Calculating inheritance tax (IHT) and exit charges for IHT

CALCULATING INHERITANCE TAX

Step 1: Calculate the cumulative total and find the remaining NRB.

Has the testator given any lifetime gifts? (e.g. a car worth £5,000 to his daughter in May 2009)
Are there any exemptions which apply to those gifts? (Annual exemption of £3,000 per year (can back-date unused exemptions by one year using a max of £6,000), spousal exemption, gifts in consideration of marriage, business property relief etc...) If so, reduce the gifts by the exemption rate, then add the cumulative total together. Take the cumulative total away from the nil-rate-band of £325,000 (NRB) and this figure is the new NRB figure to be deducted at Step 6.

Step 2: Work out what property falls inside or outside of the taxable estate.

Property falling outside the estate will be foreign property, life interest trusts in which the deceased was a remainderman but the life tenant is still alive, discretionary pension schemes, and insurance schemes written in trust.

Step 3: Calculate the taxable estate by adding together all property which does not fall outside the scope.

Step 4: Deduct debts (this may include funeral expenses, credit cards, etc)

Step 5: Deduct exemptions and reliefs (NB: these must only be those which apply on death e.g. spousal, charity, business property, agricultural property)

Step 6: Take away the remaining NRB from Step 1 and then tax at 40% to find the total IHT sum due.



CALCULATING EXIT CHARGES FOR IHT

Exit charges may be due where a distribution is made from a discretionary trust or a life interest trust.

Step 1: Ascertain the Hypothetical Chargeable Transfer (HCT) i.e. the amount of money in the trust

Step 2: Calculate the tax on the HCT by removing the NRB of £325,000 and then taxing at 20%

Step 3: Work out the Average Rate using the following calculation: Step 2/Step 1 x 100

Work out the Settlement Rate using the following calculation: Average Rate x 30%

Step 4: Ascertain how many 'quarters' (i.e. 3 months - there are 4 quarters in a year) have passed since creation of the trust; divide this number by 40. Then multiply the answer by the sum of money which is leaving the trust (e.g. if £100,000 is being given to the testator's son then £100,000 is the value leaving the trust) and multiply by the Settlement Rate percentage.

i.e. X/40 x 'amount leaving the trust' x SR%

The answer is the value of the exit charge.

Private Client/Wills and Probate: Variations and disclaimers of beneficiary entitlement

Where a beneficiary receives entitlement under will or intestacy but does not wish to keep that benefit for themselves, there are 2 main options.

Variation - used where the beneficiary wishes someone else to take the benefit
Disclaimer - used where the beneficiary refuses the gift entirely

The governing law is s.142 Inheritance Tax Act 1984 which applies to both variations and disclaimers.

Anyone over the age of 18 with sufficient mental capacity is able to vary/disclaim.

The conditions that must be met are:
- In writing
- Within 2 years of the death
- Not for money or any other form of consideration
- HMRC must be notified where additional tax is due

Variation may be over whole or part of the entitlement; disclaimer must be over the whole.
Variation may be before or after acceptance of the gift; disclaimer must be before acceptance.

Tax consequences of a variation or disclaimer: under usual rules, giving an interest away would be classed as a PET (Potentially Exempt Transfer - IHT is only payable if the person giving the gift dies within 7 years) for IHT, and would be a 'Deemed Disposal' for CGT. However, as long as s.142 IHTA and s.62(6) TCGA are adhered to, no tax will be payable.

Private Client/Wills and Probate: Tax options for dealing with post-death asset losses

Sometimes when a testator dies and an asset within his estate is sold, that asset will produce a loss. i.e. the asset will be worth less at the point of sale than it was at the testator's time of death.

In order to reduce the tax bill, there are circumstances in which the executors will be able to claim tax relief on such a loss. These circumstances are: (1) land that has sold and made a loss within 4 years of death, and (2) shares that have sold and made a loss within 1 year of death.

If one of the above situations applies, the executors will have two possible options:

OPTION 1: Claim 'IHT Loss Relief' - this has the effect of 'pretending' the asset was worth X at the date of the testator's death. X = the current, lower value of the asset. This means the executors can claim a refund from HMRC on the difference between the old value and the new value of the asset.

For example: the testator's shares in Tesco Plc were worth £6,000 at the date of his death but when they were sold 6 months later they were only worth £4,000. IHT Loss Relief would pretend that at his death they had been worth £4,000. This means that too much IHT was paid to HMRC at the time of death, and a refund of £2,000 is now required.

OPTION 2: Offset CGT losses against CGT gains made in the same tax year - this option can only be used where 'gains' have been made in the same tax year. The effect will be to reduce the entire CGT bill for that year.

For example: (continuing on from the above example) if the testator's house had been sold at a gain of £10,000 (it was worth £190,000 at death but sold for £200,000) but then a £2,000 loss was made on his shares in Tesco Plc, the executors would be able to off-set the loss of £2,000 against the gain of £10,000. The total CGT liability would be £8,000.

NB: it is NOT possible to use both IHT Loss Relief and also CGT relief. This is because if IHT Loss Relief is claimed, we are pretending that the death value was the same as the sale value, and therefore there has not been any loss in which we could off-set CGT!

Succession: Reform of Intestacy Rules (short essay answer)

Essay answer:

Intestacy law is governed by the Administration of Estates Act 1925 and the Non-Contentious Probate Rules. The law on intestacy is somewhat controversial, particularly as regards the benefit received by the surviving spouse on the intestacy of a partner. It has been said that the law has developed in line with the rising property market – giving spouses a more realistic chance of being able to remain in the matrimonial home – although for the issue left in any given case, this is arguably unfair and fails to give effect to the deceased’s true wishes.

The current intestacy rules under Part III AEA set out that where the deceased leaves issue who have obtained the age of 18, the surviving spouse will be entitled to a take a fixed net sum of £250,000 with a rate of 6% interest, personal chattels – for example, a yacht in Re Chaplin, and a watch collection in Re Crispin’s WT – and a life interest in half of the residue. There has been some debate as to the effectiveness of retaining life interests as they as somewhat outdated, however, the courts have not yet reformed this. The residue of the estate once these have been distributed will be shared by any issue on life interests.

Usually it would be pertinent to ascertain which assets within the estate can be classed as personal chattels, however the fixed net sum provided for ‘spouses with issue’ already exceeds the general assets of many individuals. Thus, the surviving spouse in many instances will be entitled to the whole of the estate. Unfortunately this means that none of the issue will take any benefit.

This outcome demonstrates just a handful of the problems associated with not leaving a will. In the extreme, the estate may pass bona vacantia under s.46 AEA. More common problems, however, relate to not fulfilling the deceased’s wishes. Intestacy law, for example, will not concern itself with delving into family relationships to ascertain whether the deceased really would have wanted his spouse and issue to benefit – the rules, by nature, have to be rigid in order to apply to a multiplicity of circumstances, but this often doesn’t suit individual situations.

The law of intestacy also only makes provision for family, perhaps because it would be too cumbersome to attempt to provide for friends too. Thankfully the Inheritance (Provision for Family and Dependants) Act 1975 provides a solution to this problem, although attaining locus standi can bring a plethora of its own problems.

