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Forced Marriage (Civil Protection) Bill [HL]


Forced Marriage (Civil Protection) Bill [HL]

1

 

A

Bill

To

Make provision for protecting individuals against being forced to enter into

marriage without their free and full consent and for protecting individuals

who have been forced to enter into marriage without such consent; and for

connected purposes. 

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

1       

Protection against forced marriage: England and Wales

After Part 4 of the Family Law Act 1996 (c. 27) insert—

“Part 4A

Forced marriage

Forced marriage protection orders

5

63A     

Forced marriage protection orders

(1)   

The court may make an order for the purposes of protecting—

(a)   

a person from being forced into a marriage or from any attempt

to be forced into a marriage; or

(b)   

a person who has been forced into a marriage.

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(2)   

In deciding whether to exercise its powers under this section and, if so,

in what manner, the court must have regard to all the circumstances

including the need to secure the health, safety and well-being of the

person to be protected.

(3)   

In ascertaining that person’s well-being, the court must, in particular,

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have such regard to the person’s wishes and feelings (so far as they are

reasonably ascertainable) as the court considers appropriate in the light

of the person’s age and understanding.

 
Bill 12954/2
 
 

Forced Marriage (Civil Protection) Bill [HL]

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(4)   

For the purposes of this Part a person (“A”) is forced into a marriage if

another person (“B”) forces A to enter into a marriage (whether with B

or another person) without A’s free and full consent.

(5)   

For the purposes of subsection (4) it does not matter whether the

conduct of B which forces A to enter into a marriage is directed against

5

A, B or another person.

(6)   

In this Part—

“force” includes coerce by threats or other psychological means

(and related expressions are to be read accordingly); and

“forced marriage protection order” means an order under this

10

section.

63B     

Contents of orders

(1)   

A forced marriage protection order may contain—

(a)   

such prohibitions, restrictions or requirements; and

(b)   

such other terms;

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as the court considers appropriate for the purposes of the order.

(2)   

The terms of such orders may, in particular, relate to—

(a)   

conduct outside England and Wales as well as (or instead of)

conduct within England and Wales;

(b)   

respondents who are, or may become, involved in other

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respects as well as (or instead of) respondents who force or

attempt to force, or may force or attempt to force, a person to

enter into a marriage;

(c)   

other persons who are, or may become, involved in other

respects as well as respondents of any kind.

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(3)   

For the purposes of subsection (2) examples of involvement in other

respects are—

(a)   

aiding, abetting, counselling, procuring, encouraging or

assisting another person to force, or to attempt to force, a person

to enter into a marriage; or

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(b)   

conspiring to force, or to attempt to force, a person to enter into

a marriage.

63C     

Applications and other occasions for making orders

(1)   

The court may make a forced marriage protection order—

(a)   

on an application being made to it; or

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(b)   

without an application being made to it but in the circumstances

mentioned in subsection (6).

(2)   

An application may be made by—

(a)   

the person who is to be protected by the order; or

(b)   

a relevant third party.

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(3)   

An application may be made by any other person with the leave of the

court.

(4)   

In deciding whether to grant leave, the court must have regard to all the

circumstances including—

(a)   

the applicant’s connection with the person to be protected;

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Forced Marriage (Civil Protection) Bill [HL]

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(b)   

the applicant’s knowledge of the circumstances of the person to

be protected; and

(c)   

the wishes and feelings of the person to be protected so far as

they are reasonably ascertainable and so far as the court

considers it appropriate, in the light of the person’s age and

5

understanding, to have regard to them.

(5)   

An application under this section may be made in other family

proceedings or without any other family proceedings being instituted.

(6)   

The circumstances in which the court may make an order without an

application being made are where—

10

(a)   

any other family proceedings are before the court (“the current

proceedings”);

(b)   

the court considers that a forced marriage protection order

should be made to protect a person (whether or not a party to

the current proceedings); and

15

(c)   

a person who would be a respondent to any such proceedings

for a forced marriage protection order is a party to the current

proceedings.

(7)   

In this section—

“family proceedings” has the same meaning as in Part 4 (see

20

section 63(1) and (2)) but also includes—

(a)   

proceedings under the inherent jurisdiction of the High

Court in relation to adults;

(b)   

proceedings in which the court has made an emergency

protection order under section 44 of the Children Act

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1989 (c. 41) which includes an exclusion requirement (as

defined in section 44A(3) of that Act); and

(c)   

proceedings in which the court has made an order under

section 50 of the Act of 1989 (recovery of abducted

children etc.); and

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“relevant third party” means a person specified, or falling within

a description of persons specified, by order of the Lord

Chancellor.

