seen as necessary, as were the sanctions imposed for breaching a forced marriage protection order. The Bedfordshire case suggests that the new sanctions will achieve their objectives and offer real protection to the victims of forced marriage. The police would have had the powers to take enforcement action for the breach of the order and this would send the message that forced marriage is unacceptable. Nonetheless there will always be the issue that many victims and even potential victims will not come forward as those that commit these crimes are family members. Their association with family and community may be lost forever, which is a tall ask for a young individual.[32]

What is noted is that the statute makes provision for family assurances and prevents the court from accepting such assurances where the assurer has been violent or threatened violence to the victim.[33] The first case to be brought under the new legislation resulted in a criminal conviction, and this would indicate that the changes in the law have been successful.[34] In this case, the victim of a forced marriage who had been raped and beaten repeatedly both prior to and following the marriage successfully spoke out against the perpetrator and he was imprisoned.[35] It is hoped that this will prevent further shocking cases, such as K Re (A Local Authority v N,) in which the 15 year old victim refused a forced marriage and was beaten and raped by her father until she accepted the marriage.[36] After the abusive marriage was identified as being forced, the victim was allowed to return to her family.

The criminalisation of forced marriage only took effect in the summer of 2015 and hence it is too early to state realistically the effectiveness of the provisions. There are however, positive indications that can be drawn from the first successful conviction under section 121 ASBCPA, which occurred very shortly after the law came into force.

Conclusion

The civil protection under forced marriage was successful in preventing a great deal of forced marriages from occurring. Nonetheless its primary weakness was that it lacked enforcement capabilities. There are other weaknesses in relation to assisting those victims that have already been forced into marriage. In this sense, the provisions do not offer adequate support or protection. The criminalisation of forced marriage was long overdue however, it is anticipated that the scale and the severity of the issue is considerably under estimated. There is much to suggest that as girls become more aware of the forced marriage provisioning there will be a substantial increase in the number of cases brought. There are gaps in the law and more could be done to protect the victims of forced marriage. In this regard it would appear that the legislator's attempt has been both piecemeal and lacklustre. It is anticipated that further frustrations will arise from the current amendments that will drive the next round of changes. It would have been far more preferable to undertake a review of all the surrounding legislation and develop specific provisioning for forced marriage and this suggests a missed opportunity. Nonetheless, it is a case of time will tell as to whether the provisions have been successful.

Footnotes

[1] Khatidja Chantler, Gangoli Geetanjali and Marianne Hester, 'Forced marriage in the UK: Religious, cultural, economic or state violence?' (2009) 29(4) Critical Social Policy 587, 596.

[2] Article 16.

[3] Article 12.

[4] Chantler, Gangoli and Hester, n1, 596.

[5] Cheryl Thomas, 'Forced and Early Marriage: A Focus on Central and Eastern Europe and Former Soviet Union Countries with Selected Laws from Other Countries (2009) United Nations Click here for the full article accessed 14 September 2015.

[6] Dildar F Zebari, 'Forced Marriage and International Human Rights' (2013) 1(5) International Journal of Humanities and Management Sciences 293, 293.

[7] Sayeeda Warsi, Forced Marriage Has Always Been a Crime in Spirit, (2012) The Guardian June 8, Click here for the full article accessed 30 July 2015.

[8] Cynthia Helba, and others, 'Report on Exploratory Study into Honor Violence Measurement Methods' (2014) United States Department of Justice Click here for the full article accessed 12 September 2015 [1.3].

[9] Ibid.

[10] Joanne Baker, 'Forced Marriage: A Review of Literature' (2015) Ending Violence Association of British Columbia Click here for the full article accessed 12 September 2015, 1, 2.

[11] Re P [2011] EWHC 3467

[12] Forced Marriage (Civil Protection) Act 2007, [1].

[13] Mehvish Chaudhry, 'An introduction to the Forced Marriage (Civil Protection) Act 2007' (2010) 24(2) Journal of Immigration Asylum and Nationality Law 173, 173.

[14] Forced Marriage (Civil Protection) Act 2007, [2].

[15] Judge Martin Cardinal, Forced Marriages, (2010) 18(4) Journal of the Commonwealth Judges and Magistrates Association 11, 12.

[16] Ibid.

[17] A local authority v 'X' [2013] EWHC 3274.

[18] B v I [2010] 1 F.L.R. 1721.

[19] Maryam Aqueel, 'The effect of criminalising forced marriages in the United Kingdom: a step too far?' (2015) 20(1) Coventry Law Journal 16, 20.

[20] Bedfordshire Police v U and another [2013] EWHC 2350

[21] Ibid.

[22] Home Office, Forced Marriage: A Consultation Summary of Responses (2012) Click here for the full article accessed 1 August 2015, 3.

[23] Ibid, 8.

[24] Ibid.

[25] Bedfordshire Police v U and another [2013] EWHC 2350.

[26] Sara Hossain, and Suzanne Turner, 'Abduction for Forced Marriage - Rights and Remedies in Bangladesh and Pakistan' (2000) INTERIGHTS (International Centre for the Legal Protection of Human Rights) submission to British Home Office's Working Group on Forced Marriage - Article no longer available - accessed 12 September 2015.

[27] United Nations, 'Handbook for Legislation on Violence Against Women (2010) Click here for the full article accessed 15 September 2015, 50.

[28] Council of Europe Recommendation 1723 (2005) on Forced and Child Marriage [2.6-2.7].

[29] Anti-Social Behaviour, Crime and Policing Act 2014, section 121(1).

[30] Bridget Clark and Claudina Richards, 'The prevention and Prohibition of Forced Marriages: A Comparative Approach (2008) 57(3) International and Comparative Law Quarterly 501, 501.

[31] Bedfordshire Police v U and another [2013] EWHC 2350

[32] Eleanor Stobart, Multi Agency Practice Guidelines Handling Forced Marriage (2013) Forced Marriage Unit, Click here for the full article accessed 15 September 2015.

[33] Family Law Act 1996, section 63E.

[34] John Bingham, 'First Ever Forced Marriage Conviction in UK' (2015) The Telegraph, 10 June Click here for the full article accessed 12 September 2015.

[35] Bingham, n34, n.p.

[36] K Re (A Local Authority v N) [2005] EWHC 2956