Forced marriage - Home Affairs Committee Contents

2  The impact of legislative changes

The Forced Marriage (Civil Protection) Act 2007

6.  Forced marriage is not in itself a criminal offence, although those who perpetrate it may commit a range of criminal offences, including kidnapping, false imprisonment, assault and battery, threats to kill, harassment, sexual offences and blackmail. The Forced Marriage (Civil Protection) Act 2007, which came into force in November 2008, introduced civil remedies to protect individuals at risk of being forced into marriage, or to help remove them from a forced marriage situation, in the form of Forced Marriage Protection Orders. Any of the 15 designated county courts, or the High Court, may make an order to prevent a forced marriage from occurring; to hand over passports; to stop intimidation and violence; to reveal the whereabouts of a person; or to stop someone from being taken abroad. An order can be sought on a victim's behalf by a third party, including the police and local authorities. Those who fail to obey an order may be found in contempt of court and imprisoned for up to two years.

7.  Our predecessors recommended that the Government produce an initial progress report one year after the implementation of the Act, followed by fuller reports in following years. In November 2009, the Ministry of Justice accordingly published One Year On. The review found that 86 Forced Marriage Protection Orders were issued in the first year of the Act, which the Ministry described as "more than we anticipated". On the positive side, the police were found to have been very active in pursuing orders and the process was judged straightforward to use; however, degree of use varied by locality, and there was concern about underuse in some areas due to fear of approaching the courts and fear of offending the local communities; some local authorities had been slow to get involved; and there was a need for better understanding of the impact of an application on a young person in terms of long term protection and support. No breaches were recorded. [7]

8.  No further progress reports have been published by the Ministry of Justice. As of the end of February 2011, 293 orders had been issued.[8] Karma Nirvana told us that the Act had been "a positive step forward" but highlighted a number of outstanding concerns with its implementation. Firstly, the organisation noted that "there has been no real penalty for breaches of Forced Marriage Protection Orders bar one recent penalty of imprisonment", which "lessens the Forced Marriage Act's deterrent effect".[9] Only five breaches had been recorded as of December 2010: in two cases, lack of evidence and the unwillingness of the victim to cooperate meant that allegations could not be proceeded with; in a third case, the previous order was extended by nine months; in a fourth, bail was awarded conditional on restriction of behaviour of the respondent in relation to some of the witnesses; and in a fifth, the hearing had been adjourned.[10] However, on 14 February 2011, the first jail sentence for breaching an order was handed down: Lydia Erhire refused to sign documents allowing for the repatriation of her son after he was allegedly taken from the UK to Nigeria against his will and was jailed for eight months.[11]

9.  There appears to be little, if any, monitoring of an order once made, which is likely to account for such a low level of recorded breaches; certainly the Ministry of Justice was "surprised" that no breaches were recorded during the first year of the Act's operation.[12] Jasvinder Sanghera pointed out that:

I am not aware of any other injunction in this country under which the individual is returned to the perpetrators. In these cases, forced marriage protection orders are issued to our victims, in the main minors, then those victims are returned to multiple perpetrators in that house. Once that front door closes, I am not aware of who is monitoring the implementation of that order because the named people may not be intimidating them but, believe me, there are many other family members that are. Then our victim is put under great pressure and that is a huge concern to us.[13]

Karma Nirvana added that "some professionals obtain Forced Marriage Protection Orders for minors and deem this as the 'problem solved', without any real appreciation for the further risks that this may cause."[14]

10.  Of perhaps even greater concern is an apparent lack of awareness on the part of many professionals of Forced Marriage Protection Orders: evaluation carried out by Karma Nirvana at a series of road shows showed that 70% of professionals in attendance had not heard of the Act, nor did they feel the duty to implement the statutory guidance associated with it.[15] This reflected evidence taken by our predecessor Committee from the Crown Prosecution Service in 2010, particularly in relation to local authorities.[16] Karma Nirvana considered that all local authority solicitors and safeguarding board members should undertake training in the Act in order to include its measures in child protection procedures.[17] The Government's Forced Marriage Unit is in the process of reviewing implementation of the statutory guidance with a view to identifying patterns, good practice and possible areas for improvement by relevant agencies; the report is due to be published in spring 2011.[18] Cris McCurley, a family law practitioner, noted that the Forced Marriage Designated Courts Resource Manual, introduced in May 2010, has not yet been made public, although this would be of benefit to the vast majority of practitioners who do not currently have access to it.[19] We return to the issue of awareness and training in chapter three.

