The Forced Marriage (Civil Protection) Act 2007

The Forced Marriage (civil protection) Act 2007 ('the FMA') was introduced against a background of rising public and government awareness of human rights abuses, offences against a person and the length to which some sectors of our communities will go to enforce their will and the identity of the group onto the individual.

Background

The significant drivers behind the change included the high-profile, honour-based murders of Heshu Yones (2003), Surjit Kaur Athwal (2004), Samaira Nazir (2005), Caneze Riaz, Uzma Rehan, Alisha Begum (2006) and Benaz Mahmood (2006), and the campaigning work on the part of the third sector including Karma Nirvana, Southall Black Sisters and the Women's Aid in the wake of these murders.

The considerable body of research and publications together with the many government enquiries and consultations (see appendices) have further highlighted the issue. For example:

'¢ 'Forced Marriage, A Wrong not a Right: Home Office' (December 2005)

'¢ The House of Commons Home Affairs Committee: 'Domestic Violence, Forced Marriage and Honour Based Violence' (6th report of 2007 '“ 2008) (20 May 2008)

'¢ Ministry of Justice Consultation: 'Forced Marriage, the role of the relevant third party' (December 2007)

'¢ 'Forced Marriage, Court Rules' (December 2007)

'¢ Immigration and Borders Unit: 'Marriage to Partners from Overseas' (2007/2008)

It was a long and torturous route from the proposal of the Bill by Lord Lester of Herne Hill in 1999, to its becoming law on 24 November 2008, and the journey involved much careful and lengthy consultation by the government in its attempt to get the provisions right. In 2004 we saw the opening of the Home Office/Foreign and Commonwealth Office Forced Marriage Unit which in itself has been a significant driver for change. As awareness is raised of these issues, more and more cases come forward.

At the present time it is impossible to say with any certainty how many cases of forced marriage and honour-based violence - which often accompanies it, - occur in the UK every year, but the Ministry of Justice initially expected that there would be a maximum of 50 applications brought under the new Act per year. What the available statistics show is that increased media coverage of the issues, the Act and the support services has led to increased numbers. The Forced Marriage Unit now deals with thousands of enquiries a year, and will take action in excess of 400 cases.

In November 2007 Teesside Police launched their helpline specifically aimed at victims of forced marriage and honour-based violence and in just over a year they have dealt with 300 calls and have 63 active cases. The BME community in Teesside accounts for less than 6 per cent of the population, which means that these findings are significant; it begins to give some indication of the need for the FMA. However it remains to be seen how often the FMA will be used.

At the time of writing, in the three months since the FMA became law, official statistics report that approximately 32 applications have been made to one of the 15 specialist Forced Marriage Courts throughout the country.

The FMA itself is governed by the Family Proceedings (amendment) Rules 2008, which insert the new Part 4 (A) into the Family Law Act 1996 consisting of 19 new sections (ss 63(a) to 63(s)).

Rules 3.24 to 3.36 of the Family Proceedings Rules 1991 as amended deal with all relevant issues relating to the Act including leave, service, transfer, who can be parties, applications for joining further parties, orders for disclosure against non-parties, where the court can make orders of its own notion and governance of enforcement of orders, bail and related contempt issues.

The key provisions

Section 63A of the FMA, subsections (2) and (3) set out issues the court must consider including the health, safety and wellbeing of the person to be protected, and the provision stresses that regard must be given to their wishes and feelings as far as it is possible to ascertain them. It also takes account of the fact that it may not be possible to ascertain a person's wishes and feelings in any particular case, for example if that person is imprisoned within the family home and is unable to summon their own help or has already been taken abroad and is out of the directory to the court's enquiries.

Subsection 5 sets out that the conduct in issue, or violence, need not be directed at the person to be protected and may be in the form of threat to a third party. In many instances the conduct or violence may be towards the boyfriend/girlfriend of the victim (V). It may involve a situation where a perpetrator may threaten to commit suicide. Similarly subsection 6 recognises that the force may not necessarily constitute physical violence but can also include emotional/mental/verbal pressure exerted over V.

Forced Marriage Protection Orders

Section 63A of the FMA provides that on application, or of its own motion (where there are existing family proceedings) the court can make an order preventing V from being forced into marriage, preventing V from being taken out of the country, and assisting someone who has already been forced into a marriage by way of protecting them from further family threats and pressure (ss (1) (a) and (b)).

