4.8 Forced Marriages

Contents

1. Definition
2. Reasons given for Forced Marriage
3. Legal Position
4. The Child or Young Person
5. Referrals
6. The Role of the Police
7. The Role of Children’s Social Care Services
8. Information, Record Keeping and Confidentiality
9. Action

1. Definition

There is a clear difference between a forced marriage and an arranged marriage. In arranged marriages, the families of both spouses take a leading role in arranging the marriage but the choice of whether or not to accept the arrangement remains with the young people.

In a forced marriage, one or both spouses do not consent to the arrangement of the marriage and some elements of duress are involved. Duress can include both physical and psychological pressure.

Forced Marriage is a violation of a person's human rights and cannot be justified on religious or cultural grounds.

Forced Marriage is primarily an issue of violence against women. Most cases involve young women and girls aged between 13 and 30, although there is evidence to suggest that as many as 15% of victims are male.

There have been cases involving families from East Asia, the Middle East, Europe and Africa. Some forced marriages take place in the UK with no overseas element, while others involve a partner coming from overseas or a British citizen being sent abroad.

2. Reasons given for Forced Marriages

• Cultural or religious traditions;
• Controlling unwanted behaviour including promiscuity or being gay or lesbian;
• Protecting 'family honour';
• Responding to peer group or family pressure;
• Attempting to strengthen family links;
• Ensuring land, property and wealth remain within the family;
• Protecting religious and cultural ideas which are misguided;
• Preventing 'unsuitable' relationships e.g. outside the ethnic, cultural religious or caste group;
• Assisting claims for residence and citizenship;
• Fulfilling long-standing family commitments.

3. Legal Position

3.1 General Position

The minimum age at which a person is able to give consent to marriage is 16; a person between the ages of 16 and 18 may not marry without consent from all those with Parental Responsibility (unless the young person is a widow or widower).

Section 12(c) of the Matrimonial Causes Act 1973 states that a marriage is voidable if either party to the marriage did not validly consent to it, whether as a consequence of duress, mistake, unsoundness of mind or otherwise. A voidable marriage exists and is valid until a decree of nullity is obtained. The proceedings must be instituted within 3 years of the date of the marriage or the Court must extend the time limit.

Currently there is no specific criminal offence of 'forcing someone to marry' in England and Wales. However perpetrators, usually parents or family members, could be prosecuted for offences including threatening behaviour, assault, kidnap, abduction, false imprisonment, harassment, child cruelty, trafficking and, in worst cases, murder. Sexual intercourse without consent is rape, regardless of whether this occurs within the confines of a marriage.

3.2 Forced Marriage (Civil Protection) Act 2007

The Forced Marriage (Civil Protection) Act 2007 introduced legislation to protect individuals from being forced to enter into a marriage without their free and full consent and for protecting individuals who have been forced to enter into a marriage without such consent. The Act came into effect on 25 November 2008. The Act inserts a new Part 4A into the Family Law Act 1996. Part 4A enables the court to make a Forced Marriage Protection Order (FMPO).

A FMPO is made for the purposes of protecting:

• Someone who has been forced into marriage; or
• Someone who is facing being forced into marriage.

FMPOs are private law applications made by the applicant to a designated family court. The nearest designated family court for FMPO applications is Birmingham.

Applications can be made with notice to the respondent or without notice (ex parte) in emergency or urgent situations. Applications can be made and heard at the same time as criminal investigations are being undertaken or during the course of criminal proceedings in the criminal courts.

Breach of a FMPO is contempt of court and can be punished with up to 2 years imprisonment.

The Act does not change the existing powers of the family courts to deal with forced marriage cases in, for example, Children Act proceedings. Further, the Act has no impact on the High court’s powers to deal with cases of forced marriage under its inherent jurisdiction and in wardship cases.

A FMPO does not end a forced marriage. Someone wishing to end a forced marriage would need to take separate legal proceedings.

Who can apply?

Three categories of people can apply namely:

• The victim (the person to be protected); or
• Someone on their behalf with permission of the court; or
• A relevant third party as appointed by order of the Lord Chancellor and no permission from the court is required prior to their making an application.

