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(2) Schedule 5 has effect in relation to the powers of the court to remand a person by virtue of this section but as if the following modifications were made to the Schedule.
(4) Subsection (5) applies if a person remanded under this section is granted bail under Schedule 5 as modified above.
(5) The person may be required by the relevant judge to comply, before release on bail or later, with such requirements as appear to the relevant judge to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.
(1) Any power to remand a person under section 63K(1) may be exercised for the purpose of enabling a medical examination and report to be made if the relevant judge has reason to consider that a medical report will be required.
(2) If such a power is so exercised, the adjournment must not be for more than 4 weeks at a time unless the relevant judge remands the accused in custody.
(3) If the relevant judge remands the accused in custody, the adjournment must not be for more than 3 weeks at a time.
(5) The relevant judge has the same power to make an order under section 35 of the Mental Health Act 1983 (c. 20) (remand for report on accuseds mental condition) as the Crown Court has under section 35 of that Act in the case of an accused person within the meaning of that section.
(3) Section 57(3) to (12) (allocation of proceedings to courts etc.) apply for the purposes of this Part as they apply for the purposes of Part 4 but as if the following modification were made.
(1) The Lord Chancellor may, after consulting the Lord Chief Justice, by order provide for magistrates courts to be included among the courts who may hear proceedings under this Part.
(2) An order under subsection (1) may, in particular, make any provision in relation to magistrates courts which corresponds to provision made in relation to such courts by or under Part 4.
(3) Any power to make an order under this section (including that power as extended by section 65(2)) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under this Part or any other enactment.
(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) to exercise the Lord Chief Justices functions under this section.
The powers of the court in relation to contempt of court arising out of a persons failure to comply with a forced marriage protection order or otherwise in connection with such an order may be exercised by the relevant judge.
(1) The Lord Chancellor may, after consulting the Lord Chief Justice, by order make provision as to the circumstances in which appeals may be made against decisions taken by courts on questions arising in connection with the transfer, or proposed transfer, of proceedings by virtue of an order made under section 57(5) as applied by section 63M(3) and (4).
(2) Except so far as provided for in any order made under subsection (1), no appeal may be made against any decision of a kind mentioned in that subsection.
(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) to exercise the Lord Chief Justices functions under this section.
(1) The Secretary of State may from time to time prepare and publish guidance to such descriptions of persons as the Secretary of State considers appropriate about
(2) A person exercising public functions to whom guidance is given under this section must have regard to it in the exercise of those functions.
force (and related expressions), in relation to a marriage, are to be read in accordance with section 63A(4) to (6);
Baroness Verma moved, as an amendment to Amendment No. 1, Amendment No. 2:
The noble Baroness said: I need not repeat my introduction to the series of amendments I will move today. The majority are merely probing and I look forward to the Ministers response to the questions I will raise.
Amendment No. 2 probes the meaning of wishes and feelings in proposed new Section 63A, which has provoked a number of questions. The phrase wishes and feelings strikes me as somewhat infelicitousI am happy to be correctedas it seems to be setting up an objective test of the value of a persons wishes and feelings. Subsection (3) states that when deciding a persons well-being for the purposes of deciding whether to make a forced marriage protection order,
At what level does the consideration of a persons wishes and feelings cease to be appropriate? Does the Minister believe that consideration of wishes and feelings implies the need for an objective judgment on the value of those wishes and feelings?
I have a few more questions with regard to the implementation and effects of orders made under new Section 63A. Does the Minister envisage that when an order is made under that section, it will encourage, or be of especial assistance to, individuals who make an application for nullity? If a forced marriage protection order is made, will that suffice as evidence under new Section 12C of the matrimonial proceedings Act 1973 that a marriage shall be avoidable on the ground that either party of the marriage did not validly consent to it?
I am grateful for the advice of Alicia Collinson of 2 Harcourt Chambers on many aspects of these amendments, in particular on the effect of the Bill on the concept of duress. The Bill appears to replace the concept of duress with prohibition against forced marriage. I am concerned about that for two reasons. First, recent interpretation of duress in the courts has been wide enough to meet the purposes of the Bill; and, secondly, it could result in certain legal precedents of duress not being applicable to future forced marriage cases. I hope that the Minister can reassure me on these points.
