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I could not agree more that this has nothing to do with the long established and successful tradition of arranged marriage. That communication which needs to go out—alluded to, if not explicitly said, by the noble Lord, Lord Sheikh, and the noble Baroness, Lady Verma—is critical. The judiciary is clear about that, as are we. We would not wish this in any way to be interpreted as being about any individual or community, or about a practice that has worked extremely well. This is about something entirely different: being forced into something you do not want to do. That is the fundamental difference: there is no consent. I agree that we need to do more, however.
The Department of Communities and Local Government, like every other government department, has been consulted on the Bill. It is our practice to ask all departments to endorse the legislation coming before them from the Government, and it did so wholeheartedly. It was part of the process of thinking through what we need to do and it fully supported that. As I have said, this is not about being anti any community. We need to stress over and over again that forced marriage applies in all communities; it is wrong in all communities; and we need to work with those communities to ensure that we deal with it properly.
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Finally, I will say a little about costs, as almost inevitably money plays an important part, and the volume of cases. The noble Baroness, Lady Verma, was right to ask what we thought the number of cases might be. We have an estimate of between five and 50 cases from the caseworkers within the Forced Marriage Unit. They say that they deal with about 300 cases every year; two-thirds of which would not include circumstances covered by the Bill; and about 100 that would. They considered that as few as five of these might necessitate an application to the courts. But it is guesswork at this point.
The senior members of the judiciary dealing with cases of forced marriage in the High Court have estimated that in the past 12 months about 30 cases of forced marriage have come to the High Court. One of the things that will happen when we have this civil remedy is that, because of the publicity and the fact that we have made the point that there is a civil remedy, the number of cases will increase. There are three elements to costs which I want to put on the record. First, there are legal aid questions. My honourable friend Vera Baird, who is responsible for legal aid, is at the moment considering how she might
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Thirdly, there will be an impact on all the organisations which currently work with victims of forced marriage. Any publicity, anything new or different, means that their work will grow. I think I have said to all of them that I am very mindful of that and that it will be for government to seek to try to respond to that properly. Those are the three areas.
Lord Sheikh: I raise a point that has been mentioned to me regarding legal aid. Will the Minister amplify the legal aid criteria? Will they be the normal criteria or something different?
Baroness Ashton of Upholland: They would be the normal criteria. I shall inform the noble Lord if there is anything further to add to that.
Lord Lester of Herne Hill: In deference to the question of the noble Baroness, Lady Verma, about ascertaining the wishes of the victim, it arises because of third party intervention in particular and the importance of this being victim-led and not inconsistent with the wishes of the victim, which is why it is important to do one’s best. The Minister dealt comprehensively with the position regarding children.
As to adults, it is my understanding that the High Court has noted that the court can direct the Official Solicitor, if he agrees to carry out investigations to ascertain the wishes and feelings of a vulnerable adult in this jurisdiction who has capacity to marry. Mr Justice Munby in a case called Re SA (Vulnerable adult with capacity: marriage) described a vulnerable adult as,
- “someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenital deformity”.
The judge went on to say that the court has the power to make whatever orders and to give whatever directions are needed to ascertain the true wishes of a vulnerable adult. I understand that steps can also be taken to ascertain the wishes and feelings of a vulnerable adult who is outside the jurisdiction. I say that for completeness.
Baroness Ashton of Upholland: The noble Lord is absolutely right. I was referring to three groups of people. The first were children and how CAFCASS plays a central role. The parents can also be directed to bring in the child both in this jurisdiction and beyond. Secondly, I said that social services can be involved with adults. Again, if appropriate, the adults
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My point was that there are other ways to ascertain such things when dealing with professionals. My noble friend made a very good point that the Disability Rights Commission also has a central role to play in this.
Baroness Uddin: I return to the question of costs. My noble friend mentioned the judiciary and the training requirement. I want to bring forward the concerns of women’s organisations, refuges and specialist provision that have continued to support women under a great deal of duress and struggle. We do not have any idea at this stage of the numbers of women and men who will be seeking support and assistance as a result of the Bill. It would be seeking a fool’s paradise to ask the Government to ring-fence some money, as that is not going to happen. How does my noble friend suggest that we ensure that the requirement for extra resources will be considered seriously?
