Anti-Social Behaviour, Crime and Policing Bill

Written evidence from Southall Black Sisters (ASB 32)

Public Bill Committee: Anti- Social Behaviour, Crime and Policing Bill – Debate on the Criminalisation of Forced Marriage – Third Sitting Thursday 20 June 2013

We are somewhat surprised that in the course of the discussion on forced marriage at the above sitting, the Public Committee chose to invite two representatives from organisations that support the government’s proposals to criminalise forced marriage. In the interest of balance and to ensure that there is proper scrutiny and democratic debate on the subject, we expected the Committee to have shown an interest and willingness to also hear from and engage with those who oppose the proposals and who have exceptional track records stretching over 3 decades or more on addressing gender-based violence against minority women and interrelated issues.

In view of this significant omission, we would like to make the following submission. Our aim is to ensure that a more robust and informed scrutiny is brought to bear on the proposal.

We set out our submission in two sections. The first part highlights some key overall concerns regarding the criminalisation of forced marriage. This section is based on a comprehensive submission that we made in March 2012, in response to the Home Office Consultation on the subject. (See Annex – NOT PUBLISHED) The second section comments on the oral evidence given by the representatives from Karma Nirvana and the Freedom Charity and makes additional points.

Section 1

1. We are not opposed to the criminalisation of forced marriage in principle. We support the proposal to criminalise any breach of a protection order obtained under the Forced Marriage (Civil Protection) Act, because perpetrators would have been placed on notice. We understand too that the criminal law can have symbolic value but we question whether it will be workable or viable as a deterrence measure. Our experience shows that few if any vulnerable young persons are willing to come forward to report a forced marriage if they believe that their parents will face criminal prosecutions and possible imprisonment.

2. The symbolic value of any criminal law on forced marriage will be greatly diminished if perpetrators know that it will not be used. They will continue to flout the law with impunity.

3. We support the proposal to introduce forced marriage as an aggravating feature during the sentencing stage of criminal proceedings. This will also have a symbolic and deterrence value.

4. Although it is difficult for young people to report their parents, they are nevertheless coming forward to seek protection for themselves. Our experience shows that the Forced Marriage (Civil Protection Act) 2007 has been a very effective protection mechanism and is being widely utilised. However, we fear that the criminalisation of forced marriage will deter vulnerable persons from coming forward and will lead to a vast reduction in the use of this and other civil remedies.

5. Our main concern is that criminalisation of forced marriage will be counter –productive since it will not only deter vulnerable people from coming forward, but will also drive the problem further underground.

6. For many young persons, talking the step to support the prosecution of those who they love in what are often complex family relationships will be perceived too drastic a step to take because it will permanently close the door on any future rehabilitation, however tenuous that may be. Many young women and girls who come from closed communities in particular, are psychologically unprepared to live independently and require considerable support to do so. Acute isolation and lack of adequate support structures are often the most cited reasons for young persons returning to their families following reports of forced marriage. If such women and girls are forced to support criminal proceedings, they may think twice about reporting a forced marriage since they will not want to risk being isolated without any hope of rehabilitation in the future.

7. Our view is that the focus should be on existing civil and criminal laws and guidelines on forced marriage to ensure that they are robustly implemented. Inconsistent enforcement of the current law remains the most problematic aspect of State response to forced marriage. Improved enforcement will also serve a symbolic and educative function in creating a culture of zero tolerance towards forced marriage. There is for example no specific criminal offence of domestic violence but that has not prevented a culture of zero tolerance on domestic violence from emerging – this has been achieved through awareness raising campaigns, better policing and monitoring, early intervention projects in schools and colleges and the establishment of specialist refuges and other services all of which are now under immense threat due to public spending cuts.

8. This is one area where a law cannot remain ‘resource neutral’ mainly because adequate support structures need to be in place to ensure long term protection and independence. Without these no vulnerable person would be willing to risk coming forward to support criminal prosecutions. The cost of pursing criminal prosecutions for victims is potentially life threatening. However, the massive cuts in legal aid, welfare and housing benefits and educational grants that we have witnessed will deter young people from coming forward to report their families, particularly as most are wholly and financially dependent on them. Our view is that they will not support criminal proceedings if they are no viable alternatives to living with their family and if it means that by doing so they sever all hope of future contact with their families and communities.