The regulatory impact assessment estimates that under the Bill there will be five to 50 applicants a year. Has the Minister considered that the number could be larger, given that many divorce cases among the targeted communities arise out of forced marriagesor, to put in another way, that there are more forced marriages than the Government have estimated? Has she considered that in future many more victims of forced marriage will seek to use this legislation than is estimated by the Forced Marriage Unit? Has the Minister also considered the implications of the extra cost in this regard?
I am grateful for advice on the Governments amendments from Usha Sood, a family barrister in Nottingham for 40 years who has specialised in cases of forced marriage. She notes that the number of petitioners could be far greater than the
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I refer the Minister to the judgment of Justice Singer in Re SK, as quoted in paragraph 15 of Justice Munbys judgment in NS v MI, where he states:
There is a spectrum of forced marriage from physical force or fear of injury or death ... through to the undue imposition of emotional pressure ... and that a great area then separates unacceptable forced marriage from marriages arranged traditionally which are in no way to be condemned.
In order for it to be effective, it is vital that this legislation is respected by and integrated into communities. Indeed, I am surprised that it is not being conducted in tandem with the Department of Communities and Local Government. The integration of new laws can be achieved to a certain extent through concerted effort within communities, but it is vital in the first place that legislation is unequivocal in its purpose.
I wonder whether the Minister has considered how this legislation may be presented to communities in the context of existing cultural laws. Usha Sood recalled a case presided over by the noble and learned Baroness, Lady Butler-Sloss, where two girls, after having annulled their forced marriages, were able to apply for a religious nullity or faksh from the Sharia Council that bolstered their dignity in the eyes of their own community.
I believe that the message that needs to be conveyed to communities is that this Bill will not threaten arranged marriage and that, in the words of Justice Singer,
I beg to move, as an amendment to Amendment No. 1, Amendment No. 2.
Lord Sheikh: We need to define what we mean by forced, because there is a distinction between arranged and forced. If you look at the marriage ceremony itself, strictly speaking consent must be obtained from both the bride and the groom. The minister conducting the marriage ceremony asks the bride as well as the groom if they consent. It is difficult to establish whether force has been applied. We need to be clear about this because in certain religions consent is essential for the marriage to be valid.
Baroness Uddin: I wish to make a couple of points which may not necessarily enlighten the noble Baroness, Lady Verma, but I note that there is some dissension on this issue on the Opposition Benches that did not exist at Second Reading or during the past few years. It might have helped those of us who are not grumpy but cautious about this matter, and might have helped tighten the legislation, if some of the noble Baronesss points had been raised somewhat earlier. I understand what she is trying to say, but I should hope that we have done enough work over the years to be able to make a clear distinction between arranged and forced marriages. I hope that there is no concern about the fact that duress is definitely a factor in this. We have reached the point that we have in the mainstream legislative framework, and I am very comfortable with that. However, some of the points that she made should have been raised much earlier. Moreover, I believe that some of them have been addressed.
Lord Lester of Herne Hill: Even my mother would not claim that I was a family lawyer. Therefore, what I am about to say will be subject to correction. As I understand it, duress is a concept used in relation to annulment and there are difficulties about it which may or may not be dealt with as a matter of law reform in a wider context than this Bill. The concept of duress is not appropriate as the sole concept. In my original Bill, I defined force and forcing to include any physical or psychological coercion. I think that the Official Opposition were content with that definition at that time. There is now a better definition in the Bill, which I am not sure the lawyers who were consulted have noticed. Proposed new Section 63A(6) states that,
which encapsulates the original idea. It is quite different from voluntary arranged marriage, and that is its purpose.
Baroness Uddin: I hope that noble Lords will indulge me just a few more words. Force was defined by the victim just as she or he sought to define it. We were very clear and categorical about that from day one of the Working Group on Forced Marriage.
Baroness Ashton of Upholland: The noble Baroness, Lady Verma, began by saying that these are probing amendments, and it is absolutely right to test these issues. All of the issues being raised today have been the subject of a great deal of discussion with officials, the judiciary and other organisations. We have gone through in detail a series of questions and concerns, so the opportunity afforded us by the noble Baroness, Lady Verma, enables me to say a little about those discussions for the benefit of those who cannot be with us but who take a great interest in this matter, not least Members of another place who will want to see that we have dealt with them properly. I take the amendments in the spirit of being the key to understanding these issues.