In conclusion, although the rules of intestacy may be seen as unfair, this stresses the importance of creating a valid will. As stated above, there may be some redress through the family provision legislation although the certainty of this is not guaranteed as the courts are often reluctant to provide for grown-up children, as demonstrated in Re Coventry.

EU Law: Gender Equality - the basics

Gender equality was introduced by the Treaty of Rome in 1957.

Treaty of Amsterdam increased the power by introducing Article 19 TFEU on combating discrimination.

The Charter of Fundamental Rights has also added additional protection for citizens.

Article 157 TFEU stemmed from the Defrenne case, in which the French government were worried that they were at an economical disadvantage because their law was already enforcing equal pay for men and women, where other member states were not yet obliged to do so. Making Article 157 TFEU directly effective in all member states meant that not only were France back on par with the other member states, who now had to adhere to the EU provisions providing equal pay for men and women, but it also gave additional rights to women across Europe!

Gender equality is now governed by the Recast Directive 2006/54 where previously it existed in the form of 3 different equal treatment directives. Namely: equal pay, equal treatment and social security.

Discrimination in pay: Defrenne v Sabena demonstrated DIRECT discrimination, whereas Jenkins demonstrated INDIRECT discrimination. Cadman wasn’t a case of gender discrimination but of other discrimination in the work place. It established that paying longer-serving employees a higher wage than newer employees was discrimination where the difference in pay was not based on skills. Cadman set a precedent that all wages must be based on the skill set of the employee, as opposed to any other grounds such as gender or length of service.

Meaning of pay: Direct payment would be in the form of money. Indirect payment can include all the additional benefits provided by an employer in exchange for work. In Garland the court held that travel facilities constituted pay, thus when retired males were permitted to continue using their travel benefits but the women were not, it gave rise to discrimination. In Rinner-Kuhn the court established that sick pay constituted payment in kind. In Barber the court held that redundancy pay was also a form of payment, whether or not the person was voluntarily made redundant. In Gillespie the court said that maternity benefits were pay, although it’s important to note that there can be no comparator when the case involves pregnancy, for obvious reasons. In Bilka-Kaufhaus an occupational pension constituted payment.

Work of equal value: The law on gender equality in the work place started off on equal pay for equal work, i.e. where the male and female were doing the exact same job but being paid differently. However, all legislation changes since the Treaty of Rome have extended this principle further, and now the EU is equally as concerned with ‘equal pay for work of equal value’. This means that the male and female do not need to be doing the same job but their contributions to their respective fields should be seen as equally weighted. Enderby concerned a pharmacist and a psychologist being paid different wages, the female counterpart claimed that she was being discriminated against as they were doing work of equal value. The court agreed that although the job tasks were different, they were doing equal value work. This may seem confusing because it’s so difficult to quantify the roles done in different professions and whether their contributions are ‘equal’, however, the NHS have adopted a system of ‘banding’ where this works surprisingly well. The employees of the NHS will be banded within their fields, depending on their level of expertise, so whilst some jobs (for example, a nursing assistant) may go in as a Band 1 and may only go up to a Band 4, others (for example, a surgeon) may go in at a Band 6 and go up to the highest level.

One case where the courts held it was legitimate to pay the male and female differently was Brunnhofer, in which two employees of a bank employed at the same time and in the same job category, fulfilled different roles and tasks. The male was paid more because his work involved more arduous tasks than his female counterpart. She claimed it was discrimination but the court disagreed.

Burden of proof: Always lies with the complainant to prove that she has been discriminated against. Must prove 1) they have been paid less, using a comparator to prove this, and 2) they were doing work of equal value. In Enderby the burden of proof shifted to the employer, which was an exception to the 

Positive action: benefits minority groups but disadvantages majority groups. For example, always choosing females over males; is similar to positive discrimination.

In Kalanke the employers had a rule that where a male and female candidate, at interview, were equally qualified for the job, they would always hire the minority candidate to restore the gender balance in the firm (for example, a lack of males in the firm, would employ the male). It was a neutral rule. Following this case, the Member States and the Commission expressed dissatisfaction with the way Kalanke was decided, since it was often necessary to restore the gender balance in a company. The Commission clarified the position and when the next case, Marshall came along, it was decided that it would NOT be discriminatory to choose the under-represented sex where the candidates were equally qualified, however the firm should be flexible with that rule and not entirely rigid. Finally Abrahamsson stated that there could be no preference towards a particular gender or minority party.

Pregnancy: Directive 92/85/EEC provided additional rights for those women already in work as opposed to those looking for work. The Dekker case occurred prior to the creation of the Directive and certainly demonstrates why further law was required in the area, as a woman was simply refused employment after interview on grounds of being pregnant.

However, since the enactment of the Directive, there have still been instances of discrimination. Webb for example, concerned an employee on maternity leave who was replaced with another female, who turned out to be pregnant. The employer dismissed the replacement woman on discovery of her pregnancy. Tele-Danmark concerned a lady who was successful at interview and was hired for the job, but later dismissed when the employer found out she was pregnant. Interestingly, the job in this case was only scheduled to be for a 6 month period, therefore it seems strange that the employer would dismiss the woman, unless she was in the last stages of her pregnancy, because she’d be able to complete most (if not all) of the work. In Melgar the woman had worked for the company for approximately 15 years, having had her contract renewed after each year of employment. However, on discovery of her pregnancy, the employer refused to renew her contract and the courts said that the employer must prove that the refusal to renew was based on some other reason (e.g. no longer needed her or she was no longer fulfilling her duties) other than pregnancy, otherwise he would be liable for discrimination.

The case of Hertz demonstrated that the Pregnancy Directive will not protect women outside of their pregnancy or maternity leave. The woman was suffering from a pregnancy-related illness which caused her to take considerable absences from work after her maternity leave. The courts said that the employer was within his rights to dismiss her as the illness could no longer be related to the pregnancy and the time limit fell outside of the scope noted in Article 10 Pregnancy Directive. In contrast to Hertz, Brown concerned a woman who suffered from a pregnancy-related illness during her pregnancy but before the start of her maternity leave. The employer was discriminating against her when he dismissed her, as the courts held that she fell within the scope of Article 10 which states that a woman cannot be dismissed from the beginning of her pregnancy to the end of her maternity leave. She was thus protected by the directive.

Paternity: For many years, the issue of pregnancy only concerned women in the work place and the rights of mothers to stay at home with their children following birth, however the issue of fathers is now becoming increasingly pertinent. Cases such as Hoffman (refused the state maternity benefit whilst on unpaid paternity leave) and Commission v Italy (refused the right to paternity leave) demonstrate that fathers were being discriminated against. The case of Roca-Alvarez has demonstrated that fathers are gaining more and more rights, as the Spanish authorities said that fathers were able to use part of the mother’s remaining maternity leave, when the mother returned to work. Interestingly, this is a topical issue in current news as the UK government have proposed to extend the rights of new fathers, allowing mothers in the UK to transfer the remainder of their maternity leave to their partners, allowing women the right to return to work sooner and men the right to bond with the child, where previously UK law had shown no interest in swapping the gender roles from woman as mother and father as worker or bread-winner.