Baroness Ashton of Upholland: It is a serious issue. The cost of creating a new remedy, if we have 50 applications, is about £180,000 a year. It is arguable that in the realm of government budgets that is doable. We will need to consider the resources of the Forced Marriage Unit. The issue will not be raised in my department. Across the Government, in talking about the legislation, I have made it clear that there will be an impact that we need to be aware of. The issue will be addressed properly as we consider this and talk to organisations and as they get access to the departments that will be able to support them. At this point, whether that means that departments are able to give additional resources is not for me to say. The assurance that I am giving is the recognition that this is something that we will have to deal with. I am not in a position to say how at this stage, not least because, as my noble friend knows well, the difficulty is that we do not know precisely what impact there will be.
The estimate that we have done of the number of cases is based on the best information that we have, and we can cost that; £4,100 is an average cost of a domestic violence case. Therefore, we have used that as our ballpark figure. We have talked with those who have dealt with these cases in the courts. That is an estimate, and we will have to examine it. The point about the Government doing the legislation is that we recognise that we will have to deal with it, not least in terms of the training and support that is needed.
Lord Sheikh: The Minister referred to children. A case was reported in the papers last week in which an 11 year-old girl was rescued from a forced marriage situation in Bangladesh. Obviously, in some overseas countries a boy or girl does not have to be 16 to be married. Can the Minister make any comment regarding situations such as this one where children are taken abroad, perhaps under a pretext, and a forced marriage arises?
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Baroness Ashton of Upholland: Yes, I can. I was in India last week, and forced marriage was one of the issues that I discussed with the Government and with the National Commission for Women. To give the noble Lord an indication, over the next few weeks the High Commission in India will be visiting 700 villages in the Punjab with posters, copies of which I can show the noble Lord, to raise the issue and to invite people, where UK nationals are involved, to come forward to get support from the High Commission. In India last year, some 10 UK nationals were returned as a result of some element of forced marriage. As the noble Lord will know, in Bangladesh and Pakistan we have people who bring back UK nationals involved. I mentioned those three countries because I have information on them, not to try to identify them as being the only countries where we have issues.
The noble Lord, Lord Lester, referred to the fact that I am the justice Minister who sits on the Justice and Home Affairs Council in the European Union. I hope to raise this issue with my colleagues across the European Union and with the European Commission in Brussels. The importance of the work that we do internationally should not be underestimated for a moment. The Forced Marriage Unit deals with this in an exemplary fashion, and it gets a lot of co-operation from Governments. There are issues in terms of the judicial systems in other Governments, and we are talking to the judiciary about how to encourage and promote better relationships through government discussions. When I was in India, the Indian Government were keen to raise particular issues that they were worried about. A good dialogue has been established, and we will continue that. Good work is already being done. Obviously I cannot comment on individual cases; the noble Lord would not expect me to do so. We need to enhance the good work that is being done and ensure that we are working government to government and judiciary to judiciary. We also want to ensure that we offer practical support on the ground for those whom we wish to bring home.
Lord Sheikh: I was alluding more to the minors who have been taken abroad. In this country, such an event is a criminal offence.
Baroness Ashton of Upholland: Indeed. As I think I have indicated, 30 per cent of the cases which the Forced Marriage Unit deals with involve young people, largely girls, who are under 16. There is an issue about minors, but we do have some success in returning them to this country.
Lord Lester of Herne Hill: May I supplement that answer? First, there are the child abduction arrangements, which I believe the Republic of India is now fully signed up to. Secondly, proposed new Section 63B on the contents of orders is very broad. It empowers the court to make an order with,
- “such prohibitions, restrictions or requirements; and such other terms; as the court considers appropriate for the purposes of the order”.
“The terms of such orders may, in particular, relate to—conduct outside England and Wales as well as (or instead of) conduct within England and Wales”.
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It therefore has a reach beyond this country, but of course it will not work completely unless there is matching legislation, which can be enforced—this is also key—in other countries such as India, Pakistan and Bangladesh. There is real interest in all three countries. Two of those countries have recently passed some amending legislation, which is not the same as this legislation, but I am encouraged by the moves that are being made there.