I shall begin by explaining a little about the wishes and feelings part of the legislation. In my remarks earlier, I referred to the overarching nature of
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I used to be an Education Minister, and I was involved in the passage of two children Bills through your Lordships House. I can remember many discussions about wishes and feelings, particularly in the context of children. We have to make sure that we provide an opportunity to listen to them. The court is able to instruct the family to bring a young person before it, and it is right and proper if the third party bringing forward the action is able to do that. The court service CAFCASS can be available to those children. CAFCASS officers are experienced in talking to young people in an appropriate way, often not anywhere near a courtroom, but in a place where children feel comfortable. CAFCASS officers can then report back.
Equally, the courts can ask social services representatives to talk to adults to ascertain as far as possible their wishes and feelings. Indeed, one of the areas that we have discussed only today, which I know Mr Justice Munby considered in one of his judgments, is vulnerable adults. Noble Lords will know that I am responsible for the implementation of the Mental Capacity Act, and I can confirm that there is an issue about those who are adult but vulnerable because they lack capacity in some form or have learning difficulties. It is important that the courts are able to use professional support to ascertain wishes and feelings.
However, we have had to be clear in our own minds and in the legislation that this may not always be possible. Given that, the courts need to be able to act on the best information they have, at least on a temporary basis, while they find out as much as they can. We know in the context of childrens legislation and issues of contact and custody orders following divorce that there are real questions about children saying what they think they ought to say. Again, it is important that the courts are able to take the circumstances into account when weighing up how far expressed wishes and feelings really do reflect what the young person wants rather than reacting to what might be said as a result of all sorts of pressure. That is why the legislation is framed in this way. Based on previous experience and after undertaking wide consultation, I believe that we have the balance right. However, we must leave it in some part to the courts to take into account all the different issues, which again points to the need to provide the best possible advice, training and support to the judiciary. I hope that answers the questions put to me about the value placed on wishes and feelings.
Does the question of forced marriage help in terms of evidence of nullity? Yes, it does.
Lord Sheikh: What kind of training will be given to the judiciary, bearing in mind that there are religious issues here which will need to be determined?
Baroness Ashton of Upholland: We will be discussing that with members of the judiciary, such as the president of the Family Court. I am meeting the members of the judiciary, whom I met this morning, again, I hope, next week. The Judicial Studies Board will be involved. All of them will put together a packagebecause they are the expertswhich will be supported by the Government. The members of the judiciary whom I have spoken to have indicated the need to involve organisations with experience. They are keen that the organisations that have been working on this issue are involved in ensuring that it is well understood.
We are fortunate that some members of our judiciary now have a great deal of experience, hence my wishing to involve them in the legislation. They will also provide practical support to other members of the judiciary to do so. That will be established formally and properly when the Bill passes. I will keep noble Lords informed.
Baroness Uddin: The Ministers point about learning disabilities and so on reminded me of a question that I was asked by a family considering the marriage of their autistic child. I think that the case is before the court at the moment, so I shall not mention any particular details. As the Minister has embarked on discussions with various organisations and institutions, can she assure the Committee that she has also undertaken some discussions with the Disability Rights Commission? If not, will she do so? There is obviously a great deal of discussion yet to be had. As an advocate of disability rights, I believe that every disabled person has the right to marriage, love and everything which accompanies that. There are many difficulties when communication and learning disabilities are a problem. I would try to avoid that all being encompassed in some kind of cultural misunderstanding, put away and not addressed.
Baroness Ashton of Upholland: I have not had discussions with the Disability Rights Commission. I take the point, and I will talk to it in more detail. The Forced Marriage Unit is issuing guidance for social workers dealing with vulnerable adults on these issues. The noble Baroness is absolutely right: everyone is entitled to a happy, loving relationship and marriage.
Thinking of adults with a different kind of vulnerability, we have also been in discussion with those involved with gay and lesbian people who find themselves forced into marriage. We have put a particular group in touch with Stonewall, who I hope will work with it to provide support and advice. That is, again, an area where we must think about the range of people who must be supported and taken into account. We will talk formally to the Disability Rights Commission and report back to the noble Baroness and Members of the Committee as the Bill goes through Parliament. We are in touch, and it is an important issue.
On the definition, we have deliberately not defined it. I hear what the noble Baroness, Lady Verma, says about Mr Justice Singer, and I agree with what he says; it has the range and the spectrum. When we looked at thisand we had many discussions with the noble Lord, Lord Lesterwe talked to the judiciary and got the advice that we could. The elements within the concept of forced marriage are varied and different in different circumstances. To try to define it always creates a potential difficulty; by defining it, you narrow the definition.
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