Income Tax

Calculation:

1) Add together gross income (this means the whole sum before tax is deducted) from all sources.

Where tax has already been deducted at source (e.g. by employer), use this calculation to gross up:

- For interest = net interest x 100/80
- For dividend = net dividend x 100/90

2) Then take away any charges (e.g. interest paid on loans or pension scheme contributions)

3) Then take away the personal allowance of £9,440

If the individual's income is over £100,000 use the following calculation: £9,440 - ((net income - £100,000)/2) = reduced allowance to be deducted.

4) Apply the rate of tax in the following order: Non-savings, Savings, Dividends.

Rates:
Basic Rate - £0 - £32,010 = 20% (or 10% for dividends)
Higher Rate - £32,010 - £150,000 = 40% (or 32.5% for dividends)
Additional Rate - over £150,000 = 45% (or 37.5% for dividends)

5) Add together the tax calculated for each type of income at step 4.

6) Take away tax deducted at source (i.e. in step 1 if you had to gross up the interest or dividend, now take away any money added on)

THE FIGURE YOU END UP WITH IS THE AMOUNT PAYABLE TO HMRC

Interview tips: How to answer "What are your weaknesses?"

You’re at the interview of your life and you’re gleaming as you glowingly, successfully deliver the answer to “What are your strengths?”…..and then the dreaded question comes; “So tell us about your weaknesses?”

HORROR!!  Is this the moment you lose the job you haven’t got yet?

Of course not, because the answer to that question and key to hooking that job is right here:

a) Don’t mention a weakness that is a key/core skill for the job you are interviewing for, as the interviewer might doubt your suitability for the position altogether; so for example, saying that you are nervous about group presentations might be acceptable if you are interviewing for an office admin position, but not for a project manager; and

b) Use your weakness in context, don’t just come out with it, then ‘um’ and ‘ah’ as you try to squeeze it into possible context, and don’t say what it is and pause (that is an awkward space after a negative) for the next inevitable question “so what did you do about it then?”.  Turn it immediately into a positive, and without being prompted.  Continue to discuss how you have turned this weakness around to minimise its potential harm to your business.

Example: “I’m a perfectionist” - do not use this wording in reality as every other candidate will have; it is tiresome, lacks originality and after all, you do want to stand out from all the other candidates (for all the right reasons).

So, it might sound like this: “Over checking my work has sometimes been a problem for me.  In the past, I have wasted time double or triple checking a job, because I have not entirely trusted it was right the first time for the client on a big order, or because it was carried out by another member of staff.  Whilst checking the job is always essential, particularly when the buck ultimately stops with me as a manager, I have now put in place a check list system, so that I can just check the job once and know in my mind, the client’s order can be shipped without wasting time worrying about it.  This has had an unexpected knock on effect, that because I just worry about the work less, I have more confidence in leaving my staff to carry out the job, so I find that I can delegate tasks better and micro manage their work less, all because at the end of the job, I know I can simply check off once the work that has been done and send the order out with confidence.”

Perhaps “Organisation” is the issue, as you had a desk like a tornado hit it and were fed up of feeling rushed all day at work, and going home feeling frazzled, unsettled and unaccomplished all evening…so maybe you’re telling the interviewer that you decided to get organised and prioritise your day better – you decided that emails would be checked and responded to as far as possible in the first 30 minutes of each day, which gives you chance to have your morning coffee whilst you respond to queries/orders, and then from your emails, you know what the demands of the day are on you, so you then outline a work plan of attack for the day, so that instead of rushing through the day and letting down your colleagues with ‘sorry, I’ll do it in a bit’, you can respond accurately “well I must do this task before anything else, which will take about half an hour, and then your task is the next priority, so I will be with you afterwards".  Describe the knock on effect that you believe this has with your colleagues around you having more confidence in how you process your workload - perhaps less rushing has lead to fewer mistakes and you go home at the end of the day happier & more content and able to enjoy your evening, because you feel accomplishes.  In effect, it has affected your whole quality of life, and you did that for yourself.

Ultimately, whether or not you are gunning for a sales position, sell, sell, sell yourself.  Smile, and deliver your weakness as confidently and positively as if you were waxing lyrical about your strength, because in effect, this is what your weakness must masquerade itself as!

And finally....good luck!! :)

Written by Helen Gent  LL.B(Hons) CeMAP

Family Law: Domestic Violence basics

Legislation: 

Family Law Act 1996, Part IV and the Protection from Harassment Act 1997

Background and statistics:  

Recognition of the need to protect victims started in 1970s after a feminist movement.

Domestic violence statistics: 1 in 4 women and 1 in 6 men will experience physical abuse from their partner or ex-partner in their lives. Domestic violence causes more deaths in women aged between 19 – 44 than war, cancer or car accidents.

Orders:

Non-molestation order – s.42 prohibits the respondent from molesting a specified individual and any relevant child. May be a specific order or a general order. May be for a specified length of time or until further notice.

Occupation order – s.33 orders the respondent to leave the matrimonial home. This is an extreme course of action and Re Y said it should be “the last resort in an intolerable situation”. Interests of the children are not paramount. Conduct is not considered.

Cases:

R v R – abolished marital rape

Yemshaw – domestic violence is not limited to physical but included threatening and intimidating behaviour.

Davis v Johnson – domestic violence is any threat to mental or physical health.

George v George – abusive letters and shouting obscenities

Horner v Horner – upsetting notes and intercepting journey to work

Spencer – rifling through handbag

Johnson v Walton – must intend to cause distress or harm

Wootton v Wootton – no intention but did cause physical harm so an order was still appropriate to protect victims

P v P – court has to decide between “the compulsive behaviour of that most unfortunate individual and the safety and well-being of his family”

Banks v Banks – elderly woman had dementia – order would not help

Lomas v Parle – breach of a non-molestation order taken very seriously

Equity and Trusts: Duties and Powers of Trustees

Trustees’ duties and powers

Accepting the trust: must investigate any possible breaches; inspect any relevant documents; know and accept the terms of the trust; and ensure the property is vested.

Duties: 

Treat all beneficiaries the same 

Do not delegate 

Do not profit from the trust

Provide information to beneficiaries

Must not act gratuitously

Powers must be exercised unanimously

Powers: 

Remuneration for professional trustees

May delegate to a specialised professional

May invest the property

May insure the property

Dealings with land.

Power of maintenance: s.31 – providing the beneficiary with an allowance out of the income from trust property. The court also has discretion to order this. It may also be expressly requested or permitted by the trust document - Re Stapleton. Should be for the beneficiary’s maintenance, education or benefit. May be expressly excluded by the trust document - Re Turner’s WT.

Power of advancement: s.32 – providing the beneficiary with the capital they would be entitled to anyway, before it becomes due. Pilkington v IRC  - wide definition of benefit and advancement under statute. Limitations to the power: may only ever give up to half of the beneficiary’s interest in advance, any gift given early will be considered and deducted when it eventually becomes due, and it must not interfere with the interest of any other person. Re Pauling’s Settlement Trusts – 1) Is it in the beneficiary’s interests? 2) Have the beneficiaries been treated even-handedly? 3) Has the trustee exercised his fiduciary power correctly?