Baroness Ashton of Upholland: I should clarify that India has not yet signed up to the child abduction arrangements, but has indicated to me that it plans to do so very shortly. I am the Minister responsible for our duties under the Hague convention.
Baroness Verma: I thank noble Lords for their responses. I am grateful to the Minister for her response. The noble Lord’s response gave rise to some questions that I may wish to return to at a later date. I beg leave to withdraw the amendment.
Amendment No. 2, as an amendment to Amendment No. 1, by leave, withdrawn.
Baroness Verma moved, as an amendment to Amendment No. 1, Amendment No. 3:
The noble Baroness said: Amendment No. 3 would leave out proposed new Section 63E, which allows the court to accept an undertaking from a respondent that he will in effect abide by the terms of an order without actually being subject to one. Although I appreciate that this may function as an effective light-touch measure that will enable the respondent to avoid the shame of being subject to a court order, while giving the petitioner some reassurance, I have a few concerns with the way in which the order is set up. Proposed new Section 63E(2) states that no power of arrest may be attached to an undertaking, but it goes on to say that an undertaking given to the court is enforceable as if the court had made an equivalent order. There seems to be some contradiction inherent in the making of the orders.
I appreciate that undertakings cannot replace orders that would otherwise have had a power of arrest attached to them, but I notice that if an order without a power of arrest attached is breached, it is still subject to the existing law of contempt of court under proposed new Section 63O, which, unless I am mistaken, comes with a power of arrest. So either there is a power of arrest attached to an undertaking, in which case there needs to be some amendment to clarify this in the Bill, or I am mistaken and there is no power of arrest. If so, I confess that I do not see how effective such an undertaking would be in practice.
On the powers of arrest attached to the orders, proposed new Section 63H(2) states that the court need not attach a power of arrest to an order if,
- “it considers that, in all the circumstances of the case, there will be adequate protection without such a power”.
Can the Minister say what she thinks will constitute “adequate protection”?
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On varying orders to include a power of arrest retrospectively, what will occasion such a reaction from the courts, apart from an application to a judge? Will respondents be monitored once they are subject to an order? Perhaps a description of how orders are followed under Part 4 of the Family Law Act 1996 would give us an idea of how this may function.
In the event that a respondent is arrested, the power to remand, as indicated in new Section 63K, and consequentially in Schedule 5 of the Family Law Act 1996, seems to be open-ended. I refer to paragraph (3) of that schedule, which states that the court may enlarge a person’s recognisance to a later time. Can the Minister give an indication of the maximum remand time that she expects a respondent to be subject to? I hope noble Lords will forgive me for these lengthy questions, but it is important to tease out every detail at this stage, so that this Bill goes to another place with a clean health check.
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The real issue here is the effect that these various orders, undertakings and powers of arrest will have on the communities that the Bill will target. I refer to paragraph 5 of the regulatory impact assessment, which estimates that the legislation is likely to impact on,
My experience in working with those groups is extensive. I have, sadly, witnessed the pressure put on young girls in families where family honour and respect are constantly cited as reasons for these matches. The high level of emotional stress is unremitting and the complete feeling of isolation inflicted is quite impossible to imagine. These incidents are on the rise, particularly with the social and political climate increasingly making it more difficult for people in some communities to feel confident and sure about the wider world. Those who seek help in these circumstances must be confident that no system is then going to fail them; as the consequences of failure could, sadly, in some cases prove fatal. My concern is that even with light-touch legislation, the threat of orders and arrest could drive the practice of forced marriage underground and overseas. I echo the concerns of my noble friend Lord Taylor of Holbeach in his excellent speech at Second Reading, when he raised the question of overseas jurisdiction.
I quote the response of the Minister, who acknowledged that in the consultation:
“The overwhelming majority felt that families might take advantage of lack of overseas jurisdiction, taking their children overseas to circumvent laws in the UK”.—[Official Report, 26/1/07; col. 1363.]
