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The Forced Marriage (Civil Protection) Act 2007: A Snapshot

Bik Wong summarises the key measures due to be introduced by the Forced Marriage (Civil Protection) Act 2007

Bik Wong, Locum Family Solicitor, CKFT Solicitors

On the 26 July 2007 the Forced Marriage (Civil Protection) Act 2007 (“the 2007 Act”) received the Royal Assent.  The 2007 Act aims to protect the victims of forced marriages by empowering the courts to make Forced Marriage protection orders.  The aim of such injunctive orders will be to protect the victim or potential victim of a forced marriage and to assist in removing them from their situation of duress. 

The passage of the 2007 Act through Parliament was very swift, having been introduced as a private member’s Bill in November 2006 by Lord Lester of Herne Hill..  The objective of the 2007 Act is  to:

“make provision for protecting individuals against being forced to enter into marriage without their free and full consent and for protecting individuals who have been forced to enter into a marriage without such consent: and for connected purposes”

Therefore, the purpose of the 2007 Act is to address through the family courts a serious social problem in a sensitive manner.  The Act had the support of the three main political parties and a number of interested bodies (eg Southall Black Sisters) whose common mission statements are the protection of young people, vulnerable women, and indeed on occasions, young men against domestic violence psychological harassment and   coercion which where forced marriage is concerned has far reaching and often intolerable consequences for the victim.

The factual background and present legal position on forced marriage
Article 16 of the Universal Declaration of Human Rights states that:

“marriage shall be entered into only with free and full consent of the intending spouses”. 

If such consent is not given by both of the parties to a marriage, then it is deemed to be a forced marriage.  However strong the religious or cultural reasons may be for such marriages, the clear view is (certainly in mature democracies) that this is a violation of a person’s human rights.  

It is important to distinguish forced marriages from arranged marriages: common reasons for arranged marriages are:

However an arranged marriage becomes a forced marriage if one or both of the parties do not consent to it and the non consenting party becomes the victim of duress or coercion to enter into the unwanted marriage. 

In Britain, the Forced Marriage Unit deals with approximately 400 cases a year, although it is estimated that there are far more unreported cases which never reach the attention of the Unit.   Most cases involve girls and young women aged between thirteen and thirty, although there is evidence to suggest that as many as 15% of the victims are male.  The ethnicity of the parties of forced marriages varies: the most newsworthy cases in the jurisdiction of England and Wales usually concern couples from India and Pakistan, but there are cases involving parties from the Middle East, Europe and Africa.  Some forced marriages take place in the United Kingdom with no overseas element, whilst others involve one of the parties coming from overseas to Britain to marry against their will or a British citizen being forcibly sent abroad to marry where the party does not consent to the marriage.

The current legal position is that the minimum age at which a person is able to give consent to marriage is 16 years: a person between the ages of 16 and 18 may not marry without the consent from all of those with Parental Responsibility for them, unless the young person is a widow or widower.

S.12(c) of the Matrimonial Cases Act 1973 states that a marriage is voidable if either party to it did not validly consent to it.  Duress, mistake, unsoundness of mind are common examples of a party's consent being vitiated or non existent.  Therefore a voidable marriage exists in such circumstances, but is legally valid until a decree of nullity is obtained.  Nullity proceedings must be commenced within three years of the date of the marriage or the court must extend the time limit.

There is currently no specific criminal offence of forcing someone to marry in England and Wales although those who exert duress or coercive conduct on a victim with a view to securing a forced marriage, could be prosecuted for related offences such as: threatening behaviour; assault; abduction; false imprisonment; child cruelty; and in very extreme cases, murder.

The content of the 2007 Act
The 2007 Act interpolates a new part 4A after the existing part 4 of the Family Law Act 1996 (“the 1996 Act”).  Judges sitting in the family courts (that is the County Court and Family Division of the High Court), will have the power to make Forced Marriage Protection Orders, ie injunctions.  Such orders may be made to protect:

Predictably the court must consider all of the circumstances of the case in deciding whether and in what manner to exercise its powers.  This includes of course the need to secure the health, safety and well-being of the person to be protected. (Section 63A (2)). 