11.  The passing of the Act in 2007 followed a debate about the most appropriate means of legislating against forced marriage, including the option of criminalisation. Our predecessors concluded that "it would not be appropriate at this time to create a specific criminal offence of forced marriage." However, they considered it "imperative that the implementation and effect of the Forced Marriage Act is monitored with extreme care" and that the question of criminalisation should be revisited if "concrete progress in reducing the prevalence of forced marriage and increasing the safety of victims could not be demonstrated".[20] On this point, Cris McCurley wrote to us that:

Forced marriage is not a crime but a much stronger, healthier message would be sent ... if it were. A review of the 2005 report on the question of whether to criminalise forced marriage inexplicably recorded that the decision was taken not to criminalise it as black and minority ethnic communities may feel targeted. I cannot think of another criminal offence that has been considered and rejected on the basis that the perpetrators might feel "got at". The argument that criminalisation would discourage reporting is also spurious; if the victim were given the choice of a civil or a criminal route (such as with the Protection from Harassment Act 1997) then they would have the protection, and the choice.[21]

12.  We are pleased that victims and professionals are utilising the provisions of the Forced Marriage (Civil Protection) Act 2007, with 293 Forced Marriage Protection Orders made during the two years and four months following its enactment. However, the evidence presented to us suggested inadequacies in the monitoring of compliance with an order after it is made and a lack of effective action in cases of breach, with only one person receiving a jail sentence for breach of an order thus far. We echo our predecessors in recommending that the Government undertake and publish a further review of the operation of the Forced Marriage (Civil Protection) Act by the end of this calendar year, and then on an annual basis, in particular to investigate how orders are monitored, the real level of breaches and the judicial response to recorded breaches. It is not at all clear that the Act is wholly effective as a tool in protecting individuals from forced marriage and from repercussions from family members. While the measures in the Act should continue to be used, we believe that it would send out a very clear and positive message to communities within the UK and internationally if it becomes a criminal act to force—or to participate in forcing—an individual to enter into marriage against their will. The lack of a criminal sanction also sends a message, and currently that is a weaker message than we believe is needed. We urge the Government to take an early opportunity to legislate on this matter.

13.  We are also concerned at the level of awareness of the Act's provisions amongst frontline professionals. We look forward to receiving a copy of the review currently being undertaken by the Forced Marriage Unit of the execution of the statutory guidance on forced marriage and recommend that this include consideration of measures to extend its implementation across all agencies in all parts of the country. We further recommend publication of the Forced Marriage Designated Courts Resource Manual so that it is available to all professionals practising in this area.

Amendment to the Immigration Rules regarding marriage visas

14.  At the time of our predecessors' inquiry, the Immigration Rules required marriage visa sponsors and their incoming spouses to be over the age of 18 but the Home Office was considering raising the minimum age as a means of preventing forced marriage. On the basis of the evidence presented to it, our predecessor Committee concluded that:

Survivors told us that raising the age of sponsorship for marriage visas from 18 to 21 could better equip victims to refuse an unwanted marriage. However, associated with such a change is a significant risk that young people would be kept abroad for sustained periods between a marriage and being able to return to the UK with their spouse.

