Anti-Social Behaviour, Crime and Policing Bill

Written evidence from Dr Aisha K. Gill (ASB 38)

Forced Marriage

The Forced Marriage (Civil Protection) Act 2007 (FMCPA) came into force on 25 November 2008. It was accompanied by an implementation manual entitled Right to Choose: Multi-Agency Statutory Guidance for Dealing with Forced Marriage. The first review report on the FMCPA, published by the Ministry of Justice (MOJ) in November 2009, was positive in many respects, though it expressed concern over variations in the uptake of the Act, questioning whether it had not been used at all in some areas due to a lack of understanding of (a) the legislation or (b) the impact of FM on victims in terms of the support they require. No breaches of Forced Marriage Protection Orders (FMPOs) were recorded. The MOJ has published no further reports on the efficacy of the FMCPA.

Thirty months after the FMCPA was implemented, and 18 months after the MOJ’s review, the Home Affairs Select Committee published its eighth report on FM in May 2011 [1] . This report highlighted a number of concerns centred on what it perceived as the inadequate monitoring of compliance with FMPOs and the lack of effective action in cases of reported breaches, only one of which lead to a conviction involving imprisonment. Thus it was suggested that ‘it was not at all clear that the Act is wholly effective as a tool in protecting individuals from forced marriage. It recommended that criminalising FM would a very clear and positive message to perpetrators worldwide. However, the report relies on information wholly unsupported by any corroborative evidence: this information was provided by Jasvinder Sanghera, on behalf of the NGO Karma Nirvana, and Cris McCurley, a solicitor, both operating in the North East. On 26 May 2011, the FMU set up an NGO roundtable meeting to discuss the report’s recommendation that a specific criminal offence concerning FM be created.

Between February and July 2011 an independent consultation was conducted by Criminologist Dr Aisha Gill at Roehampton University’s Social Research Centre to explore the results of the roundtable meeting further with the attendees and their organisations. The group submitted its finding in July 2011 to the FMU and the Coalition Government: a summary of this report was published in December 2011 in Family Law. Over half the participants took the view that FM should not be criminalised. Moreover, 64% felt that the existing legislation was adequate both to deal with the perpetrators of FM and to protect victims (Gill, 2011).

The pros and cons of criminalisation

Many who support criminalisation believe that, since FM is an infringement of human rights, the State has a legal obligation to protect victims and punish perpetrators (Gill and Anitha, 2009). However, for criminalisation to be effective, a distinction would need to be made between the practices of forced marriage and arranged marriage. This is far from simple: even trained professionals struggle to distinguish between the two in some cases as there is a significant grey area in between. It would be difficult enough to provide sufficient training for all criminal justice professionals involved in FM cases to make effective distinctions, but all jury members in FM cases would also need to be adequately informed.

Setting aside these practical issues, proponents argue that the law has an important symbolic value (Gill and Anitha, 2009), citing how the criminalisation of female genital mutilation sent a powerful message to communities that seek to perpetuate the practice. However, the practice is known to continue in Britain and yet there has not been a single successful prosecution made under this legislation. As such, it is at all not clear that merely making FM a criminal offence would automatically ensure that it has a deterrent effect. In communities where FM is prevalent, self-interest is often considered secondary to the need to fulfil obligations to one’s extended family and the wider community: many black and minority ethnic communities in Britain originate from clans and tribes where loyalty to the clan takes precedence over all other relationships. Given that this ideology often lends legitimacy to a range of heinous crimes, including FM and so-called ‘honour’ killings, even knowing that these actions are considered criminal is unlikely to exert a significant deterrent effect on perpetrators either domestically or internationally.

A number of European countries, including Norway, Denmark and Austria, have criminalised FM. However, no research on the success of this legislation has been published to date. The Scottish Government, having investigated these European examples, opted to forgo criminalisation of FM. The Forced Marriage (Protection and Jurisdiction) (Scotland) Act 2011 [2] follows the pattern of the English civil statute, differing only in that, in common with domestic violence legislation, in the event of a protection order being breached a maximum term of two years imprisonment is applicable on conviction on indictment (i.e. the same term as may be imposed under a successful committal application) rather than the five years applicable to breaches of domestic violence injunctions in England. In any event it may be significant that to date Scotland has not dealt with a single application for a FMPO.

