In the UK, girls as young as 5 years old have been reported as victims of forced marriage. The joint head of the Forced Marriage Unit confirmed that 29% of the cases it was involved with during 2011 concerned girls under the age of 16. These figures suggest that action is necessary to try to prevent children and young people who do not have the requisite capacity, entering into the lifetime commitment of marriage.
Concerns about forced marriage is nothing new, the government has been concerned for a number of years and this led to the creation of the Forced Marriage Unit in 2005. The Unit advises and assists many potential victims of forced marriage, their friends and relatives as well as professionals and works abroad with embassy staff to rescue victims.
Although the Forced Marriage Unit was working well, the government believed that more should be done. Consequently, in 2008 the government introduced legislation which created Forced Marriage Protection Orders in England, Wales and Northern Ireland. Such orders can be applied for by a potential victim, their friend, or the police. If an order is granted and subsequently breached, the person who has committed the breach can be imprisoned for a maximum of two years for the civil offence of contempt of court. The government hoped that these orders and accompanying legislation would reduce the number of forced marriages taking place amongst English, Welsh and Northern Irish citizens.
In late 2011 the government commissioned a public consultation into criminalising forced marriages in England, Wales and Northern Ireland with the aim of trying to reduce the number of forced marriages taking place. The consultation lasted 12 weeks and opinions were sought from the public, victims, charities and frontline agencies.
The outcome of this consultation was that the government would make forcing an individual to marry a criminal offence but would put strategies and programmes in place to try to prevent individuals being deterred from reporting forced marriages.
What effect will the new legislation have on arranged marriages?
Arranged marriages will be outside the ambit of the new legislation so should not be affected by it. The crucial difference between forced marriages and arranged marriages being that in respect of the latter, both parties have consented to the marriage and are free to choose whether to go ahead with it or not. With forced marriages, one party obviously does not have the option or ability to consent, their liberty to choose is taken away from them.
Summary
The question is whether criminalising forced marriages in England and Wales will protect victims as the government intended or whether, in reality, it will cause victims to be more afraid and reluctant to seek help knowing that they may have to stand up in court to testify against their parents and that their parents may subsequently be imprisoned and incur a criminal record. This would be difficult for anyone, but especially difficult for victims of forced marriage who are often young and vulnerable.
Added to this, it is believed that only around 19% of all forced marriages are currently reported to the Forced Marriage Unit. Unless victims and others associated with them view criminalisation as an incentive to report forced marriages, the impact of criminalisation may be insignificant.
Further, it is expected that the civil remedy of a Forced Marriage Protection Order will remain available thus giving individuals the right to choose whether to pursue a civil or a criminal remedy. This may also affect the impact of criminalisation.
The government seems to be trying to maximise the impact of the legislation by also introducing a package of protection which includes a fund of £500,000.00 to be used to assist schools and agencies in identifying the early signs of forced marriage over the next 3 years. The government is also planning a campaign highlighting that individuals have a right to choose who to marry. The impact of these strategies remains to be seen but hopefully they will compliment the new legislation. However, even on the most optimistic view, it appears unlikely that criminalisation will lead to forced marriages being a thing of the past.
Cheryl Grace is a trainee solicitor in the family team. If you would like to speak to her about this, please call 0113 336 3435 or email cheryl.grace@clarionsolicitors.com.