We have not seen sufficient evidence to determine whether or not raising the age of sponsorship would have a deterrent effect on forced marriage. Given the potential risks involved, we urge the Government to ensure that any changes it proposes to its policy on visa application procedures in respect of sponsorship are based on further research and conclusive evidence as to the effect of those changes.[22]

15.  With effect from November 2008, the previous Government amended the Rules to increase the minimum age of sponsorship to 21, after research had satisfied the then-Home Secretary that the targeted age group was particularly vulnerable to this form of abuse and that there was no practical way of differentiating within it between forced and voluntary marriages. However, on 21 December 2010 the Court of Appeal ruled that this amendment, notwithstanding its proper objective, was a disproportionate inhibition on family and private life and on the right to marry, as guaranteed by Articles 8 and 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In the Court's view, the "arbitrary and disruptive impact" of the Rule on the lives of a large number of innocent young people made it impossible to justify.[23] We note that this matter is still currently before the courts.

16.  Karma Nirvana supported the change in the Immigration Rules on the grounds that:

We at Karma Nirvana have received feedback from victims that they have been helped by the rule. On the helpline we receive a number of calls from potential victims (and professionals on their behalf) under the age of 21 years asking about their 'legal' position.  Most, if not all, seem quite relieved to find that they have extra 'breathing space' in which to make up their minds.[24]

17.  However, Southall Black Sisters disagreed that the change has had a positive effect, stating that "it does not in reality protect victims from forced marriage, but simply increases pressures on them to remain within an abusive situation, and discriminates against migrant communities."[25] In evidence to our predecessor Committee in March 2010, Nazir Afzal of the Crime Prosecution Service, had mixed views:

I have spoken to several members of the third sector and police officers ... and they tell me that it has had a very positive effect in terms of the people who would ordinarily have been forced into marriage at an earlier age ... several hundred women have not been forced into marriage because they have been given the opportunity to wait until beyond 21 ... It has sent out a message to some families and to some communities that they need to be taking this a little bit more seriously than they have done. However, there has been an increase in relation to fraud involving birth certificates obtained abroad for individuals who are trying to pretend that they are 21 when they are not.[26]

18.  We have received mixed evidence about the impact of the change in the Immigration Rules in 2008 to require sponsors of marriage visas and their incoming spouses to be over the age of 21. We recognise that the change may be seen as discriminatory and has the potential for young people to be held in abusive situations for longer; however, it has undoubtedly helped a number of young people to resist forced marriage.

7   Ministry of Justice, One Year On: the initial impact of the Forced Marriage (Civil Protection) Act 2007 in its first year of operation, 2009 Back

8   Data provided by the Ministry of Justice Back

9   Ev 19 Back

10   Data provided by the Forced Marriage Unit to the Equalities Committee of the Scottish Parliament, December 2010, Back

11   "First person jailed for breaking forced marriage laws", Solicitor First, 15 February 2011 Back

12   Ministry of Justice, One Year On: the initial impact of the Forced Marriage (Civil Protection) Act 2007 in its first year of operation, 2009, para 30 Back

13   Q 64 Back

14   Ev 19 Back

15   Ibid Back

16   Oral evidence taken before the Home Affairs Committee on 9 March 2010, HC (2009-10) 429, Q 26 Back

17   Ev 19 Back

18   Home Office, Call to End Violence Against Women and Girls Action Plan, March 2011, Actions 34, 50, 51 Back

19   Ev 29 Back

20   Home Affairs Committee, Sixth Report of Session 2007-08, Domestic Violence, Forced Marriage and "Honour"-Based Violence, HC 263, paras 412-414 Back

21   Ev 24 Back

22   Home Affairs Committee, Sixth Report of Session 2007-08, Domestic Violence, Forced Marriage and "Honour"-Based Violence, HC 263, paras 110-111 Back

23   England and Wales Court of Appeal (Civil Division) Decisions, Quila & Ors v Secretary of State for the Home Department & Ors [2010] EWCA Civ 1482 (21 December 2010) Back

24   Ev 18 Back

25   Ev 22 Back

26   Oral evidence taken before the Home Affairs Committee on 9 March 2010, HC (2009-10) 429, Qq 1, 3 Back

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Prepared 17 May 2011