A driving force

Feature | 8 December 2009

The Forced Marriage (Civil Protection) Act 2007 celebrated its first anniversary on 25 November 2009. Twelve months on, has it offered improved protection to victims of forced marriage or has it simply been a symbolic piece of legislation?

The legislation inserted a new part 4A into the existing Family Law Act 1996 (sections 63A to 63S). Central to the provisions was the new remedy: a forced marriage protection order (FMPO). Such an order can be made to prevent a feared forced marriage or to initiate practical assistance where the unwanted marriage has already taken place.

In practice, preventative orders have included requirements that respondents surrender the victim’s passport to the court or have forbidden respondents entering into any arrangements for marriage. Orders following an unwanted marriage have included requirements that respondents attend court to disclose the victim’s whereabouts, or that they allow the victim to be interviewed at a British High Commission. The FMPO is flexible; intended to be adjusted to fit the circumstances of the individual case.

Valuable protection

There is no doubt that for those who do come forward, or whose plight attracts the attention of a third party, the FMPO can provide real, valuable protection from courts local to them (there are 14 specialist forced marriage courts outside London). In these first 12 months, 86 FMPOs have been made across England and Wales. This, encouragingly, is considerably in excess of the pre-enactment projection by the Ministry of Justice of just 50 orders per annum.

Research on the issue of the prevalence of forced marriage, however, suggests that this represents but a fraction of the true number of victims who could have benefited from the courts’ assistance (a government commissioned report published in July 2009 estimated that between 5,000 and 8,000 cases of forced marriage were reported in England in 2008).

The government has conducted a review as to how the legislation has worked in practice, recently published and memorably entitled ‘One Year On: the initial impact of the Forced Marriage (Civil Protection) Act 2007 in its first year of implementation’. In the course of the review, the Ministry of Justice conducted enquiries with over 70 people concerned with FMPO applications in practice. Feedback from judges, court staff and lawyers suggested that they had found dealing with FMPOs relatively straightforward. FMPO application hearings had been prioritised and very often were dealt with at the same time as the paper application.

Long-term support

During discussions with professionals concerned with these applications, there was unified agreement as to the profound impact which a FMPO can have on a person’s life. The victim (defined as the ‘person to be protected’ in the legislation) was unlikely to see their family again. One judge said in the course of the review: “These girls are in a cleft stick… they may be in danger… but if they leave home they lose everything.”

Each victim of forced marriage faces intolerable dilemmas. While an application may enable them to prevent or escape a forced marriage, what about the aftermath? Many victims come from close knit families and fear that an application to the court will have repercussions, including permanent ostracism, perceived shame brought upon their family and risks to their permanent safety. One of the issues identified in the review was the essential need for long-term support to be given to victims who have left their families.

Many victims are unable to apply for FMPOs in their own right. Some victims are children, some may be too intimidated, others may have already been taken out of the jurisdiction. The government is keen that the ‘third party’ provisions in the legislation are used to greater effect.

‘Relevant third party’

Any third party may apply for a FMPO, subject to obtaining the leave of the court. Further, the legislation creates the status of the ‘relevant third party’, a category of person designated by the Lord Chancellor who may apply without the court’s permission. On 1 November 2009, local authorities were the first to be given such status. The Ministry of Justice is currently undertaking a support pilot with independent domestic violence advisers, information from which will be used to inform whether IDVAs should also be added to the category of relevant third party.

In practice, many of the applications made thus far on behalf of victims have been sought by police officers. In her recent speech to mark the first anniversary of the legislation, justice minister Bridget Prentice indicated that the government will give consideration to whether police officers should also be given the status of a relevant third party.

In future years, the government will continue to closely monitor how the legislation works in practice. In May 2008, the Home Affairs select committee recommended that if the Act did not have the effect of reducing forced marriage, criminalisation should be reconsidered. What is sure is that this is an issue which will be the subject of political, social and legal debate for years to come.

Vol 153 no 46 08-12-2009

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