Section 63B of the FMA covers the contents of the orders and this is drafted widely, deliberately so, to allow the court to make bespoke orders to fit the particular situation. Subsection 1 provides that the court may make any orders containing any measures that are considered appropriate in order to protect against conduct but may lead to a person being forced into marriage; or to protect a person who has been forced into a marriage. The orders may prohibit or restrict certain activity or they may require a person to do something, such as produce their passport. The court is given wide discretion to include 'such other terms' as it deems appropriate.

Under subsection 2, the court's reach is extended way beyond the boundaries of England and Wales and can relate to behaviour outside of the jurisdiction and cover both those who are named respondents and any other persons who might involve themselves in forcing a marriage onto V by (according to subsection 3) aiding, abetting, counselling, procuring, etc. This also includes conspiracy to force or attempt to force a marriage.

All of this means that the net given to the court is extremely wide, and rightly so; the FMA takes account of the fact that, unlike a situation of straightforward domestic violence where there may be one perpetrator, in a situation involving forced marriage, or indeed honour-based violence, the intended victim's entire extended family may choose to involve themselves, as indeed may members of the external community in which the victim is living.

It is an accepted fact that in many communities, community elders have key roles to play in enforcing community behavioural rules and under the FMA such involvement could mean community Imams, for example, being made subject to orders if they choose to involve themselves in forcing such a marriage, either within this jurisdiction or abroad.

Similarly the amendments to the Family Proceedings Rules provide wide powers to join any person or group of people that they feel appropriate (Rule 3.30) and allow the court to make orders for disclosure of documents against a person who is not a party (Rule 3.31). This useful provision would assist by allowing the court to make orders against the Passport Office or the Home Office for disclosure of any applications that may have been made by family members on behalf of a victim.

Who can apply?

As already stated, the court can make an order of its own initiative (s.63C subsection 6) in circumstances where there are already ongoing family proceedings. Subsection 7 extends the definition of 'family proceedings' to include those in Part 4 of the SLA, but also proceedings under inherent jurisdiction of the High Court relating to adults, proceedings in which the court has made an emergency protection order under s.44 of the Children Act 1989 and orders for the recovery of abducted children, etc, under s.50 of the Children Act 1989.

In reality forced marriage in most cases will take place abroad and there may be many other ancillary issues such as offences against the person (assault, abduction, rape, even murder) and to that extent the Forced Marriage Act slots in as the missing piece in a raft of criminal and civil remedies which may come into play. If there is an overseas element, then wardship or inherent jurisdiction regarding adults may require applications to be before the High Court.

The victim him/herself may make an application. The Act recognises however that isolation through threat or actual physical isolation may mean that the victim is unable to seek out appropriate helps themselves. The Act therefore allows for two other categories of applicants (see s.63C (2)(a) and s.63C (3)).

With the leave of the court someone associated with the victim can apply on their behalf. In reality this could be anyone from a family friend to a concerned teacher to a member of the victim's own family. Rule 3.27 governs leave applications and the applicant is required to file written evidence including their reasons, their connection to the person to be protected, the extent of their knowledge of the circumstances and details of the wishes and feelings of the victim.

The reality is however that the same risks, threats and pressures that apply to the victim may also apply to those close to them/connected to them and in recognition of that (and after extensive consultation) the Act includes the role of the 'relevant third party' ('RTP'). Just who the RTP would be was the subject of a consultation in itself, which lasted over a year. After having garnered all their replies, the Ministry of Justice was still undecided as to who should fill this pivotal role and employed a further independent consultant to look at the role. With less than a week to go before the Act became law the decision had yet to be made and with literally days to go it was announced that the relevant third party would be designated as 'local authority employee.'

A proposed pilot of designating independent domestic violence advisors in a target area has apparently been shelved for the time being. It is anticipated that concerned friends or relatives could approach the local authority and ask that they make an application on behalf of a victim but how this will work in practice is yet to be tested. For provisions relation to the RTP, see s.62C(2)(b).

Which court venue?

There are 15 designated Forced Marriage Courts throughout the country and here the jurisdiction is confined to County Courts and High Courts. Many are already developing or have developed their own safety protocol which in itself recognises the high level of risk involved to the victim when a Forced Marriage Protection Order is applied for.

Section 63N allows for the possibility of jurisdiction being extended to Family Proceedings Courts, although that is not under consideration at this time. At the first instance under s.63D an ex-parte application can be made. Save in the case of ex-parte orders, the court must attach a power of arrest ('POA') to any order if the respondent(s) has used or threatened violence unless it can be shown that the victim can be otherwise protected. POAs can impact on any person who is not a respondent but who is named in the order, again widening the scope and recognising the family and community involvement in such cases. POA is covered at s.63H.

