Legislative Scrutiny: Anti-social Behaviour, Crime and Policing Bill - Human Rights Joint Committee Contents


3  Forced marriage (Part 9)

77.  The Bill has two provisions concerning forced marriage: one criminalising the breach of a forced marriage protection order, and one criminalising forcing someone to marry.[62]

Criminal offence for a breach of a forced marriage protection order

78.  Clause 103 criminalises a breach of a forced marriage protection order ("FMPO"). Part 4A of the Family Law Act 1996 empowers a court to make a FMPO for the purpose of protecting a person from being forced into a marriage or a person who has been forced into a marriage. Currently, a breach of a FMPO is punishable as a civil contempt of court. Clause 103 makes the breach of a FMPO a criminal offence for which arrest without warrant is possible. This mirrors the existing offence of breach of a non-molestation order in section 42A of the Family Law Act 1996.

79.  The Government states that the new offence will allow the breach of a FMPO to be dealt with more efficiently and effectively. At the moment, if no power of arrest was attached to the original order, the victim has to apply to the civil court for an arrest warrant. According to the Government, making the breach of a FMPO an offence for which arrest without warrant is possible will allow for more effective enforcement action.[63] We welcome the criminalisation of a breach of a forced marriage protection order as a positive measure in improving the effectiveness of the current civil mechanism.

Forced marriage as a criminal offence

80.  In its Impact Assessment, the Government outlined that the new criminal offence of forced marriage is necessary, in addition to the civil regime, "to act as an effective deterrent, to properly punish perpetrators and to fulfil our international obligations under the Council of Europe -Convention on preventing and combating violence against women and domestic violence".[64]

81.  We wrote to the Government to request further information about its rationale for the criminalisation of forced marriage, and to ask the Government to explain the steps it intends to take to ensure that criminalisation is not counter-productive.

82.  In response, the Government referred to its consultation. It stated that the majority view expressed was that forced marriage should be criminalised.[65]

83.  The Government also set out detail as to why it considers Part 9 to enhance rights contained in the UNCRC, particularly the following rights:

—  Article 16, which guarantees a child's right to privacy and family life.

—  Article 19(1), which ensures the protection of the child from all forms of physical or mental violence, injury or abuse, maltreatment or exploitation, including sexual abuse

—  Article 24(3), which requires state parties to take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

—  Article 34, which requires state parties to undertake to protect children from all forms of sexual exploitation and sexual abuse.

—  Article 35, which requires state parties to take all appropriate national, bilateral and multilateral measures to prevent the abduction of children for any purpose or in any form.

—  Article 36, which requires state parties to protect the child against all other forms of exploitation prejudicial to any aspect of their welfare.[66]

84.  The Government's UNCRC analysis is welcome. However, it fails to address significant concerns that the criminalisation of forced marriage may be counter-productive.[67] 37% of responses to the Government consultation were opposed to criminalisation.[68]

85.  The Office of the Children's Commissioner for England has highlighted a number of arguments to suggest that criminalisation of forced marriage would not necessarily have a positive impact on children's best interests.[69] In its Child Rights Impact Assessment of the Bill, it concluded:

"There is limited evidence on which to assess the likely impact on children of a creation of an offence of Forced Marriage. Where children are involved, forced marriage must be understood and addressed as an integral part of child protection policy and practice, and a range of laws already exists which make this possible. We recognise the symbolic value of an offence of forced marriage, however, it is not clear how this provision will translate into practical action which is in children's best interests. There are significant concerns about the impact of criminalisation on the willingness of children to seek help. Careful monitoring of the impact of this change on children will be required."[70]

86.  Some organisations do not agree with the Government's view that criminalisation of forced marriage is required to enable the UK to ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence,[71] as the behaviour employed in forcing an individual to marry against their will is already criminalised (for example, violence, kidnap, psychological and sexual abuse, aiding and abetting rape), and that the introduction of a specific aggravating factor of procuring a marriage to existing offences would satisfy the Convention's requirement.[72]

87.  The Government acknowledges that there is already a range of criminal offences that tackle the behaviour typically associated with forcing someone to marry, but that a specific offence of forcing someone to marry is required.[73] In its response to us, the Government points out that the current civil remedy will continue to exist alongside the new criminal offence, which means that a victim could choose to take the civil route, or go to the police.

88.  The Government's response goes on to set out some of its recent policy work in relation to forced marriage education and prevention. It states that this work will inform how it engages with communities ahead of, and following, enactment of the new law on forced marriage.

89.  We cautiously accept the Government's reasoning for the criminalisation of forced marriage. However, given the concerns expressed about criminalisation during the Government consultation process, it is clear that careful implementation and monitoring of the new law will be required. It is essential that criminalisation is accompanied by additional measures to ensure that the law is effectively implemented. There has not been a successful prosecution of female genital mutilation since it was criminalised 28 years ago, and it appears that the practice remains widespread, which demonstrates that criminalisation alone is not sufficient. We therefore recommend that:

  • the Crown Prosecution Service develops a strategy on prosecutions of forced marriage. In developing such a strategy, there should be consultation with relevant stakeholders; and
  • the Government reports to Parliament annually on the effectiveness of the criminalisation of forced marriage.



62   Clauses 103 and 104 of the Bill Back

63   Impact Assessment, Anti-social, Crime and Policing Bill, 8 May 2013, p 20-21 Back

64   Impact Assessment, Anti-social, Crime and Policing Bill, 8 May 2013, p 19 Back

65   Letter to the Chair from Damian Green and Jeremy Browne, 16 July 2013, Q 24; Home Office Forced Marriage Consultation-summary of responses, June 2012 Back

66   Letter to the Chair from Damian Green and Jeremy Browne, 16 July 2013, Q 1 Back

67   As outlined in the Home Office Consultation response by the following organisations: Odysseus Trust, Response to the Home Office Consultation on Forced Marriage, paras 61-65; Liberty, Anti-social Behaviour, Crime and Policing Bill Commons Briefing; Southall Black Sisters, Response to the Home Office Consultation on Forced Marriage, March 2012; Odysseus Trust, Response to the Home Office Consultation on Forced Marriage; OCCE, A Child Rights Impact Assessment of the Anti-Social Behaviour, Crime and Policing Bill, June 2013, pp 31-34 Back

68   Home Office Forced Marriage Consultation- summary of responses, June 2012 p.5 Back

69   OCCE, A Child Rights Impact Assessment of the Anti-Social Behaviour, Crime and Policing Bill, June 2013, pp 31-34 Back

70   OCCE, A Child Rights Impact Assessment of the Anti-Social Behaviour, Crime and Policing Bill, June 2013, p. 34 Back

71   The UK signed the Convention on 8 June 2012.Article 37 of the Convention requires Parties to take necessary legislative or other measures to ensure that the intentional conduct of forcing an adult or a child to enter into a marriage is criminalised. Back

72   Odysseus Trust, Response to the Home Office Consultation on Forced Marriage, paras 61-65 Back

73   Impact Assessment, Anti-social, Crime and Policing Bill, 8 May 2013, p 19 Back


 
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Prepared 11 October 2013