I do not oppose the Government’s amendments to the Bill on those grounds, as I believe that the orders and undertakings could be put to good use. Rather, I seek reassurance from the Minister that this legislation will not result in either having too little success for the people it seeks to protect by way of inadequate powers of enforcement, or have the unintended consequence of alienating the very communities that it seeks to assist.
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For example, what evidence does the Minister have that closed communities will accept this legislation without taking action deliberately to avoid it? What monitoring will there be of orders and undertakings? Will the social services be involved, and will there be special liaison officers appointed in local police forces to deal with victims of forced marriage, in the same way as there are for victims of rape? What extra training could that involve? At this stage, I am purely probing the Government’s thinking on this and the plans that they have in place. I did not note in the RIA that any supporting structure was to be put in place or that any costing had been carried out. If there are such plans, what is the estimated cost, and where will the money come from? I know that noble Lords have raised such questions under my previous amendment, but there is further probing to be done on this. I look forward to the Minister’s response. It may be that she will need to write to me on some of the points, and I would be happy for her to do so. I beg to move, as an amendment to Amendment No. 1, Amendment No. 3.
Baroness Uddin: I have a couple of comments on the concerns raised by the noble Baroness, Lady Verma. Given that it is a probing amendment, I can understand some of her comments. My experience of raising certain points on a number of occasions makes me empathise with some of her points.
There are always difficulties with legislation in terms of how strong it is and how much impact it will have. Any legislation that comes out of all our work and effort must ensure that criminals are dealt with in the harshest way possible. If we seek to deal with these issues within the framework of family law covering domestic violence and so forth, particularly with regard to children, there should be no ambiguity about the pursuit of justice and ensuring protection for young people and children. In any case there is a danger that this legislation could be perceived as uneven-handed and specifically targeted at certain communities. Although I believe that we have done enough work along the way to alleviate some of those fears, we have not continued to protect vulnerable young people in the way in which they should be protected. If we had dealt with this within the statutory framework of domestic violence law and child protection, we would have made a better job of preventing some of the heartache created by this problem.
I take the point made by the noble Baroness, Lady Verma, that the weakness in our discussions is that we do not necessarily penetrate to the heart of the communities where deep suspicions remain. The way to tackle that is to make a serious commitment to empowering women and delivering the message again and again that we want to deal with criminals, not criminalise communities. We will tackle those who seek to abuse the rights of individuals. We must be clear about that from the outset so that there are fewer opportunities for misunderstanding.
Lord Lester of Herne Hill: Consistency is not necessarily always desirable, but sometimes it is. I do not think that the Official Opposition can make the point that the Bill would drive the practice overseas or
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On the matter of undertakings, again the whole point is to provide a sensitive, private and non-adversarial way of coping with the problem. Again I should have thought that that would be consistent with the Opposition’s approach.
Baroness Ashton of Upholland: I am grateful to noble Lords. We have had an interesting debate. The noble Lord, Lord Lester, is right to say that undertakings are incredibly useful because they do not ask people to admit to the allegations being made against them, but enable them to say, “I will not do that”. I see that my noble friend Lady Uddin agrees. A point that has driven our discussions right the way through from the original consultation on the criminal offence, which was rejected, is that of recognising the importance of family in this. The family courts can hear things in private and handle the issues very sensitively. They can ask simply for an undertaking without requiring someone to admit to having done anything. It is an important tool that will help a family to stay together.
Our ambition here is that young women and some young men become empowered. They should feel that they can make choices, but that they can also keep their families. If we can go some way towards achieving that in this legislation, we will have achieved a real success. Anything we can do to enable the sensitivity and flexibility of the courts to come into play is important. That is what an undertaking in this context would do.
In answer to the points put by the noble Baroness, Lady Verma, although an undertaking can achieve a great deal, if someone breaches it, they will have breached something that has been put to them by the court. At that point an undertaking can be enforced as if it was an order. If I give an undertaking to the court that I will not coerce another individual to do certain things without admitting that I have ever done so, the court will say that that is fine. If I go on to do so, I am in breach and the court may act.
The noble Baroness asked me about remand. The remand period is eight days, unless the parties consent to it being longer or because some medical examination needs to take place.
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