Local authorities are relevant third parties under the Act and guidance for local authorities on applying for Forced Marriage Protection Orders has been published by the Ministry of Justice in November 2009.

Both adults and children can apply for a FMPO. A child does not need the leave of the court to apply. A child may bring an application without a guardian or next friend where leave of the court is obtained or a solicitor considers that the child is able to give instructions (see Rule 9.2 and 9.2A of the Family Proceedings Rules 1991).

Forced marriage is a breach of human rights so child protection issues are likely to also arise in the case of a child facing forced marriage.

Making a FMPO

The terms of the FMPO can be drafted widely and impose prohibitions, requirements and restrictions in order to protect someone who is already in a forced marriage or who is facing being forced into marriage.

Examples of the terms the court might include are:

• Surrender of passport or travel documents;
• Prevent the victim from being taken abroad;
• Stop the forced marriage taking place;
• No contact with the victim.

A FMPO can apply within England and Wales or outside, for example an order that a person is interviewed at the High Commission overseas. A FMPO may be addressed to other persons who are or who may become involved, as well as named respondents. The court may attach a power of arrest (POA) to the order where violence is used or threatened against the person to be protected. Where the court attaches a POA it will be served on the police station local to the person to be protected or another police station if specified by the court. A warrant of arrest can be applied for if no POA attached.

The court may deal with someone who is in breach of an order under its powers of contempt of court.

As indicated above, magistrates’ courts (or family proceedings courts), other than designated family courts, cannot make a FMPO.

Enforcement

Police can arrest and bring before the court anyone they reasonably suspect to be in breach of the order or otherwise in contempt of court i.e. not just the named respondents. The person must be brought before the relevant judge within 24 hours of arrest. The applicant will be notified of the arrest by the court and may need to attend to provide details to the court at the breach hearing. Police should follow the existing Practice Direction (Family Division: attached powers of arrest) (2000) 1 All ER 544 in relation to attending the court.

Any county court with family court jurisdiction can deal with the arrest of someone for breach of the order or hear an application for a warrant or arrest.

However, where possible, the police should bring a person arrested before the court that made the FMPO. This is because the original court will be in the best position to deal with the person for contempt immediately with all the facts before it. Where that is not possible (e.g. because of the 24 hour time limit), the police should bring the person arrested to another FMA court or any other county court with family jurisdiction within the 24 hours of arrest.

There is power for the court to remand anyone arrested and brought before the court. The court can also transfer the case back to the originating court or another FMA court

A person arrested should not be taken to the magistrates’ courts or family proceedings courts.  Magistrates’ courts or family proceedings courts cannot be dealt with the breach or hear applications for a warrant of arrest.

4. The Child or Young Person 

A young person in this situation may show signs that are noted at school or by friends of their own age group. 

These can often be a noticeable change from previous behaviour. Typical indicators are:

• Truancy;
• Decline in performance or punctuality;
• Low motivation at school;
• Poor exam results;
• Being withdrawn from education by those with parental responsibility;
• Not allowed to attend extra-curricular activities;
• Self harm and attempted suicide;
• Eating disorders;
• Depression;
• Isolation;
• Siblings forced to marry;
• Family disputes;
• Unreasonable restrictions e.g. house arrest;
• Other young people within the family reported missing;
• Reports of domestic violence or breaches of the peace at the family home;
• The individual reported for offences e.g. shoplifting or substance misuse;
• Unreasonable financial control ,for example confiscation of wages/income.

5. Referrals

Forced marriage places children and vulnerable adults at risk of rape and possible physical harm. Some cases have resulted in the reluctant spouse being murdered. All agencies need to be aware of Forced Marriages and the possibility of dealing with it.

Information or a referral about forced marriage may be received from the young person or from a friend or relative, or from a statutory, voluntary or faith organisation. Forced marriage may also become apparent when other family issues are addressed such as domestic abuse, self-harm, child abuse or neglect, family and adolescent conflict or missing children or runaways.

It is important that staff of all agencies understand the difficulties that young people face in challenging a forced marriage. They are likely to have no experience of living outside the family and may face rejection and harassment by the family and by the community.

Forced marriage involves complex and sensitive issues; where information is available to any agency which gives rise to concerns about a forced marriage involving a child or young person under 18 it should be referred to Children’s Social Care Services in accordance with the Referrals Procedure.

