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.

---

[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)