Equity and Trusts: Breach of Trust

Breach of Trust: Remedies

Personal remedies

Must establish 1) breach occurred, 2) causal link between breach and loss, 3) no defence applies, 4) no applicable exclusion clause

Duty of care – s.1 Trustee Act 2000.

Lay.man trustee – ‘ordinary prudent man’ test under Speight v Gaunt; 

Professional trustee – higher duty of care, see s.1(1) – confirmed by Bartlett v Barclay’s Bank.

Exclusion clause – limits the liability of a trustee. 

Armitage v Nurse – excluded all negligence except fraud; 

Walker v Stones – one judge said a clause could even exclude a trustee who knew himself to be in breach but believed it was in the beneficiary’s best interest – this is highly controversial; 

Re Clapham – area is ripe for reform.

Joint and several liability – Bishopgate Investments v Maxwell

Compensation/restitution – Re Dawson – put the trust back in position it would have been in

Remoteness and foreseeability – Target Holdings v Redferns

Defences:

1) Court discretion where T acted honestly and reasonably, 

2) Beneficiary’s consent/acquiescence, 

3) Impounding a beneficiary’s interest under s.62, 

4) Time limit s.21(3) Limitation Act, 

5) Bankrupt s.128 Insolvency Act

Proprietary remedies: 

Tracing = act of following property and reclaiming it. 

Advantages of tracing: queue jumping past creditors, benefit from any increase in asset value, available when personal remedies are not.

Usually occur in two main circumstances: misappropriation of property into mixed funds, OR overpaid beneficiary/payment to person not entitled.

Three requirements – 1) Initial fiduciary relationship, 2) Property in a traceable form, 3) Not inequitable to trace.

Mixed funds: Re Hallett’s Estate – trustee presumed to spend his own money first.

Rule in Clayton’s case – First in, first out. Although where a volunteer is involved, may take Pari Passu (in proportion to contributions). 

Roscoe v Winder – trustee cannot benefit from the first in first out rule. 

Barlow Clowes v Vaughan – first in first out rule will not be applied where it would lead to unfair results.

Limits to tracing:

1) Bona fide purchaser, 

2) Dissipation of property, Re Diplock, 

3) Unascertainable property, Re London wine co,  

4) Inequitable to trace, Lipkin Gorman.

Equity and Trusts: Charitable trusts - the basics

Legislation: Charities Act 2006 and 2011

Main case law:

- Morice v Bishop of Durham – origins of the various divisions

- IRC v Pemsel – Lord McNaghten's 4 divisions: poverty, education, religion, other – now consolidated in s.3

4 requirements: 

1) Public benefit – s.4 statutory test, Oppenheim case – no personal nexus, Dingle v Turner  - exception. – must be for the benefit of the public or a portion of it; 

2) Not for profit; 

3) Not political – Antivivsection Society –not allowed; Re Keoppler – allowed as long as the main purpose is not political;

4) Exclusively charitable - William’s Trustees v IRC – not allowed because one of the minor purposes wasn’t charitable, even though the majority were charitable, but Re Coxen – non charitable element allowed because it aided the primary purpose.

Section 3 heads of charity:

- Poverty: not defined in case law or statute but given poverty a very wide meaning, indeed in Re Young distressed gentile folk were deemed to be living in poverty. Re Coulthurst - need not mean destitution. Reform: previously only held trusts for the relief of poverty but now the prevention of poverty too.

- Education: Re Shaw – 40 letter alphabet research not allowed; Re Hopkins – Shakespeare monologue research was allowed. Physical education – IRC v McMullen – Lord Hailsham: wide definition of education which included moral, mental, physical and spiritual development.

- Religion: liberal definition including restoration and maintenance work on churches etc; trusts upheld because of the belief that any religion is better than no religion because it enforces moral standards. Previously required faith and worship in one god, but this ruled out religions such as Buddhism and Sikhism which either had no god, or many gods. Thornton v Howe – satanic groups not allowed because they’ve subversive of morality.

Cy Pres:

s.62 Charities Act 2011, attempts to redirect gift to charity with similar aims/intentions; only applies to deceased donors. 

Initial failure = gift never passed, ‘general charitable intention’ must be proved for cy pres to apply. Subsequent failure = gift had passed but later event caused it to fail, ‘general charitable intention’ is assumed and cy pres automatically applies. Re Faraker – if charity appears in different guise there is no cy-pres. Gift for purpose: Re Vernon’s WT – to crippled children,  Re Satterthwaite  – to animal welfare; or to specific charity: Re Spence – to specific old person’s home.

EU Law: Plaumann Test

What is the Plaumann test and why has it been so widely criticised?

The Plaumann test, as its name would suggest, was fabricated in the Plaumann case. It has been criticised as unrealistic commercially and, in practice, virtually impossible to satisfy. This is because it necessitates that the applicant be so dissimilar to all other persons, when the distinguishing characteristics could undoubtedly be acquired by any other person at any time. In Piraiki-Patraiki it was argued that even if there were incentives for others to join the trade, this might take a considerable time and might well not occur during period of application; the court rejected this argument. Craig and De Burca, on assessing the reasonableness of the aforementioned problem, state that ‘the fact that I may wish to become a striker for England, a great pianist, or a Clementine importer does not mean that I currently have the attributes associated with any of those roles in life. Such examples highlight the absurdity of the test because it could always be argued that others might engage in the trade at some juncture; these arguments are made with little more evidence than mere chance, and common law would suggest this leads to ‘an anomalous and deeply unsatisfactory result’.

The main argument against the Plaumann test proposes that it is inadequate on both pragmatic and conceptual grounds. Pragmatically the test is economically unrealistic. It is not simply by chance that only a limited number of firms pursue a particular trade at any one time; thus the popularity of a given trade will be unlikely to unexpectedly escalate. On conceptual grounds, the reasoning of the CJEU in Plaumann makes it virtually impossible that an applicant will ever succeed because, as formerly stated, the courts can rely on the mere possibility that another person might eventually engage in the same trade, and will use this as reasoning to render the application inadmissible.

How did the cases of UPA and Jego-Quere influence the reform of the Plaumann test?

The severe consequences of the Plaumann test prompted the courts in UPA and Jego-Quere to propose reform. The Advocate General in UPA, in stating that case law is increasingly out of line with liberal developments within Member States, submitted a revised test based upon establishing that a measure has a ‘substantial adverse effect’ on the applicant. This leaves much wider scope for applicants to prove their concern, in comparison to Plaumann which requires complete differentiation from all others. The A-G’s test has been commended by Albors-Llorens: ‘the Jacobs test would not only eliminate the obscurity inherent in the current body of case law but would also be easy to apply.’

The Court of First Instance in Jego-Quere also formulated an alternate test, albeit narrower in scope than the A-G’s proposition. The successfulness of individuals under this test is based on procuring evidence to suggest their legal position has been affected by a measure. That measure must have ‘either restricted his rights or imposed obligations on him’. Furthermore, the effects must be definite and immediate, thus excluding potential effect and making it instantly more realistic than Plaumann.