Section 2

9. We are concerned that the government is pressing ahead with the proposal to criminalise forced marriage in England and Wales, when it has yet to examine the impact of laws criminalising forced marriage in other jurisdictions including Scotland where a law on the criminalisation of a breach of a forced marriage order exists. [1] To our knowledge, since the introduction of the law in Scotland, no criminal proceedings for a breach of a forced marriage protection order has been brought. This may be due to variety of reasons such as a lack of awareness on the part of the police and prosecution services or because there have been no or relatively low level breaches of such orders but it could also be the result of victims simply being unwilling to come forward to report a breach or give evidence in support of a prosecution. At the very least, we would expect the government to examine the effectiveness or otherwise of the criminalisation of forced marriage in other jurisdictions before introducing such laws in England and Wales.

10. Similarly, we are concerned that in England and Wales although the present criminal law allows for those who have committed offences under the heading of forced marriage, including abduction, threatening behaviour, assault and violence to be prosecuted, no such prosecutions have taken place. If as the representative from Karma Nirvana pointed out in her oral evidence, there are 6,779 forced marriage cases reported on their helpline every year we would have expected that at least some of these cases which would have been deemed appropriate to prosecute on the basis that serious offences have been committed. In any event, we doubt the accuracy of the figures provided by Karma Nirvana, since the organisation does not distinguish between forced marriage, honour based crimes and domestic violence cases. Although awareness and enforcement of gender based violence cases remains patchy or inconsistent throughout the police services in the UK, it is not so lacking as to result in no attempt at prosecution. We are of the view therefore, that the government should carry out research into why forced marriage cases in the UK have not resulted in any prosecutions under the existing criminal law before introducing a law that may not work.

11. It is claimed by the representative of the Freedom Charity that the proposal to criminalise forced marriage is wholly victim focused and that it is based on prevention. This is not our view or experience. Indeed the problem with the criminalisation proposal is that it takes control and choice away from the victim. For example what will happen if the victim withdraws her allegations and decides not to support a prosecution? What happens if she turns into a ‘hostile victim’? It is unclear how the police and CPS will deal with this situation. We are also concerned that prioritising criminal proceedings will result in more pressure being put on victims by family and community members to make them withdraw reports to the police.

12. On the other hand, under the Forced Marriage Act, if a victim wants to lift a forced marriage protection order, there is effective judicial oversight over the process, especially if she returns to her family. Therefore the view expressed by the representative from Karma Nirvana that a forced marriage protection order is not monitored behind closed doors is simply not accurate. In cases where a forced marriage protection order is granted and then the victim requests it to be lifted, experts are usually instructed by either family lawyers or local authority departments with permission from the courts, to assess the risks and to assess the overall needs and circumstances of the victim in the light of her history and background. This report is then placed before a judge who makes a final decision based on all the evidence before him/her. SBS is often instructed to provide such reports and our experience in doing so leads us to believe that it is a particularly effective mechanism of monitoring and prevention, precisely because it involves judicial oversight through the entire process.

13. Protection orders obtained under the Forced Marriage (Civil Protection) Act 2007 offer much better potential for prevention because the orders can be more finely tuned to fit an individual’s circumstances and needs. What they are designed to do is to ensure that a victim can obtain immediate emergency protection. It also gives some respite to a victim to think through her options in respect of her long term needs which she cannot do if a prosecution proceeds since it will remove any space that a victim may have for manoeuvre. Sometimes proceedings of this kind force perpetrators to understand that they cannot impose their will and so change their minds and in other cases, civil proceedings provides a victim with the space she needs to build her own life but with the option of establishing some sort of relationship with her family in the future. This option will be taken away if the State insists on prosecutions in circumstances where she is reluctant or unwilling.

14. One significant outcome of compelling victims to pursue criminal proceedings in forced marriage cases is that it is very likely to permanently sever all ties between victims and their families including with sympathetic siblings with whom, in our experience victims often stay in touch. (See our submission to the consultation on this point) Any prosecution and conviction of family members will make it immensely difficult if not impossible for victims to re- establish contact or reconcile with their families in the future. Our experience shows that with time, many victims are eventually rehabilitated with their families, often on their own terms. The hope of re-establishing family relationships at some point in the future remains an important goal for many victims. However, the prospect of rehabilitation is likely to be diminished if victims are perceived to have supported criminal prosecutions which have wider ramifications for families.

15. Criminalisation of forced marriage is not about prevention since it is important to also note that by the time criminal proceedings take place, the forced marriage will already have taken place, probably abroad by perpetrators seeking to circumvent this jurisdiction. A case may have got so far that it may be too late to do anything about it. That is why the most effective measure is to focus on prevention by providing the resources and training to those who are in a position to do something before it occurs – the teacher or social worker who notices that a particular child has been absent from school or a slump in academic performance, or any one of a number of the published indicators and can therefore put protection measures in place. This has to be the main priority. Our fear is that the criminalisation route will force key professionals to give priority to the criminal route and this will also add to the trauma experienced by a vulnerable person who is likely to fear the prosecution of their parents or the process of going through a criminal trial.