All referrals must be responded to and further advice may be sought from the Review and Child Protection Unit. 

6. The Role of the Police

Forced marriage involves criminal offences. Although there is no specific criminal offence of “forcing a person to marry”, perpetrators may be prosecuted for a variety of offences, such as conspiracy, threatening behaviour, assault, kidnap, abduction, rape and murder. Sexual intercourse without consent is rape regardless of whether it occurs within a marriage or not. In addition, the Forced Marriage (Civil Protection) Act 2007, which was implemented in November 2008, makes provision for protecting children, young people and adults from being forced into marriage without their full and free consent (through Forced Marriage Protection Orders).

A person fleeing a forced marriage, or the threat of a forced marriage, should be referred to the police if:

1. There is any suspicion that they have been the victim of a crime; or
2. The person is under the age of 18; or
3. There are any concerns about their safety, or about the safety of their siblings or children.

If the person is under 18, the police will:

• Consult the Police Child Abuse Investigation Unit;
• Inform Children’s Social Care Services;
• Check if the child is the subject of a Child Protection Plan;
• Ensure that an appropriate adult and, if needed, an accredited interpreter is in attendance at all interviews – members of the extended family or community leaders are not appropriate in this situation.

7. The Role of Children’s Social Care Services 

Children’s Social Care Services will carry out an assessment of the child’s circumstances and needs and make a detailed record of any reported history of abuse.

When assessing the risk of harm, a full family history must be taken to consider any forced marriage and abuse of any other member of the family as well as a secret boy or girlfriend, pregnancy, and self harming.

Children’s Social Care Services must:

• Give the child or young person advice on personal safety;
• Consider the possible need for immediate protection and placement away from the family;
• Discuss with Police any concerns for the safety of any other children and any suspicion that a crime may have been committed.

8. Information, Record Keeping and Confidentiality

It is important for Children’s Social Care Services to obtain as much information as possible when a child or young person is first referred, as there may not be another opportunity. A record should be taken of the young person's immediate personal details and the family details including any information about the need for an interpreter.

Full details of the allegation should be recorded, including details of any threats or hostile actions against the young person.

A record should also be made of the details of the person making the initial referral, including contact details and their relationship to the young person

It is imperative that family members are not informed about the concerns, as there will be ongoing safety issues for the young person, unless the young person is in agreement and does not think this will further compromise his/her safety.

All agencies should take particular care to ensure that their members of staff do not:

• Use family members, friends, neighbours or community leaders as interpreters;
• Send the young person back to the family home against their wishes;
• Approach the young person's family or friends or others within the young person's community without the young person's explicit consent;
• Notify the family in advance of enquiries;
• Attempt to mediate between the young person and the family except at the young person's specific request;
• Breach the young persons confidentiality, unless this is necessary to ensure their safety.

When a referral is received, the young person should be interviewed in a secure and private place, on their own. They may want to be seen by a person of their own gender, and they may want to talk to someone from their own community - or to avoid talking to someone from their own community.

The person interviewing the young person should:

• Discuss the range of options available to them and the possible consequences of each course of action;
• Signpost them to an appropriate advisor who can make them aware of their right to seek legal advice and representation;
• Develop a “cover story” - a plausible alternative reason for the young person to be at the social work office, police station etc., in case they are seen there.

At all times confidentiality and discretion are vitally important.

Information about the young person and their whereabouts must be kept confidential. Access should preferably be restricted to named members of staff. This includes both paper-based and computer records.

Before making any enquiries, the worker should consider whether there is a risk that the family will become aware that these enquiries are being made.

The worker must think very carefully about the need to disclose information and to whom it may be disclosed. Disclosure may lead to the young persons estrangement from the family and increase the risk of Significant Harm to the young person.

When considering disclosure of confidential information to another person or agency, the young person should be informed, the reasons explained and their consent sought.

Workers should be aware that some families will stop at nothing to find the young person, and often private investigators have been used to do this. Many times the family may approach a third party such as a local Councillor or MP with a seemingly reasonable request to contact the young person; do not provide information without checking with a manager and the young person first.