However, despite such proposition for reform and the plethora of critical responses elicited from the Plaumann test, the CJEU in UPA demonstrated an obvious declination to depart from the precedent.

Why has the CJEU stuck so rigidly with the Plaumann test?

There have been a multitude of suggestions as to why the European Court dismissed the opportunity to reform judicial review; however it is perhaps best to first analyse their reasoning.

There appear to have been two main reasons: Firstly, the CJEU said that ‘the solution lay in the hands of the Member States and their national courts' as it was outside of their jurisdiction. Secondly, the Court held the view that the indirect alternatives to judicial review could provide adequate judicial protection in the event that an applicant failed to achieve locus standi.

In their judgement, regarding the latter point, ‘the ECJ largely ignored the A-G’s analysis of the difficulties faced by individuals who seek to use Article 267.’ Similarly, they also rejected the argument that locus standi should automatically be granted where no alternative remedies apply. It is concerning that the CJEU would rather citizens use the somewhat deficient preliminary ruling procedure as a means of judicial review ‘when a direct route to the...courts exists in the Treaty.’ ‘The failure of the ECJ in expanding the import of ‘individual concern’ in UPA and Jego-Quere reveals its attitude towards judicial review and rights of individuals and its conviction that expansion of standing of private persons should be decided by the member states and not by judicial interpretation.’

Interestingly, Albors-Llorens notes how far the CJEU has previously gone ‘to safeguard the rights of Community citizens...’ What therefore seems strange is why the Court would now deprive its citizens of effective judicial protection, especially given that ‘the letter of Article 230(4) EC does not bind the Court to a particular interpretation of that test.’ The initiation of a new test would simply require changing the common law precedent - something that the Courts have never demonstrated a reluctance to do.

Astley considers the reasoning of three different scholars in attempting to establish why the CJEU have stuck so rigidly with the Plaumann test. In a 1980 journal article, Rasmussen suggests that the Court ‘has a long-term interest in reshaping the judiciary’ so that it can ‘act more like a high court of appeals’. This denotes that the Member States would act as a Court of First Instance for the European Union, ultimately reducing the workload of the CJEU. Harding, rejecting the former argument, argues that Article 230(4) was never intended to give much scope to applicants; he purports that allowing individuals to contest decisions that are addressed to another would ultimately be detrimental to the EU. Finally, Craig, in disagreement with both of the above, suggests that the crucial issue is based around the interpretation and application of the Article and not the wording itself. After all, as mentioned previously, the provision is not restricted to one specific interpretation. Craig proposes that the Courts are attempting to avoid an overabundance of cases in which applicants challenge ‘difficult discretionary policy choices.’ The author, Astley, considers this suggestion and comments that it seems wrong that a Court should avoid a liberal approach for fear of the floodgates opening, particularly when this would suggest that a multitude of individuals have had their interests ‘adversely affected’.

Despite the Court’s decision to retain the Plaumann test, ‘the judgement does not convincingly demonstrate that the Court opposes the relaxation of the standing requirements in Article 230(4) EC.’ This was reiterated at the 1996 Intergovernmental Conference, where the CJEU invited Member States to contemplate reforming the aforementioned Article. The Court also reminded them that by itself, the provision is ineffective in providing adequate judicial protection for citizens; however this suggestion appears to have fallen on deaf ears because no change has since been implemented by any of the MS. This, of course, begs the question as to whether our criticisms should be aimed at national authorities as opposed to supranational ones. The only real factor demonstrating an acknowledgment of the Court’s suggestions is that the English courts have since applied their judgements more liberally in respect of the Plaumann test.

NB: Not all of the above is my own work, however footnotes could not be included.

EU Law: Direct Effect - the basics

Direct effect – where an EU law can be invoked in a national court.

Direct applicability – where EU law becomes part of a member states’ law without any additional legislation being enacted.

Broad definition of direct effect: established in Van Gend en Loos and says that the EU provision may be invoked in a national court.

Narrower definition of direct effect: also known as the classical definition; says that EU provisions confer rights on individuals which they then might invoke in the national courts. The problem with this definition is the ambiguity of the word ‘rights’.

Two initial criteria: Appropriate to confer rights on individuals; integrated into that MS’ law.

Main criteria: Clear and precise; unconditional; not dependent on any further action being taken

Direct effect of Treaties: Treaties can have both vertical and horizontal direct effect, provided that they meet the criteria above. Van Gend en Loos demonstrated vertical direct effect because the complainant successfully sued the Netherlands, relying on Article 12 EC, when they attempted to charge him an import duty on chemicals being imported from Germany into the Netherlands. Defrenne v Sabena demonstrated horizontal direct effect as the complainant successfully sued her employer who was paying her male colleague more than her, relying on the equal treatment directives.

Direct effect of Decisions: Decisions are binding on those to whom they are addressed. Grad demonstrates that decisions can have vertical direct effect, however there is no case law demonstrating horizontal direct effect as of yet. Theoretically we can infer that horizontal direct effect is possible as long as the decision was addressed to the private party rather than the state.

Direct effect of Regulations: Regulations are general in their nature and scope, binding in their entirety and directly applicable in all member states. Politi said that regulations confer rights on individuals which member states are bound to protect; whilst Orsolina (also known as the slaughtered cow case) established that regulations have both direct effect and direct applicability, both vertically and horizontally.

Direct effect of Directives: Directives are EU laws which member states are given a duty to transpose into their national law, but are given a time limit in which to do so. Ratti established that such directives will not have direct effect until the transposition date has passed, or has taken effect. See Member State liability for the consequences of failure to transpose!

Directives can have vertical direct effect, as demonstrated in Van Duyn, who, although unsuccessful in his case, proved that a citizen could rely on a directive against the state (who in this case were denying entry to the country based on being a member of the Church of Scientology). In deciding what constitutes a public or private party, Foster v British Gas established that to be public, the party should be ‘an emanation of the state’. In the Foster case, British Gas were held to be ‘providing a public service under the control of the state’ and therefore the action was seen as vertical. This judgement seems to blur the distinctions between vertical and horizontal direct effect of directives as many of the actions pass over into the horizontal dimension. Leyland and Woods argue that this undermines the arguments against HDE which were put forward in Marshall.

Directives cannot have horizontal direct effect, as demonstrated in Marshall. Attorneys-General have argued that directives should have horizontal direct effect but this has not taken effect, as demonstrated by Dori. One argument for denying the right to horizontal action was based on the fact that it would make the application of regulations and directives too similar when they were intended to be entirely different. It might however be argued that the definition in Foster, alongside the right to ‘indirect effect’ has weakened the denial of horizontal direct effect and thus made directives more similar to regulations anyway!

Family Law: Forced Marriages

Below is a sample essay I have written on the criminalisation of forced marriages. The ideas and sources referred to in this essay would be suitable for an undergraduate-style essay or exam question. All material is my own unless referenced.