The court must also have regard to the protected person’s wishes and feelings (insofar as they are reasonably ascertainable) as the court considers appropriate in the light of the person’s age and understanding. (S.63A(3))

Who may be an Applicant?
The Applicant to the court for an order need not be the actual person seeking the protection that the Forced Marriage Protection 0rder will give.  An Applicant may be:

In respect of the last provision the court will consider the third party's connection with the person to be protected, the degree of their knowledge concerning the victim and circumstances, and again, the wishes and feelings of the person to be protected insofar as they are reasonably ascertainable.

Who may be a Respondent?
For the purposes of the 2007 Act the Respondent to the application need not necessarily be the other party to the forced marriage: the court may make a Forced Marriage Protection Order against anyone exercising or about to exercise duress or coercion of some kind on an intended victim.  Therefore the Court has the power to injunct conduct that is anticipated and apprehended as well as making orders against any further repetition of conduct which has already occurred.

“force” is defined in s.63A (6) as meaning to:

“coerce by threats or other psychological means (and related expressions are to be read accordingly)”

The Contents of Forced Marriage Protection Orders
The judiciary will have discretion to make orders which are considerably wide in their ambit.  The contents of a Forced Marriage Protection Order will, of course, vary from case to case, but may include:

The potential international scope of the orders raises important issues of international enforcement.  Obviously where the victim is also concurrently the victim of an abduction and hence the subject of child abduction proceedings, one assumes that all countries who are signatories to the Hague Convention will co-operate in the practical enforcement of a Forced Marriage Protection Order.  However, it will be supremely important for practitioners involved in this difficult, highly sensitive area of law to keep a careful watching brief on international developments in enforcement once orders begin to be made under the 2007 Act.  It is self evident that an order that cannot be enforced is a toothless order.

Orders made of the Court’s own motion
The court may make an order without an application being made to it, where there are other family proceedings before it.  If the court considers that a Forced Marriage Protection Order is necessary to protect a person, irrespective of whether the person requiring protection is a party to the existing proceedings, provided that another person who would be a respondent to a Forced Marriage Protection Order, is a party to the proceedings, then an order can be made.  Refer to (S.63C (1) (a) and (b) and S 63C (6).  Again it will be most interesting to see how the judiciary exercise this extended power.

Ex Parte Orders
Predictably s.63D provides the court with the power to make ex parte orders, but this is (in line with existing provisions on non-molestation orders) moderated by the requirement that the respondent to an ex parte application must be given an opportunity to make their representations as soon as is “just and convenient” and at a hearing where notice has been given to all of the parties in accordance with the rules of the court.

The position on Undertakings;
The Act also adopts a position on the giving of undertakings which is similar to the existing position on undertakings where there is an application for a non molestation injunction before the court.  So where an application is made for a Forced Marriage Protection Order, the court may  accept an undertaking but no power of arrest can attach to the undertaking.  However, one assumes that it will be possible to make applications to commit any respondent to prison for breach of an undertaking to the court.   How ready the Family Courts will be to accept undertakings where, in the nature of such cases, very serious allegations will be made is again a subject for careful scrutiny in future.

The Practical implementation of the Act
It is envisaged that the Act will be implemented in Autumn 2008.  The Ministry of Justice published their Consultation paper on the implementation of the act on 31 January 2008.  (Consultation paper {CP 02/08).  The consultation period concluded on 24 April 2008.  Annex A of the paper comprises a draft statutory instrument containing rules which would amend and augment the existing Family Proceedings Rules 1991.  The principal points for practitioners are that:

In conclusion therefore, the 2007 Act now provides specific protections for victims of forced marriages.  Practitioners in this area will be operating in a new and highly sensitive jurisdiction where all interested parties will hope for positive and effective results.

Bik Wong 21 June 2008