How will the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act operate in practice? Some pointers from a family law specialist

Forced marriage is a particular form of domestic abuse which thrives in a context of other domestic abuse. It is related to honour-based violence in the UK and abroad. In Scotland we can describe the phenomenon as low incidence: high impact. It is not often reported, but when it does happen the consequences are potentially disastrous or even fatal for those concerned.

No one would deny that forced marriage does exist in Scotland, and wherever it does exist it should be the concern of the lawyers to attack it and to give support to its victims.

The Forced Marriage Unit (fmu@fco.gov.uk; 0207 008 0151) is a joint initiative between the Home Office and the Foreign and Commonwealth Office. The purpose of the FMU includes giving advice and support related to possible forced marriages across the UK. In 2010 it gave advice or support in 1,735 cases, of which 86% were female. Its experience to date, of course, has included some Scottish cases but until now there has been no legislative framework for their support.

The phenomenon of forced marriage and the related honour-based violence is generally perceived as being a greater problem in England, at least in numerical terms, but just because the problem in Scotland is not much complained of, or reported, it doesn’t mean that it shouldn’t be addressed.

Forced marriage in England & Wales

Forced marriage is a phenomenon mainly of those English cities which have large and coherent South Asian communities, and though forced marriage is not at all restricted to those communities, it is observed much more where a community culture provides a context in which forced marriage may be accepted as permissible, even if not desirable. Forced Marriage: Prevalence and Service Response (DCSF-RB 128), a study published by the Department for Children, Schools and Families (now the DoE), concluded that the overwhelming majority of victims of forced marriage are teenage girls from Pakistan and Bangladesh.

In Scotland the community culture issue does not arise to any great extent. There are families and family groups in which such culture may exist, and we should not underestimate the power of these small communities over their younger members. At least we can hope that it will be easier in Scotland to identify as culprits the individuals in a potential forced marriage, when a court is drafting its order and deciding on whom to serve it.

The Forced Marriage (Civil Protection) Act 2007, part 1 of which applies to England & Wales and part 2 to Northern Ireland, came into force in November 2008. Along with its regulations, it allows local authorities and the police to apply for a forced marriage protection order without any special leave of the court. Other third parties such as family members may apply for an order, but must first ask for special leave. The 2007 Act is very similar in many ways to our new statute, and we will be wise to learn from the experience of its implementation when trying to apply the 2011 Act in practice.

The initial Home Office prediction that there would be 50 applications per year has been substantially exceeded. Since the Act came into force, 339 orders have been granted, and the numbers are increasing – there were 116 in 2010 alone.

The Scottish legislation

The Scottish Government did not need much persuasion in 2009 to start the course of legislation here. The legislative process was remarkably smooth. The principles of the legislation were widely accepted and, except in small details, this was not a party-biased process

There was a discussion about whether or not forced marriage itself should be criminalised, as opposed to the breach of the forced marriage protection order being criminalised. There was also an argument that criminal law should be kept out of the picture altogether.

Then there was some dispute about who should and should not be allowed to apply to the court for an order, or for the revocation of an order.

Eventually the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 was passed on 26 April, and came into force on 28 November 2011.

This article addresses the part which attacks the acute problem of forced marriage. It will be equally important to address, by public and professional education, the chronic underlying social context which allows forced marriage and its related diseases to exist even in Scotland.

What is a forced marriage?

Forced marriage, according to the Act in s 1(4) and (6), means that a person (A) is forced into a marriage if another person (B) forces A to enter into a marriage, whether with B or with another party, without A’s free and full consent. Force includes coercion by physical, verbal or psychological means, threatening conduct, harassment or other means, and/or by knowingly taking advantage of a person’s incapacity to consent to marriage or to understand the nature of the marriage. The definition is accordingly very broad indeed, and there are several routes to an order.

If it seems likely that there will be a forced marriage then an application can be made to the sheriff court for a forced marriage protection order (FMPO) – that is the only direct remedy supplied by the Act.

Who can apply for a FMPO?

First of all the potential victim herself can apply. I think that this will be a little used remedy. (In England it is difficult to establish just who has applied for those orders which have been granted. In 2010, 37 out of the 116 applications were categorised as “Person to be protected”, but these may have been through a solicitor on behalf of a third party or by the victim herself.) If the potential victim has the strength, resolve and personal resources to defy her parents’ wishes by going herself to a lawyer to give effect to her defiance, then she will probably have the strength and will to refuse the marriage altogether. If you want to force someone into a marriage you can’t afford to let them develop or retain that sort of smeddum. You really have to remove it – wear it out over time – or shock, frighten or bully it out of her.