Forced marriage (FM) has been an issue of debate for many years, and whether or not to criminalise the practice is even more controversial. What is clear however, is that the ‘abusive practice of forced marriage not only exists, but is thriving in the UK’[1] and therefore action must be taken in one form or another. It has been said that forced marriage is neither a religious nor cultural issue although statistics show that the patriarchal practice affects those predominantly of Asian descent – with approximately 77% of applicants originating from Pakistan, Bangladesh or India;[2] nevertheless, proponents of criminalisation would argue that socio-cultural norms do not provide a defence for perpetrators who deserve no less than criminal status. The Government has demonstrated its ‘growing awareness and recognition’[3] of the pernicious problem that FM poses, with David Cameron stating that forced marriages are ‘the most grotesque example of a relationship that isn’t genuine’,[4] and as such, has proposed to criminalise the act.

This essay will address what forced marriage is and why it happens; whether the current law is doing enough to combat FM; and whether criminalisation proposes a suitable alternative.

What is forced marriage and why does it happen?

Put simply, forced marriage can be summarised as the coercion of a male or female, usually by a parental figure, into a marriage to which they do not consent. The 2011 Home Office Consultation on Forced Marriage described FM as ‘an appalling and indefensible practice that is recognised in the UK and elsewhere as a form of violence against women and men, domestic abuse, a serious abuse of human rights and, where a minor is involved, child abuse’.[5]

First and foremost, FM should be distinguished from arranged marriage (AM) because whilst they are inherently different, the waters are all too regularly muddied and even trained professionals struggle to distinguish between the two.[6] The main distinction is the absence of ‘full and free consent’[7] and Singer notes that forced marriage ‘may be hard to define comprehensively but the absence of consent sticks out just as unmistakeably as the horn of the rhinoceros or the incongruous assemblage of the gnu’.[8] Thus, whilst AM focuses on the traditions of parental suggestion and encouragement; FM is concerned with parental duress and coercion.[9] The spectrum of FM ranges from the grey area of emotional pressure, to more serious ‘threatening behaviour, abduction, false imprisonment, physical violence, rape and in some cases murder’.[10]

FM has been linked to ‘honour crime’ and the concept of ‘izzat’ – keeping the honour of the family raised at all times.[11] It seems peculiar to use the word ‘honour’ to describe such corrupt practices which ‘have nothing to do with any concept of honour known to English law’.[12] Chokowry also notes that the expression ‘honour killing’ has received judicial criticism.[13] What is construed as protecting family honour will undoubtedly differ from family to family, however motives can be anything from controlling unwanted sexuality or behaviour to achieving financial gain or assisting claims for UK residence and citizenship – needless to say, such reasoning will never alleviate the vast immorality and dissipation of forced marriage or honour based crimes.[14]

One Guardian writer has said that ‘forced marriages have nothing to do with honour or keeping promises. They have everything to do with power, control and social status.’[15]

What current legislation is in place to combat FM and how effective is it?

In the UK, there are currently three main jurisdictions at the courts’ disposal when dealing with FM: the Forced Marriage (Civil Protection) Act 2007, the Mental Capacity Act 2005 and the courts’ inherent jurisdiction. It could also be argued that the Human Rights Act[16] goes some way to protecting victims.

The Forced Marriage (Civil Protection) Act 2007 (FMCPA) is currently the main legislative tool for combating forced marriage in the UK; aided by the Forced Marriage Unit (FMU). The Act added Part4A to the Family Law Act 1996; this ‘enables the court to make forced marriage protection orders’[17][18] (FMPOs) for which the court has a wide discretion, facilitating their ability to meet individual needs. For example, holding the victim’s passport or transporting the victim back to the UK where they have been forcibly held abroad.[19] 

The FMCPA was enacted to make it easier to prosecute those aiding and abetting forced marriage, however the result has been confusion as to the law and hesitancy to arrest. Indeed ‘it is widely acknowledged that current statistics do not accurately represent the scale of the problem’.[20] The Home Affairs Select Committee Report from July 2011 acknowledged that there had only been 5 reported breaches and 1 imprisonment since the Act was introduced three years previously.[21]

In FMPO proceedings, circumstances must be taken into account, including disability, so to ensure the victim is appropriately represented and served.[22] Nevertheless, a victim may become vulnerable where disclosure of evidence or information is concerned: this ‘will usually relate to sensitive material which is...likely to cause harm to the [victim] or the informant.’[23] Obviously, this gives rise to questions as to how the court can both achieve a fair hearing in compliance with Article 6[24] when withholding information;[25] however, case law[26] has demonstrated that there is ‘a powerful argument for non-disclosure’[27] and the victims’ wellbeing is of the utmost importance.

Considering the remaining two jurisdictions, the Mental Capacity Act 2005 submits that ‘there are certain decisions that cannot be made on behalf of another person and this includes the decision to marry’[28] and works to prevent such travesties.

The inherent jurisdiction on the other hand, is an automatic, non-statutory power that the Court can exercise on behalf of the Crown, to protect those who cannot protect themselves.[29] This jurisdiction had a much wider scope; for example, it has ‘been used in respect of British nationals living overseas’[30] and to represent vulnerable adults.[31]

Although the law is somewhat competent in protecting victims, the worrying statistics and lack of accountability have given rise to questions of reform and more specifically, criminalisation.

Does criminalisation of FM propose a suitable alternative?

Criminalisation demonstrates a further shift towards making it easier to hold coercive parents accountable. The law has shown an increasing willingness to relax the test by which forced marriage is proven: historically, the applicant had to show that there had been threat to life, limb or liberty[32] but there was a ‘shift in legal rhetoric’[33] in Hirani v Hirani. The judge ruled that the issue was actually whether the threats or pressure were such as to overbear the will of the individual in each case and destroy the reality of their consent.[34] Now, it appears the government is prepared to go one step further and David Cameron has confirmed that parents who coerce their children into a forced marriage will face the prospect of prison.[35] Whether or not the law will work, one thing is clear: ‘the government, wider society, individual communities and the voluntary sector must come together to tackle the practice of forced marriage’.[36]

Although there are countless issues surrounding the criminalisation debate, 5 of the main arguments will be now be critiqued, weighing up the pros and cons. These issues were chosen for variety and importance.

1) Will new legislation aid our legal system in prosecuting perpetrators?

This is perhaps one of the most important questions, considering the length of time and expense that goes into legislating. In order to make the process worthwhile, the Government need to be certain that they will see results; and whilst David Cameron is confident, critics shake their heads at him.

At present, the Government have limited means by which to ensure that perpetrators are caught and dealt with effectively. FMPOs focus on protecting the individual, but not punishing the offender. Imprisoning those who choose to coerce and abuse their children will send out a clear message to other parents, and ‘a Home Office impact assessment published earlier this year said that a new offence could mean about 20 extra prosecutions a year and would need only eight additional prison places’.[37]  This is an important statistic, given the growing problem with space in UK prisons.

David Cameron has proposed to ‘put into place a comprehensive package of protection and support’.[38]  The main benefit, though, is that the new legislation will give the Government further scope in which to act and make decisions on a case-by-case basis; thus best protecting the individual.