16. The case of the young woman from Luton forced into a marriage cited by the representative from Karma Nirvana in her oral evidence, where there is a breach of a forced marriage protection order, could in our view, be just as effectively dealt with by the proposal to criminalise the breach of a forced marriage protection order. The pressure that was put on her by her parents to have the protection order lifted is precisely the kind of risk assessment that is directed by the Courts when deciding whether or not to discontinue a protection order as discussed in paragraph 12 above. It is also the kind of pressure that a specialist agency would also be alert to and would address as part of the support services that it offers if such a service exists. The case that is cited therefore is more relevant in highlighting the acute shortage or absence of support structures and resources needed to provide effective protection rather than in highlighting the need for a criminal law on forced marriage. Indeed it could be argued that had a criminal law been in place, the young woman would have been under even greater pressure to withdraw her support for any criminal charges and may even have been subjected to or threatened with serious harm for non compliance. Her awareness of the potential criminalisation of her parents may have in fact deterred her from going to the police station in the first place.

17. We are also concerned that innovative projects on preventing forced marriage will cease if the focus shifts to criminal law. For example we are working jointly with the Forced Marriage Unit on a repatriation project providing support to young women and girls rescued abroad and repatriated to the UK. Whilst these women and girls have requested support in re-building their lives once in the UK, none have expressed any desire to have their families or relatives prosecuted, despite often being subject to adduction, imprisonment and violence abroad. The repatriation project has also involved working on an innovative pilot project aimed at identifying vulnerable young girls or persons who find themselves at ports of exit and entry in the UK. We are currently working with the police and security staff in patrolling such ports of exit and entry and will be reporting on the outcome of the project shortly. We have also just completed a 2 year project funded by Comic Relief with support from the Forced Marriage Unit on undertaking prevention work on forced marriage and all forms of gender-based violence in local schools. This is currently being evaluated and it is hoped that resource packs produced will be used by schools across London. Early results form the schools project show that working in schools on gender-related violence issues has had a significant impact in changing attitudes and behaviour across the school community. The project has had a positive impact in changing the ethos of schools and both pupils and teachers have show increased understanding and willingness to help a victim of abuse by sign posting to appropriate agencies. However, these important projects are insufficiently funded if at all, and we fear that any shift in priority will distract from the key prevention and training work that needs to take place in schools and colleges.

18. Our experience shows that the education system has been the slowest to respond to the need to address forced marriage. There needs to be considerable attention on increasing awareness and creating monitoring mechanisms for all forms of gender-related violence and equality issues in schools. Issues such as child sexual abuse, sexual grooming, forced marriage, ritual abuse, female genital mutilation and many others are not properly covered in PSHE classes with the result that many children simply do not recognise warning signs or know how to stay safe. Indeed, our experience shows that children from some communities are withdrawn from these classes on religious grounds although it is precisely such classes that are likely to help them increase their awareness and seek appropriate support. We would like to see PSHE classes become compulsory in all schools so that all children have access to information delivered in a sensitive and age appropriate way. More work also needs to be done to train Ofsted inspectors. We are of the view that heads of secondary schools and further education colleges have an obligation to provide clear and well publicised information on a range of gender-related violence issues and Ofsted has an important role to play in monitoring how these issues are addressed.

19. It is well recognised, the motives for forced marriage are varied and complex. By and large they stem out of and reflect patriarchal forms of control in which family and community members, including some women collude. At the heart of forced marriage cases is the perceived need to control female sexuality which is why it is often associated with the issue of honour based crimes. For this reason, we would urge utmost caution on making a direct link between forced marriage and the desire for immigration to the UK. SBS intervened successfully in the Supreme Court case of Quila and Bibi in 2011 [2] in which the link between forced marriage and immigration, in that case concerning under 21 year olds, was examined in depth. It was accepted by the Supreme Court that that there are a variety of motivations behind forced marriages, and without empirical evidence that immigration is the (or at least a) primary motivation it may be difficult to categorically determine that an immigration based deterrent is the solution. The apparent focus on immigration as a fundamental aspect of forced marriage is therefore, on the evidence available, an incorrect approach to addressing the problem of forced marriage and potentially counter-productive and dangerous for the victims.