(8)   

An order of the Lord Chancellor under subsection (7) may, in

particular, specify the Secretary of State.

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Further provision about orders

63D     

Ex parte orders: Part 4A

(1)   

The court may, in any case where it considers that it is just and

convenient to do so, make a forced marriage protection order even

though the respondent has not been given such notice of the

40

proceedings as would otherwise be required by rules of court.

(2)   

In deciding whether to exercise its powers under subsection (1), the

court must have regard to all the circumstances including—

(a)   

any risk of significant harm to the person to be protected or

another person if the order is not made immediately;

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Forced Marriage (Civil Protection) Bill [HL]

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(b)   

whether it is likely that an applicant will be deterred or

prevented from pursuing an application if an order is not made

immediately; and

(c)   

whether there is reason to believe that—

(i)   

the respondent is aware of the proceedings but is

5

deliberately evading service; and

(ii)   

the delay involved in effecting substituted service will

cause serious prejudice to the person to be protected or

(if a different person) an applicant.

(3)   

The court must give the respondent an opportunity to make

10

representations about any order made by virtue of subsection (1).

(4)   

The opportunity must be—

(a)   

as soon as just and convenient; and

(b)   

at a hearing of which notice has been given to all the parties in

accordance with rules of court.

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63E     

Undertakings instead of orders

(1)   

The court may, subject to subsection (3), accept an undertaking from

the respondent to proceedings for a forced marriage protection order if

it has power to make such an order.

(2)   

No power of arrest may be attached to an undertaking given under

20

subsection (1).

(3)   

The court may not accept an undertaking under subsection (1) instead

of making an order if a power of arrest would otherwise have been

attached to the order.

(4)   

An undertaking given to the court under subsection (1) is enforceable

25

as if the court had made the order in terms corresponding to those of

the undertaking.

(5)   

This section is without prejudice to the powers of the court apart from

this section.

63F     

Duration of orders

30

A forced marriage protection order may be made for a specified period

or until varied or discharged.

63G     

Variation of orders and their discharge

(1)   

The court may vary or discharge a forced marriage protection order on

an application by—

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(a)   

any party to the proceedings for the order;

(b)   

the person being protected by the order (if not a party to the

proceedings for the order); or

(c)   

any person affected by the order.

(2)   

In addition, the court may vary or discharge a forced marriage

40

protection order made by virtue of section 63C(1)(b) even though no

application under subsection (1) above has been made to the court.

(3)   

Section 63D applies to a variation of a forced marriage protection order

as it applies to the making of such an order.

 
 

Forced Marriage (Civil Protection) Bill [HL]

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(4)   

Section 63E applies to proceedings for a variation of a forced marriage

protection order as it applies to proceedings for the making of such an

order.

(5)   

Accordingly, references in sections 63D and 63E to making a forced

marriage protection order are to be read for the purposes of subsections

5

(3) and (4) above as references to varying such an order.

(6)   

Subsection (7) applies if a power of arrest has been attached to

provisions of a forced marriage protection order by virtue of section

63H.

(7)   

The court may vary or discharge the order under this section so far as

10

it confers a power of arrest (whether or not there is a variation or

discharge of any other provision of the order).

Arrest for breach of orders

63H     

Attachment of powers of arrest to orders

(1)   

Subsection (2) applies if the court—

15

(a)   

intends to make a forced marriage protection order otherwise

than by virtue of section 63D; and

(b)   

considers that the respondent has used or threatened violence

against the person being protected or otherwise in connection

with the matters being dealt with by the order.

20

(2)   

The court must attach a power of arrest to one or more provisions of the

order unless it considers that, in all the circumstances of the case, there

will be adequate protection without such a power.

(3)   

Subsection (4) applies if the court—

(a)   

intends to make a forced marriage protection order by virtue of

25

section 63D; and

(b)   

considers that the respondent has used or threatened violence

against the person being protected or otherwise in connection

with the matters being dealt with by the order.

(4)   

The court may attach a power of arrest to one or more provisions of the

30

order if it considers that there is a risk of significant harm to a person,

attributable to conduct of the respondent, if the power of arrest is not

attached to the provisions immediately.

(5)   

The court may provide for a power of arrest attached to any provisions

of an order under subsection (4) to have effect for a shorter period than

35

the other provisions of the order.

(6)   

Any period specified for the purposes of subsection (5) may be

extended by the court (on one or more occasions) on an application to

vary or discharge the order.