Critics would argue one major disadvantage is that UK law can already prosecute for many of the practices which are associated with FM; for example, rape,[39] kidnap[40] and assault’[41] as well as nullification of a non-consented to marriage[42] as in P v R[43] and NS v MI.[44] Opponents worry that creating a specific offence could cause duplication which is redundant and obstructive.[45]

Additionally, when assessing the potential efficacy of an Act, it’s useful to look at other legislation and whether that has had the desired result. Pearce and Gill use the example of female genital mutilation which has been criminalised; and although proponents believe the new law has ‘sent a powerful message to communities’, the practice continues to go unprosecuted despite clear evidence that it is still going on. Critics worry that this does not bode well for the future of forced marriages and something further is needed.[46]   

Introducing forced marriage as an aggravating factor with regard to sentencing, may be simpler and far less controversial; furthermore, ‘the simplest solution of all would be to ensure that existing criminal sanctions and civil remedies were used effectively’.[47] Social services have been criticised for improper use of current procedures[48]  and therefore it would appear that new legislation will have very little effect until we can ensure ‘better training for professionals dealing with forced marriage cases’.[49]

2) Is it legislation or a better understanding of FM that’s required?

As was stated above, the only way to successfully combat the practice of FM is to ensure that people from all sectors of society work together, in their respective fields; most importantly to firstly look out for potential signs or clues of forced marriage amongst friends, families and co-workers. The problem is that many people currently do not understand forced marriage as an entity of its own; it is all-too-commonly muddied into the waters of arranged marriage. However, it has been submitted that ‘criminalisation might help raise awareness within affected communities, potentially deterring families from engaging in the practice’[50]  as well as, inter alia, equipping the layperson with the necessary knowledge to make distinctions between FM and AM.

Critics of criminalisation argue that it should not take as drastic an action as legislating to bring FM to light in the media. Cases such as the recent honour-killing of Shafilea Ahmed have already been given media attention but the result has been little change in public opinion. If we really want to tackle the problem, the UK requires teaching in schools, better news coverage of cases such as Shafilea Ahmed’s and many others like her, and media attention in, for example, Channel 4’s ‘4thought’ adverts which discuss controversial issues post channel 4 news, an obviously influential slot. The Home Office have said ‘we need to send a stronger, clearer message to communities and internationally that forced marriage will not be tolerated in this country, and that there will be consequences for those that commit this form of abuse.’[51]

Bangladesh seems to have had an unusual, albeit successful, approach to forced marriages, and one which the UK could certainly learn from. The tactic was not about legislation as they recognise that ‘you can’t defeat something like this with heavy-handed law enforcement’,[52] but about reuniting and demonstrating perseverance. The ‘wedding busters’, as they call themselves, focus on tackling one key aspect of FM, namely child marriage. “We bring together the government, elected representatives and NGOs...and work with a comprehensive approach... Although Bangladesh passed the Child Marriage Restraint (Amendment) Ordinance in 1984...enforcement remains lax.”[53]  Thus in Bangladesh, where legislation failed, what worked was the unity of influential bodies fighting against forced marriage together.

The money spent on legislating against FM in the UK could be better spent on ensuring that NGOs, the police and local authorities are adequately funded so that they can meet the needs of victims’.[54] If we taught our public bodies how to successfully distinguish FM from AM and to work more efficiently together, we would almost certainly see favourable outcomes; the question is whether the government are prepared to put in the work to ensure this.

3) Will new legislation encourage victims to seek help?

Many victims of FM will have grown up in a sheltered environment, which has been tightly controlled by their parents and wider family. In an environment where arranged marriage is pervasive, commonly practiced and promoted as a healthy means of finding a life-partner, victims may be led to believe that forced marriages are also normal (although of course, the term ‘forced marriage’ will not be one that most sufferers are familiar with) and they certainly won’t recognise that they are the victims of a human rights abuse.[55] As such, proponents believe ‘the new law will empower them with the knowledge that what is happening to them is wrong and can be stopped’.[56]  Critics fight back, arguing that most victims will not have an ‘understanding of the criminal justice system, let alone how the legal process works’,[57] and thus the prospect of litigation for young and naive individuals could be too overwhelming to have the desired effect.

Pearce and Gill make an excellent point that in the current system ‘victims often need to be reassured that the protection they seek will be obtained in the family courts and that their families will not be prosecuted. This would not be the case if plans to criminalise FM go ahead’.[58]  Although many victims are thankful for separation from their home environment, the majority do not want to see their parents imprisoned. Since under-reporting is already a major problem,[59]  the Government may have a difficult job to persuade and reassure victims of the new legislation – potentially incurring additional time and money into raising awareness after the initial expenditure of legislating. Indeed the Government have already agreed to provide ‘£500,000 to be divided amongst forced marriage based charities.’[60]

The Home Office, however, already believes ‘victims are increasingly recognising the warning signs and now have the confidence to come forward and seek help’;[61] critics would submit that this is speculative as reporting statistics are still down.

Additionally, it is important that any action taken is done so with minimal knowledge from family members, who pose a constant threat to the victim. This is extremely difficult to do in criminal proceedings which can often take months or years, and require a certain degree of transparency. Remember that young people living with forced marriage may suffer considerable harm if their families become aware that they are seeking assistance,[62]  and for countless victims, knowing they could be found out will be enough to dissuade them from litigation.

4) Are we empowering victims or simply providing a quick-fix solution?

One of the main reasons why forced marriages are so difficult to eradicate is because victims are reluctant to come forward and implicate their parents. Whilst critics argue that criminalisation will only worsen this problem, supporters state that since FMPOs are expected to continue existing alongside the new criminal offence, in reality, the new system will ‘give victims the choice of taking the civil route or making a complaint to the police leading to a possible criminal prosecution’.[63] From a critical point of view, however, if a victim has a limited understanding of the criminal justice system, they may not appreciate the difference between civil and criminal litigation, thereby rendering the point superfluous.

Proponents remind us that victims will not be forced to support a prosecution against their wishes,[64]  however, the assertion that victims remain in complete control at all times throughout the litigation process has been rebutted by the fact that ‘ministers have ruled out giving victims a veto’ once a prosecution has begun.[65] Additionally, due to the length of the criminal litigation process, victims may withdraw under family pressures before a prosecution has even begun.[66]

Even where a victim does see their case through, opponents of the legislation have suggested that it will be a ‘quick fix solution to a complex and long-standing problem’[67] which the Government has not given enough thought to. Whilst time has been spent considering the different methods for ensuring accountability, they have provided little in the way of explanation as to how and where displaced victims would be accommodated, protected and looked after in the long term.[68]   

Local authorities in the UK are already struggling to find suitable foster parents as there appears to be a national shortage of carers but an increasing number of children. The B-M case demonstrates the significant difficulties with attempting to ensure children are not estranged from their cultural background.[69] It’s also worth remembering that FM victims ‘require specialist carers with specific training, sensitivity and understanding’ so finding such individuals poses a huge challenge for the Government.[70] 

Therefore, although victims may be given back a certain degree of power regarding decisions within litigation, the resulting aftermath has been clumsily considered and may lead to an increase in levels of homelessness, poverty and potentially suicide.