20. Given that there are there are many motivations for forced marriage - including issues of familial control, hiding mental disability or homosexuality and the attempt to seek redress for perceived dishonourable behaviour - to focus specifically on the immigration aspect is to distract from understanding the root cause or causes which may lead to a continuation of the practice. It is, of course, correct that immigration may impact upon forced marriages resulting in movement of the victim (or alternatively the spouse) from a non-EU country but it has no effect upon forced marriages taking place in this jurisdiction or between a UK national and another with residence in the EU and so entitled to travel. It also does not prevent a potential spouse from being brought into the jurisdiction on an alternative visa (for example a visitors or students visa) and married whilst here. Analogous evidence suggests that this has been the experience in Denmark following changes to their immigration policy.

21. Although the immigration aspect may in some cases be a possible root cause of the forced marriage, it is similarly distinctly possible that the immigration aspect, and particularly sponsorship of any necessary spousal visa, is a necessary result of the initial forced marriage whatever the root cause for that might have been. Practical experience also shows that the coercive process may continue past the point of the marriage and through the immigration process. However the use of immigration controls will not necessarily serve to remove the possibility of a forced marriage, and may simply exacerbate the problem by increasing the length of time for which those who would force the victim to marry exercise control over them.

22. We are alarmed by the proposed changes to legal aid which will have an adverse impact on forced marriage cases. In particular, the introduction of the ‘residence test’ to access legal aid will also have the effect of excluding British Nationals from exercising their rights in the UK. We envisage two types of scenarios where young vulnerable women subject to forced marriage will be adversely affected by the residence test since the very issue of ‘lawful residence’ is likely to be in dispute:

· An applicant who travels to this jurisdiction on a lawful visa who is then threatened with forced marriage but who is in the UK less than 12 months;

· A British national who is sent overseas and is threatened with a forced marriage but who cannot meet the first limb of the residence test as she is outside of the UK.

23. The latter scenario is the most common situation that we encounter. In the last five years or so, we have seen an increasing number of calls from desperate young girls and women who are taken abroad, forced into a marriage and then abandoned there.

Case Example 1: Munira is a 26 year old British National. Three years ago she was taken to Pakistan by her paternal grandparents. Prior to this, her paternal grandmother had been visiting her in the UK and was responsible for taking her to Pakistan. She had a boyfriend in the UK, who came to the attention of her mother who strongly disapproved of the relationship. Her grandmother tricked her into going to Pakistan on the promise that she would allow her to marry her boyfriend as his parents resided in Pakistan. When she arrived in Pakistan, she realised that her grandmother was lying. She was afraid of being forced into a marriage with someone else as her grandmother was introducing her to suitors. She feared that she was being forced to marry someone because she was the eldest of her siblings. She was held against her will in her grandmother’s house in Pakistan for two years. In February 2010, she was forced to marry one of her cousin although she did not give her consent. Eventually, she managed to contact the British Embassy, who with assistance of an FCO facilitated her return to the UK. In an attempt to keep her in Pakistan, her grandmother confiscated her passport. She was then issued with a travel document. On arrival in the UK, her family made several attempts to trace her but she was adamant she did not want any contact with her family.

Case Example 2: Ayesha is a British National. Her parents separated four years ago and she lived with her mother in the UK. She has three younger siblings. Although her parents were separated, her father continued to reside in the same area. She faced considerable abuse from her mother throughout her childhood. Her mother often held a hot iron to her face and threatened to kill her. She was also kept isolated from her friends. Ayesha did not have a stable relationship with her father as he had been party to the abuse that she experienced as a child. Sometime in early November 2012, Ayehsa was locked in her bedroom. Her mother told her that she would only be allowed out if she agreed to go to Afghanistan. On 9 November 2012, she went to Afghanistan, where she was visited by numerous suitors and eventually she was forced into marrying her maternal cousin who was 8 years her senior. Ayesha eventually managed to escape from her husband in Afghanistan and made contact with the Foreign and Commonwealth Office. She was repatriated to the UK. However, the FCO retained her passport in exchange for a loan covering her travel fare back to the UK. She was told that she would have to pay £500.00 to retrieve her passport. SBS also assisted Ayesha in instructing publicly funded family solicitors to commence wardship proceedings to ensure that social services provided her with appropriate support. She also obtained a Forced Marriage Protection Order as her parents were actively trying to trace her.

24. Both Munira and Ayesha would not pass the first limb of the proposed residence test. Both would need to gather evidence of their previous ‘lawful residence’ in the UK. This may be difficult for them to prove, especially if they have no access to documents, as is the case with Munira whose documents have been retained by her family with whom she is now estranged. The residence test will severely hinder victims ability to obtain legal aid in order to secure forced marriage protection orders or commence wardship proceedings. Indeed, they may be refused legal aid for lack of evidence of ‘lawful residence’.