Unfortunately most people who would wish to perpetrate a forced marriage already know this and have always known it. Fortunately we have organisations such as Shakti in Edinburgh and Hemat Gryfe in Glasgow which can provide support, advice and other resources. If a potential victim is able to contact one of these groups then her chances will be greatly strengthened. A victim alone is the most vulnerable victim.

A relevant third party in terms of s 3(1)(b) can apply for an order. A relevant third party, as matters stand, is the local authority, the Lord Advocate or “a person specified by order made by the Scottish Ministers”. As far as I am aware we don’t have any orders yet, and so the relevant third parties are the local authority, which will include teachers and social workers (the ones at the very sharpest end of the whole thing), or the Lord Advocate (in other words, for practical purposes, the procurator fiscal).

Taking the second of those first, one can well imagine a case in which another matter is being prosecuted, such as breach of the peace or assault, and it comes to the attention of the Crown that there may be a forced marriage lurking behind the statements which have been given. The fiscal is in a good position to apply to the court for an order on the basis of that information.

It has to be said, though, that once the case has got that far it may be too late to do much about it. That is why the most significant applicants may be those covered by section 3(7)(a) – the local authority. It will be the teacher or the social worker who notices that a particular child has been absent from school, or has been showing a sudden slump in academic performance, or any one or a number of indicators identified in the practice guidelines and prompting them to make further enquiry. (So far in England, according to the FMU, no applications at all have been made by teachers, though it may be that teachers have reported cases to other authorities before action.)

There must be some doubt about whether or not the police should be automatically included (they are in England), but as a matter of practicality the police have a well trodden path to the office of the procurator fiscal, so there should be little delay if the circumstances merit quick action.

In England in 2010, 26 applications were made by relevant third party local authorities, 22 by the police and only 12 by family members. The Crown cannot make an application in the English system – another difference between the Scottish and English legislation.

Under s 3(2), any other person at all may apply for a forced marriage protection order on behalf of a third party if they have the leave of the court. The court in these circumstances will decide that question – s 3(3) – on criteria including the applicant’s connection with the protected person, the applicant’s knowledge of the circumstances, and the wishes and feelings of the protected person “so far as they are reasonably ascertainable”. We can easily see that it might be a well intentioned neighbour or even another relative who has the inside track on what is going on and seeks the leave of the court to apply for an order. Again for practical purposes it may be quicker for that person to report the matter to the police or directly to the procurator fiscal, but it is surely quite appropriate that a third party ought at least to be able to apply for an order if the established authorities don’t seem to be doing anything. It is always important to have a safety valve.

It is also open to the court to make an order without anybody else having made an application at all, under s 4(1)(a), if there are other civil proceedings before the court and the court considers that the order should be made to protect the person whether or not that person is a party to those proceedings. The court can also take steps where there are criminal proceedings before the sheriff or High Court, and the sheriff or judge considers that an order should be made. As a fallback position the sheriff or judge can refer the matter to the Lord Advocate, who may apply for the order or “take such other steps that the Lord Advocate considers appropriate” under s 4(3)(b)

What can a FMPO actually do?

What about the order itself? The order is potentially very broad indeed. In terms of s 2(1) it may contain such prohibitions, restrictions or requirements and other terms the court thinks fit. On the face of it this seems scarcely limited at all, though an order which is entirely outwith the obvious policy and purposes of the Act might be challenged. Under s 2(2) the order may relate to conduct in Scotland or outside Scotland, it may relate to persons who force or attempt to force or may force or attempt to force a protected person to enter into a marriage, and it may relate to persons who are or may become involved in other respects.

Under s 2(3) the forced marriage protection order may among other things require a person (a) to take the protected person to a place of safety designed in the order; (b) to bring the protected person to a court at such a time as the court may specify; (c) to refrain from violent, threatening or intimidating conduct, whether against the protected person or any other person.

The order may require a person:

  • to appear in court or to disclose the whereabouts of such a person;
  • to refrain from taking the protected person from or to such place as the court may specify;
  • to facilitate or otherwise enable the protected person or other person to go to such place, whether in Scotland or another part of the UK, as the court may specify, and submit to the court such documents including passports, birth certificates or others as the court may specify;
  • or to provide the court with such information as it may specify.

