Criminalising forced marriage presents new challenges

Courts have been able to issue civil orders to prevent forced marriage since 2008, but it will now be punishable by up to seven years in prison in England and Wales. Campaigners have argued that the new law could deter victims from coming forward as they would not want to see their family members imprisoned.
So, how will the new system work in practice and what are the implications?

A forced marriage is one in which one or both parties are married without full and free consent or against their will. There is likely to be physical or psychological pressure on the parties, including violence, threats or even financial abuse.

Since 2005, victims, in the UK and British nationals overseas, have been able to receive help from the government’s forced marriage unit, which offers safety advice as well as access to professional support. In extreme circumstances, it has helped victims to prevent ‘reluctant sponsor’ cases and rescue those held overseas against their will.

The new Anti-social Behaviour, Crime and Policing Act 2014, which criminalises forced marriages, covers any religious or civil wedding ceremony, whether legally binding or not.

Moreover, in relation to a victim who lacks capacity, the offence is capable of being committed by any conduct carried out for the purpose of causing the victim to enter into a marriage, whether or not such conduct amounts to violence, threats or any other coercion.

Family ties

Many have argued that, under the new law, people forced into marriage could feel deterred from making disclosures for
fear of seeing their own family members sent to prison. The protected person, often a vulnerable child, will usually
be operating amid a mix of powerful familial pressures and will rarely want to institute committal proceedings against those closest to them.

The government has thus allowed for victims who have been forced to marry, or threatened with it, to opt for civil action through a forced marriage protection order via the family courts rather than criminal action. Breaching these orders will become a criminal offence, resulting in a maximum penalty of up to five years in prison.

Third parties, such as the police, relatives and voluntary organisations, will also be able
to apply for a forced marriage protection order on behalf of
the victim.

The new law comes after a number of cases, including Bedfordshire Police Constabulary v RU and FHS [2013] EWHC 2350 (Fam), revealed a stark gap in the protection offered to those at risk and raised the question of whether the regime was really equipped to handle the complex and widespread problem of forced marriage.

In his judgment, Holman J stated that he “would encourage the relevant departments
of state to give urgent consideration to improving
the effectiveness of forced marriage protection orders and the means of enforcement”.

Mental capacity

The nature of the crime means that many cases go unreported, so there are likely to be challenges in implementing the new law. It remains to be clarified how people with learning disabilities will be supported when making the choice to report a crime, if they lack
the capacity to do so.

The government may also wish to issue guidance to the police and other professionals on how to implement the new law to ensure the process
runs smoothly.

Criminalising forced marriage is undoubtedly a huge step forward, which will send a powerful message that this violation of human rights will
not be tolerated.

The flexibility of the new regime, which allows a choice between criminal or civil action, may encourage more victims to come forward. The outcomes
are yet to be seen. SJ

Hanisha Patel is a barrister practising from 7 Bedford Row