When arranging to see the young person, thought should be given to where and when this should happen, for example, if the young person is coming to an office, consider arranging the appointment out of hours to minimise risks to the safety of the young person.

Concerns about forced marriage should not be discussed with the young person's family or friends, and information should not be shared without the express consent of the young person, unless it is necessary to protect the young person and is in accordance with the guidance contained in Information Sharing and Confidentiality Procedure. Such action could place a child or young person at increased risk. If approached, parents may deny that the young person is being forced to marry, move the young person, expedite any travel arrangements and bring forward the forced marriage.

9. Action

A Strategy Discussion/Meeting will be needed to deal with this issue; the Police, Housing Services, Children’s Social Care Services, Health and voluntary organisations must work together to address the young persons need for information, protection, financial support, accommodation and emotional support. Legal advice will be needed to inform the Strategy discussion as legal action may be necessary.

Where an Initial Child Protection Conference is convened, great care must be taken to manage information about the whereabouts of the young person. The social worker and his/her manager must discuss the arrangements with the Conference Chair and consider whether the family should be present or not, or at the same time as the young person, as threats may be made. Children’s Social Care Services should give full consideration to the use of an independent interpreter/cultural adviser.

9.1	If the young person wishes to remain in the family home, it is essential to devise a way of contacting the young person discreetly without placing them at increased risk of harm. This should include a code word to ensure that contact has been made with the right person.  A safety plan should be put in place with the young person; looking at how to raise the alarm if there are concerns about increased risk to safety; having access to emergency money; having an escape plan. Consideration should be given to the possibility that written communications including emails may be intercepted and that telephone communications may be detected, for example, through the phone bill.
9.2	If the young person wishes to leave the family home, there will need to be a leaving strategy. This will include issues such as: Where could the young person go in an emergency? If the young person is in immediate danger, it may be necessary to consider admission to local authority accommodation, an Emergency Protection Order or Police Protection.  In this situation, it is not appropriate to rely on the extended family to provide a place of safety unless the young person can identify a relative in whom they have absolute trust.  It may be necessary to place the young person outside their community and in a different local authority area.
9.3	A young person arriving in the UK for the purpose of a forced marriage, or following a forced marriage, will be in an extremely vulnerable position. They may have no contacts in the country, who are not involved in the forced marriage. They may not have indefinite leave to remain in the UK, but if they were to return to their country of origin they may be ostracised and exposed to a high risk of violence. In many cases they may not speak the language and will not have knowledge about local resources. They may require a range of support services.
9.4	A young person may be going on a family holiday overseas and suspect that they will be forced to marry. Any such concerns should be taken seriously, but the arrangement of an extended holiday should not be assumed to imply that a forced marriage is planned. As much of the following information as possible should be gathered so that action can be taken, if necessary.  Any addresses where the young person may be staying while overseas; Potential spouses name; Date of proposed wedding; Addresses of extended family members in UK and overseas; Details of travel plans, including estimated return date, and people likely to accompany the young person. The person interviewing the young person should: Keep a separate note of their passport number and the date and place of issue; Give the young person the address and phone number of the British Embassy in the country to which they are travelling; Establish a safe means to make contact with the young person, e.g. a mobile phone that will work overseas; Encourage the young person to memorise at least one telephone number and e-mail address; Ask the young person for details of a trusted person in the UK with whom they will keep in contact whilst overseas, who will act on their behalf and who can be approached if they do not return; Take a written statement from the young person that they want the social worker (or another person) to act on their behalf if they do not return by a certain date; Ask the young person to make contact without fail on their return; Record some information that only the young person will know – this may help later in confirming their identity. If there is a clear risk of forced marriage, and the risk is imminent, it may be necessary to take emergency action to remove the young person from home in order to protect them and prevent the travel abroad.
9.5	Young people who leave home to escape a forced marriage or the threat of one face particular difficulties. Agencies may be criticised for providing support and protection to a young person who has run away from home, and for failing to share information about the young person's whereabouts with the family. The first consideration must be for the young persons safety and welfare. Any young person who has run away from home should be interviewed on their own to establish why they ran away. Issues related to forced marriage may come to light at this time. If the young person is at risk of being forced into a marriage, it may not be in their best interests to disclose any information to their family, friends, or members of their community until their continued safety has been secured.

End