Over the last four years, the number of FM cases dealt with by the courts has risen annually. In some areas there has been a 40% increase. Since being named a "relevant third party", local authorities have been vigilant in working to identify cases of FM and in taking immediate action using the FMCPA, in conjunction with care proceedings, to obtain the appropriate orders to protect victims and potential victims. Had the courts failed to grant the appropriate protective orders, this would have been identified in appeals.

The Home Affairs Select Committee’s May 2011 report is also critical of the lack of monitoring currently undertaken after FMPOs are made under the FMCPA. However, in this regard it relies almost solely on Karma Nirvana staff-member Jasvinder Sanghera’s views [3] :

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 victims, in the main minors, then those victims are returned to multiple perpetrators in that house.

This statement shows a lack of understanding of the law as it relates to children. In most, if not all, cases where FM is an issue, care proceedings are issued and statutory protection measures are put in place. The majority of victims desire to return home and often do so once the FMPO and appropriate protective orders under the Children Act 1989 are in place: suggesting that in every case victims of FM should be removed from their family home is to ignore both victims’ wishes and the fact that when victims are removed from their normal environment through a protection order they often find it difficult to adjust. It would also represent a breach of both the European and United Nations Conventions on the Rights of the Child: disregarding victims’ wishes would infringe their right to respect for their private and family life.

Moreover, when a FMPO is obtained by the police, arrangements are usually made for the victim to remain in contact with the police and vice versa. The local authority and relevant education authorities will also be alerted. Similarly, in cases where the local authority has instigated the proceedings. All information that is received is shared at regular the Multi-Agency Risk Assessment Conference ( MARAC ) meetings, though it would be useful for guidelines to be introduced to ensure that these meetings occur more frequently. After an initial, successful experience of dealing with the authorities, many young people acquire the confidence and trust to inform them if any further attempt is made to force them into a marriage or any steps are taken to breach an FMPO made in their interest.

The increasing numbers of applications issued and orders made under the FMCPA is a strong indication that the legislation is effective. However, it is widely acknowledged that current statistics do not accurately represent the scale of the problem (Gill, 2011) as many victims are reluctant to report problems as they fear not only that their families will get in trouble but that, as a result, they will be excluded from both their family and community. Victims often need to be reassured that the protection they seek will be obtained in the family courts and that their families will not be prosecuted.

Stakeholders agree that most victims have little interest in pursuing remedies in the criminal courts: the majority are willing to go no further than the protective orders that civil courts can make. Many will require help from trained specialist professionals able to command their trust to comprehend the differences between the remedies available under the civil versus criminal justice system. Moreover, qualified personnel would be needed to assess the capacity, understanding and maturity of individual victims in relation to their ability to make an informed decision: a significant matter as many are 16 or under and/or have learning difficulties and/or mental health issues. As victims are often extremely vulnerable, thought also needs to be given to the fact that many may be susceptible to even minor pressure to comply with the wishes of the various professionals involved. Moreover, even when victims are able to make an informed choice, the police or the Crown Prosecution Service may conclude that there is insufficient reliable evidence to charge the alleged perpetrator(s) under the new criminal offence. Additionally, there is a real risk that having made the choice the victim on reflection may wish to withdraw the allegations or retract the statement/s made.

It is difficult enough for adult victims to cope with the civil legal process, so the fact that many victims are 16 or under bears careful consideration, especially since some also have learning difficulties and/or mental health disorders. It is challenging enough to get these victims to seek help and to disclose the true facts: experienced NGO professionals often spend days extracting the necessary details to obtain an FMPO. However, these effective working methods would offend against the rules on the making and taking of statements that apply in the criminal justice system which require that the statement must comply with the provisions of The Criminal Justice Act 1967 s 9 and that the statements must record the witness’s own account of facts and that the investigating officer taking the statements should not ask leading questions (CPR r27).