25. It is also important to note that in many forced marriage repatriation cases like that of Ayesha, the Forced Marriage Unit can retain an individual’s passport pending repayment of a loan used to finance their return. In these cases, minors, who have no ‘original’ proof of identity may also be caught out by the ‘lawful residence test’.

26. The proposed residence test will therefore undermine the ability of migrant women and British nationals alike, to exercise their right to protection under the Forced Marriage Act, thereby frustrating the purpose of the Act. It will also undermine the government’s strategy to combat and prevent forced marriage as set out in the document entitled ‘Call to End Violence Against Women and Girls (2010). There is no indication at present that forced marriage cases will be exempt from the residence test.

27. Moreover, for the purposes of the Committee’s scrutiny on the proposal to criminalise forced marriage, the lack of access to legal aid to obtain a forced marriage protection order is also likely to deter a victim from contemplating criminal proceedings since she will not feel protected before, during and after the criminal process.

28. One of the most serious impediments to protection from forced marriage is the lack of specialist black and minority women’s services across the country. It is ironic that at a time when awareness on forced marriage has increased if in a somewhat uneven way, resources to address the issue are diminishing at an alarming rate. For example, funding processes in local areas are working against smaller specialist organisations. More and more black and minority women’s services are under pressure to merge, or become subsumed with larger organisations as local authorities seek to make budget cuts and move towards a commissioning funding model for ‘generic’ services. But the ‘generic’ services often run by housing associations or others do not have the inclination or the ability to carry out the sensitive, labour intensive support that is required in these cases, especially, where they involve the intersection of a number of issues, including immigration matters. Yet without specialist services, vulnerable victims are less likely to pursue criminal charges since they will be left without support and assistance in trying to navigate their way around complex areas of law and procedure. They are likely to be isolated and left to face an uncertain future in circumstances where they may be acutely traumatised.

29. It has long been recognised that specialist domestic violence services are essential to meet the needs of black and minority women, where there is specialist expertise that is sensitive to the issues and risks that they face, leading to increased trust and access to statutory services. Black and minority women’s services have historically arisen out of need in circumstances where generic services have failed to understand and meet their needs. Black and minority women have additional complex needs such as insecure immigration status, lack of knowledge of how systems work in Britain , fear of abduction as well as language barriers which necessitate additional support. They also tend to remain in abusive relationships for longer periods of time before reporting to outside bodies and have disproportionate suicide and homicide rates.

30. However, cuts in public spending have already closed or threatened the closure of specialist services for black and minority women. What funding is available is being channelled towards faith based organisations which seek to address gender issues from a ‘faith perspective’ that greatly undermines the gains in achieving equality that black and minority women have made. The cuts coupled with a ‘multi-faith’ perspective threaten to derail completely the role of secular women’s services as key agents of change in their communities. For example, 2 out of 5 black and minority women’s refuge services in one local authority have closed and two of the remaining four have had funding cuts. [3] The ‘Every W oman S afe Everywhere’ report commissioned by the Labour Party has noted that during the period that its research was undertaken , two specialist black and minority women’s refuges closed in London . [4]

31. Also, it is significant that l ocal authorities h a ve cut the funding of domestic violence and sexual abuse services by 31% between 2010/11 to 2011/12, a reduction from £7.8 million to £5.4 million. O rganisations with smaller amounts of local authority funding of less than £20,000 were disproportionately higher. Between 2010/11 and 2011/12, on average they faced a 70% cut compared with 29% for those receiving over £100,000. As black and minority services are more likely to be smaller specialist services and more dependent on statutory funding, the cuts have had and are having a devastating impact on their services.

32. T here is also growing concern tha t with the loss of Supporting People funding, projects for vulnerable people and in particular black and minority women will be disproportionately impacted . F inancial pressures lead to monies being diverted elsewhere. There has been little or no research into the impact of the loss of Supporting P eople funding on black and minority women. The organisation, Imkaan for instance has reported that funding bodies and commissioners do not adequately evaluate services in order to capture the specialism of the black and minority violence against women sector.

July 2013


[1] The Forced Marriage etc. (Protection and Jurisdiction) ( Scotland ) Act 2011 was passed on 26 April and came into forced on 28 November 2011.

[2] R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45. See http://www.supremecourt.gov.uk/news/latest-judgments.html

[3] 2012, Towers, J. and Walby, S., Measuring the impact of cuts in public expenditure on the provision of services to prevent violence against women and girls, [online] Available at http://www.trustforlondon.org.uk/VAWG%20Full%20report.pdf

[4] 2012, B aird, V. , Everywoman Safe Everywhere , Labour's Commission on Women ’ s Safety, Labour Party, London

Prepared 5th July 2013