(7)   

In this section “respondent” includes any person who is not a

40

respondent but to whom an order is directed.

63I     

Arrest under attached powers

(1)   

Subsection (2) applies if a power of arrest is attached to provisions of a

forced marriage protection order under section 63H.

 
 

Forced Marriage (Civil Protection) Bill [HL]

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(2)   

A constable may arrest without warrant a person whom the constable

has reasonable cause for suspecting to be in breach of any such

provision or otherwise in contempt of court in relation to the order.

(3)   

A person arrested under subsection (2) must be brought before the

relevant judge within the period of 24 hours beginning at the time of the

5

person’s arrest.

(4)   

In calculating any period of 24 hours for the purposes of subsection (3),

Christmas Day, Good Friday and any Sunday are to be ignored.

63J     

Arrest under warrant

(1)   

Subsection (2) applies if the court has made a forced marriage

10

protection order but—

(a)   

no power of arrest is attached to any provision of the order

under section 63H;

(b)   

such a power is attached only to certain provisions of the order;

or

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(c)   

such a power was attached for a shorter period than other

provisions of the order and that period has expired.

(2)   

An interested party may apply to the relevant judge for the issue of a

warrant for the arrest of a person if the interested party considers that

the person has failed to comply with the order or is otherwise in

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contempt of court in relation to the order.

(3)   

The relevant judge must not issue a warrant on an application under

subsection (2) unless—

(a)   

the application is substantiated on oath; and

(b)   

the relevant judge has reasonable grounds for believing that the

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person to be arrested has failed to comply with the order or is

otherwise in contempt of court in relation to the order.

(4)   

In this section “interested party”, in relation to a forced marriage

protection order, means—

(a)   

the person being protected by the order;

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(b)   

(if a different person) the person who applied for the order; or

(c)   

any other person;

   

but no application may be made under subsection (2) by a person

falling within paragraph (c) without the leave of the relevant judge.

63K     

Remand: general

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(1)   

The court before which an arrested person is brought under section

63I(3) or by virtue of a warrant issued under section 63J may, if the

matter is not then disposed of immediately, remand the person

concerned.

(2)   

Schedule 5 has effect in relation to the powers of the court to remand a

40

person by virtue of this section but as if the following modifications

were made to the Schedule.

(3)   

The modifications are that—

(a)   

in paragraph 2(1) of Schedule 5, the reference to section 47 is to

be read as a reference to this section; and

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Forced Marriage (Civil Protection) Bill [HL]

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(b)   

in paragraph 2(5)(b) of the Schedule, the reference to section

48(1) is to be read as a reference to section 63L(1).

(4)   

Subsection (5) applies if a person remanded under this section is

granted bail under Schedule 5 as modified above.

(5)   

The person may be required by the relevant judge to comply, before

5

release on bail or later, with such requirements as appear to the relevant

judge to be necessary to secure that the person does not interfere with

witnesses or otherwise obstruct the course of justice.

63L     

Remand: medical examination and report

(1)   

Any power to remand a person under section 63K(1) may be exercised

10

for the purpose of enabling a medical examination and report to be

made if the relevant judge has reason to consider that a medical report

will be required.

(2)   

If such a power is so exercised, the adjournment must not be for more

than 4 weeks at a time unless the relevant judge remands the accused

15

in custody.

(3)   

If the relevant judge remands the accused in custody, the adjournment

must not be for more than 3 weeks at a time.

(4)   

Subsection (5) applies if there is reason to suspect that a person who has

been arrested—

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(a)   

under section 63I(2); or

(b)   

under a warrant issued on an application made under section

63J(2);

   

is suffering from mental illness or severe mental impairment.

(5)   

The relevant judge has the same power to make an order under section

25

35 of the Mental Health Act 1983 (c. 20) (remand for report on accused’s

mental condition) as the Crown Court has under section 35 of that Act

in the case of an accused person within the meaning of that section.

Jurisdiction and procedure

63M     

Jurisdiction of courts: Part 4A

30

(1)   

For the purposes of this Part “the court” means the High Court or a

county court.

(2)   

Subsection (1) is subject to any provision made by virtue of subsections

(3) and (4).

(3)   

Section 57(3) to (12) (allocation of proceedings to courts etc.) apply for

35

the purposes of this Part as they apply for the purposes of Part 4 but as

if the following modification were made.

(4)   

The modification is that section 57(8) is to be read as if there were

substituted for it—

“(8)   

For the purposes of subsections (3), (4) and (5), there are two

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levels of court—

(a)   

the High Court; and

(b)   

any county court.”

 
 

 
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