5) Will criminalisation drive the practice of forced marriage underground?

Currently, where a victim seeks the help of the court, the most frequent course of action is the FMPO, as mentioned previously. Of course this goes some way to protecting the child, but what does it teach the parent? There seems to be an overwhelming need to hold offenders accountable for their actions: we wouldn’t remove a rape victim from a situation but then allow the rapist to walk free, so why has the criminal justice system been so happy to let coercive parents get away with it?

From a critic’s point of view, criminalisation may hold some perpetrators accountable whilst other offenders simply learn to be more tactical in their behaviour. Forced marriages are already rather concealed and unspoken-of practices, but there is a significant risk that making the act illegal will ‘not be an effective deterrent’,[71] it simply will worsen this problem. Rather than raising awareness of honour-crimes amongst communities, in schools and in the work place, FM will fail to be recognised as a serious issue and victims will face further ostracism. Additionally, ‘there is a concern that more families might take their children overseas at a younger age and force them into marriage there, thereby...avoiding proceedings in the UK.’[72]

Remember that most instigators of FM are not acting out of malice necessarily, but acting in line with their own perception of community and cultural norms - however outdated by western standards; it is thus submitted that in a desperate attempt to be accepted, they’ll simply continue coercing their children but in a more surreptitious manner.

Conclusion

What is overwhelmingly clear is that there is no right or wrong answer in relation to the issue of criminalisation. On the one hand, there is an ever-increasing need to hold offenders accountable, but on the other, a concern that further legislation may discourage victims from seeking help for fear of further isolation and abandonment. The current law has gone some way to dealing with the sordid practice, nonetheless, with statistics not improving there is need for a change. Criminalisation offers victims the choice to take more radical action, whilst civil litigation is still open to those who have no interest in prosecuting; however, this remains redundant if sufferers are not educated as to the difference and effect of both. Above all, this essay submits that the media will have the greatest influence in tackling FM, by changing cultural values through education and news coverage. What the UK requires is a true understanding of the difference between FM and AM, and a mergence of different sectors, all working together to eradicate the practice which is ultimately outdated and a clear abuse of human rights. Whether or not further law is required to achieve such a result is still unclear, however, even critics cannot deny the positive effect that legislating will have in raising awareness and acting as a potential deterrent.

In one significant case,[73] Munby J said “…the court must not hesitate to use every weapon in its protective arsenal if faced with what is, or appears to be, a case of forced marriage”.[74] Thus if we are to succeed in the proverbial battle against FM, criminalisation is the most powerful tool we may afford our Government in holding perpetrators accountable, upholding the protection of victims and respecting the value of human rights; and as such it must be embraced.

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[1] Georgina Vallance-Webb, ‘Forced Marriage: Forcing the Issue’, [2008] Stevens & Bolton LLP

[2] Hanisha Patel, Rachel Langdale and Anne-Marie Hutchinson, ‘Forced Marriage: the Concept and Law’, [2009] Fam Law

[3] Sir Peter Singer, ‘When is an Arranged Marriage a Forced Marriage?’, [2000] from the conference on ‘The Trend From Parental Rights to Parental Responsibilities’

[4] Home Office, Forced Marriage Consultation [2011]

[5] Ibid

[6] Nasreen Pearce and Aisha K Gill, ‘Criminalising forced marriage through stand-alone legislation: will it work?’ [2012] Fam Law

[7] Jonathan Herring, ‘Family Law’ (5^th edn, Pearson Education Ltd 2011)

[8] (See footnote 3)

[9] (See footnote 6)

[10] (See footnote 4)

[11] (See footnote 2)

[12] Katy Chokowry and Kevin Skinner, ‘The Forced Marriage (Civil Protection) Act 2007: Two Years On’, [2011] Fam Law

[13] Sir Nicholas Wall, Re B-M (Children) [2009] EWCA Civ 205, [2009] 2 FLR 20

[14] (See footnote 2)

[15] Ajmal Masroor, ‘The forced marriage ban is welcome, but it’s 20 years too late’, [2012] Guardian

[16] Human Rights Act 1998, Article 12 ‘Right to marry’

[17] (See footnote 7)

[18] Family Law Act 1996, Part 4A, s.63A

[19] SK (An Adult) (Forced Marriage: Appropriate Relief) [2004] EWHC 3202

[20] (See footnote 6)

[21] Ibid

[22] Nasreen Pearce, ‘Forced Marriage Protection Orders: Practice and Procedure Under FPR 2010’, [2011] Fam Law

[23] Ibid

[24] Human Rights Act 1998, Article 6 ‘Right to a fair trial’

[25] Claire Sanders, ‘Open Secrets: Procedure & Practice, [2010] 160 NLJ 1528

[26] A Chief Constable v YK and Others [2010] All ER (D) 59 (Oct)

[27] (See footnote 25)

[28] http://northumberlandlscb.proceduresonline.com/pdfs/adass_forcr_marry_adults_learn_dis.pdf

[29] Penny Booth, Family Law, (OUP 2011)

[30] (See footnote 7)

[31] M v B [2005] EWHC 1681 (Fam)

[32] Singh v Singh [1971] 2 All ER 828

[33] Sundari Anitha and Aisha Gill, ‘Coercion, Consent and the Forced Marriage Debate in the UK’, [2009] FLS

[34] Hirani v Hirani [1983] 4 FLR 232

[35] Alan Travis, ‘Forced marriage to become criminal offence, David Cameron confirms’, [2012] Guardian

[36] (See footnote 2)

[37] (See footnote 35)

[38] Ibid

[39] Sexual Offences (Amendment) Act 2003, s.1

[40] Common Law Offence

[41] Criminal Justice Act 1988, s.39

[42] Matrimonial Causes Act 1973, s.12(c)

[43] P v R (Forced Marriage: Annulment: Procedure) [2003] 1 FLR 661

[44] NS v MI [2006] EWHC 1646

[45] (See footnote 4)

[46] (See footnote 6)

[47] Aisha Gill and Khatun Sapnara, ‘Forced marriages blight lives, but criminalising them would not work’, [2012] Guardian

[48] (See footnote 12)

[49] (See footnote 42)

[50] (See footnote 42)

[51] (See footnote 4)

[52] Syed Zain Al-Mahmood, ‘Bangladeshi girls call in ‘wedding busters’ to tackle child marriage’, [2012] Guardian

[53] Ibid

[54] (See footnote 6)

[55] (See footnote 4)

[56] (See footnote 35)

[57] (See footnote 6)

[58] Ibid

[59] (See footnote 42)

[60] Charlotte Rachael Proudman, ‘In criminalising forced marriage the UK joins a Europe-wide movement’, [2012] The Independent: Blogs

[61] (See footnote 4)

[62] (See footnote 2)

[63] (See footnote 35)

[64] Ibid

[65] (See footnote 35)

[66] (See footnote 4)

[67] (See footnote 42)

[68] (See footnote 6)

[69] (See footnote 13)

[70] (See footnote 6)

[71] Ibid

[72] (See footnote 4)

[73] (See footnote 45)

[74] (See footnote 2)