Sections 63I through to L cover arrest and remand with provisions that are directly comparable with those for breach of injunction. Section 63(l) allows the court to require a remand for the purposes of retaining a medical report where necessary.

A civil not a criminal remedy

Following the 2006 report of the consultation from the previous year, 'Forced Marriage, A Wrong Not a Right', the Government reported that their enquiries of victims and support groups indicated that they would be less likely to use the legislation if it would involve the criminalisation of their family members.

In the subsequent consultation of the Home Affairs Select Committee on 'Domestic Violence, Forced Marriage and Honour Based Violence', the views of those polled were far less decisive with many support organisations arguing strongly for criminalisation. The issue remains in the balance and the Government has committed to reconsider this when the Act is reviewed after the first year. The reality is that victims of forced marriage may also be victims of serious criminal offences, therefore the argument for not criminalising loses weight.

For practical purposes, the FMA does not annul marriages and an application would have to be made for an annulment in the usual way under the Matrimonial Causes Act 1973.

Other applications under the Children Act such as specific issues or prohibited steps orders and indeed public law applications may also need to be considered depending on the facts of the case.

The promised consultation over the issue of legal aid has not taken place, which is a great pity because there are significant funding issues which arise in cases that fall within the remit of the Act that do not occur outside of its scope.

Because of the extremely high risk that is faced by many victims who flee forced marriage, in that they may face serious criminal offences being perpetrated against them if they are found, many often choose to run and hide. It therefore may be very difficult for them to make an application in their own locality as their whereabouts would immediately be identified and they would be instantly vulnerable as a result.

Tailored fixed fees on the lowest form of legal aid, CW1 mean it is more difficult to deal with such circumstances, although the Principal Registry has recently indicated its willingness to consider these cases as it would if the applicants were within the police protection scheme and thus keep confidential both the victim's address and their instructed solicitor's address. Negotiations are underway with the Legal Services Commission to attempt to agree a way forward for funding these cases to ensure that the victim's needs are recognised.

As a post-script to this article, training is being conducted up and down the country for local authority workers, police officers, lawyers and most other frontline workers who may come across these issues. What is apparent is that most local authority employees are not aware of their RTP status, nor has funding been made available to pay for court proceedings to be issued within local authority budgets.

Consideration is currently being given to a proposal for panel membership/accreditation for solicitors wishing to undertake this work because of the very high risk involved to the individual clients.

Relevant case law:

i) Re KR (Abduction: Forcible Removal by Parents) [1999] 2FLR 542 (Singer J.)

ii) P v R (Forced Marriage Annulment: Procedure) [2003] 1 FLR 661 (Coleridge J.)

iii) Re SK (proposed plaintiff) (an adult by way of her litigation friend) [2005] 2 FLR 230 (Singer J.)

iv) Re E (an alleged patient); Sheffield City Council v E and S [2005] 1 FLR 965 (Munby J.)

v) M v B, A and S (By the O.S.) [2006] 1 FLR 117 (Summer J.)

vi) Re SA [2005] EWHC 2942 Munby.J.

vii) NS v MI [2006] EWHC 1646 Nullity Procedure.

viii) X City Council v (1) MB (2) NB (3) MAB [2006] EWHC 168 (fam).

ix) KC and NNC v City of Westminster v IC (by litigation friend) [2008] EWCA CIV 198.

x) REB; RB v FB and MA (FORCED MARRIAGE:WARDSHIP:JURISDICTION) [2008] EWHC 1436 (FAM).

Significant research and publications:

'¢ BME Women's Struggles against Forced Marriage and Honour Based Violence, Hannana Siddiqui, SAFE, Volume 22 (2007).

'¢ Forced Marriage, Family Cohesion and Community Engagement (Luton Study) Dr Nazia Khanum, (March 2008).

'¢ No Recourse No Safety, Southall Black Sisters and Amnesty International, (2008).

'¢ Crimes of the Community: Honour Based Violence in the UK, Centre for Social Cohesion (James Brandon and Salam Hasez) (2008).

'¢ Shame and Daughters of Shame, Jasvinder Sanghera (2008)

Government enquiries and consultations:

'¢ 'Forced Marriage, A Wrong not a Right', Home Office (December 2005.)

'¢ 'Domestic Violence, Forced Marriage and Honour Based Violence', The House of Commons Home Affair Committee (6th report of 2007 '“ 2008) (20 May 2008).

'¢ 'Forced Marriage, the role of the relevant third party', Ministry of Justice Consultation (December 2007)

'¢ Forced Marriage, Court Rules (December 2007).

'¢ 'Marriage to Partners from Overseas', Immigration and Borders Unit (2007/2008).