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 forceor to participate
in forcingan 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, www.scottish.parliament.uk/s3/committees/equal/inquiries/documents/SuzelleDickson.pdf 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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