It is not uncommon for victims of FM to give conflicting and contradictory information in different accounts of their experiences of abuse (e.g. in multiple statements taken on different dates). In criminal investigations, all accounts must be recorded and comply with the above provisions and then disclosed to defendants. If a victim’s statements are inconsistent, the defence lawyer will use them to discredit the victim during cross-examination. Moreover, the standard of proof required to successfully prosecute criminal cases is higher than for civil and family cases: to secure a conviction, a person must be found guilty beyond all reasonable doubt. A failed prosecution that results in the victim being discredited may cause her (or his) family and the community at large to feel exonerated, increasing the risk that the victim will then face isolation and perhaps further abuse. This, in turn, could lead to the victim taking drastic measures (e.g. suicide), feeling this to be the only remaining option for escape.

The argument for criminalisation ignores the practicalities of prosecuting FM as a crime and the adverse effect such prosecutions may have on victims, especially given that most FM cases would be heard before a judge and jury. The criminal justice system in the UK is adversarial. The victim, and any witnesses whose evidence is relied upon, are required to give oral evidence and be cross-examined. Evidentiary rules require that full disclosure be made to the defence team of all materials held by the prosecution, whether these are to be used or not. Often confidential and highly sensitive information is gathered by the police, local authorities and other organisations when a complaint is made or information given about a possible FM. If a case goes to court, victims must face the fact that not only will this information be shared and discussed in court, but that they may be questioned by the lawyer(s) for the defence, who may have little interest in sparing their feelings. As it is likely that many FM cases would be vigorously contested if prosecuted in the criminal courts, consideration should be given to the impact on victims and informants of being embroiled as key witnesses in difficult and lengthy public legal proceedings.

The Government also has yet to address the wider issues that afflict young people who are displaced through protection orders, or care and safety plans, under the FMCPA. All the reports published to date have suggested that further training and monitoring is needed: adequate resources need to be provided for this. Moreover, victims who do not return home need extensive support across a wide spectrum of services relating to housing, psychological issues, financial difficulties and their overall welfare as many are financially reliant on their parents: a burden that the State must bear after displacement. As criminalisation would increase the number of victims displaced not just from their family but their community, it is significant that there is no reference in current proposals to how and where displaced victims would be accommodated.

In the case of those who are 16 or under, this burden would fall on already overstretched and cash-strapped local authorities, many of which are struggling to cope with the increasing number of child abuses cases they currently deal with, a problem complicated by a national shortage of suitable foster carers and other placements. Moreover, victims of FM require specialist carers with specific training, sensitivity and understanding not only of the cultural issues involved in housing these young people, but also the specific psychological and emotional needs associated with their traumatic experiences. Victims between 16 and 18 are even more vulnerable as, in the main, they are left to fend for themselves as they are allocated to the Adult Team, who have limited resources; as a result, the support they receive is often haphazard and inadequate. Many come to rely on NGOs.

When the FMCPA was launched, inadequate resources were made available to provide for the needs of victims, both during and after legal proceedings: a situation that is particularly problematic given that many of the support services available to victims of FM were established primarily to deal with domestic violence issues. In the current economic climate, it is telling that there is no reference to the resources (key among them Legal Aid) that will need to be made available to support victims.

July 2013

Selected references

Gill, A. and Anitha, S. (2009) ‘The illusion of protection? An analysis of forced marriage legislation and policy in the UK’, Journal of Social Welfare and Family Law, 31 (3): 257-269. .

Gill, A. (2011) Criminalising Forced Marriage: Findings from an Independent Study, Family Law Journal, December Issue.

Pearce, N., Gill, A. (2012) Criminalisation of forced marriage as stand-alone legislation: Will it work? Family Law Journal, May Issue.

House of Commons Home Affairs Select Committee 2008) Domestic Violence, Forced Marriage, and ‘‘Honour’’- Based Violence (Sixth Report of Session 2007–08). House of Commons, London.