Note that failure to obey any of these orders is a criminal offence, and the court is almost unrestricted in the information it can demand. This is probably quite a good thing, since the number of different circumstances in which a forced marriage protection order may be necessary can be very wide and varied. The Act will put a very great burden on the sheriff or judge to use these wide powers wisely and promptly.

In England a breach of an order leads only to a finding of contempt of court, but the Government has strongly hinted that a breach will become criminal there in the course of the next 12 months or so – or possibly even that forced marriage itself will be criminalised. That is a purely policy matter, but it does run the risk that forced marriages will proceed because family members may not want to report one of their own for committing a crime. The Scottish system which puts the addressee at risk of a criminal record if he breaches an order is different – the addressee has the choice not to commit the breach.

Before leaving s 2, I should say that the persons who are or may become involved in other respects include (s 2(4)) those aiding, counselling, procuring, encouraging or assisting another person to force or attempt to force a person to enter into a marriage. This makes it even wider and more powerful. There may be some criticism that the wide and strong powers given to the court represent a sledgehammer to crack a nut, but although in Scotland it’s a tiny nut, it’s also a very hard one and I suggest that this particular sledgehammer is an entirely appropriate implement with which to try to crack it.

In urgent cases – and it’s scarcely possible to image a forced marriage case which isn’t urgent in some degree, the court can make any interim orders which it may see fit.

Amending and terminating orders

The orders themselves, in terms of s 6 of the Act, last for the length of time (if any) specified in the order or until the order is recalled.

The order can be recalled in its entirety or varied on the application of any one of the class of persons who could have applied for the order in the first place, including the third party who has to seek the leave of the court before making that application. This is something which a protected person will have to bear in mind. It is conceivable that a young person may object to being forced into a marriage with a particular individual and obtain the protection of an FMPO, and then, possibly some years later, change her mind and wish to marry him. If this happens, she will have to apply to the court for a recall of the order in order to avoid the admittedly small risk of criminalising herself and possibly her family and her prospective groom by the very act of entering into a consensual marriage. In those circumstances it would be surely be possible to argue that the FMPO had not been breached “without reasonable excuse".

We have seen that a FMPO can be framed in very broad terms. I think that a sheriff will be likely to frame it as broadly as it needs to be, but no more – an unthinking scattergun approach will not be good for anyone, and may well reduce respect for the FMPO system. Nevertheless if an order is made in restricted terms and it appears to the court to have turned out to be too narrow, the order can be extended in its length or scope in terms of s 8 on as many occasions as are necessary.

Criminal liability

The factor on which the press has tended to focus is the criminal aspect – understandably enough. We find the criminal penalty in s 9 of the Act: a person who, without reasonable excuse knowingly breaches an order is guilty of a criminal offence punishable on summary conviction with imprisonment for up to 12 months, or a fine, or both; and on indictment with imprisonment for up to two years, or a fine, or both.

What the press has tended to miss is that in the worst forced marriage cases, terrible things are done which in themselves are crimes – such as assault, threatened assault and worse. These are crimes at common law in the same way as before and I anticipate that most indictments in the more serious cases will have several charges – some under the statute and some at common law too.

Civil partnerships

There has been some confusion over the provision in s 10 on civil partnerships. “Surely”, one might think, “there is no cultural likelihood of any family wishing to protect their honour by forcing a young person into a civil partnership?” Well, quite right too. But there are, we are told, gangs who use forced marriage for commercial gain, depending on families forcing their sons or daughters into marriage for a fee so that the end-user – the client – can get a UK passport. If we have a robust and effective law against forced marriage, these gangs will simply move their operation to forced civil partnership, with no intention on anyone’s part that the relationship should be a long-lasting one.

There is a crossover here with sham marriages, and that’s a different matter, but the principle holds good. Section 10 doesn’t actually make forced civil partnership equivalent to forced marriage, but it allows Scottish ministers to extend the terms of the rest of the Act to that sphere by order – no further primary legislation would be required.

Role for education

Section 11 of the Act provides for the issuing of guidance to whomsoever it pleases about the operation of the Act. That guidance is in place and will be vital to the success of the policy of the Act. Guidance for solicitors should be available early in 2012. We await action by the Government on the pivotal role of public and professional education, without which this legislation will be just so much pious spilling of ink.

This law – any law – is only a part of a solution to anything. The law is now in place, and it’s a good one. The lawyers will have to be ready to their part in order to make it work.

The Author
John M Fotheringham WS is a consultant with Lindsays LLP t: 0131 229 1212
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