Force their hands

The Forced Marriage Act will become Law on 25 November 2008 and at the same time, specialist forced marriage courts will open their doors for the first time in areas in which the Home Office anticipate most cases will arise, from Newcastle-upon-Tyne in the North to Romford, Willesden and Luton in the South, with Wales being represented by Cardiff Civil Justice Centre.

The Act itself has been a long time coming. In August 1999 the Home Office established a Forced Marriage Working Group to investigate the scale and extent of forced marriage across the UK (the results of this were published in a 2002 report titled A Choice by Right).

As a result of the enquiry, the Foreign and Commonwealth Office expanded by setting up a Community Liaison Unit in 2000 with the aim of supporting both victims and professionals dealing with the issue of forced marriage, which in turn developed into the Forced Marriage Unit (FMU) in 2005.

Until recently, the official statistics coming out of the FMU indicated that it actively intervened to help 300 victims a year, although it has always stated that this is just the tip of the iceberg. The FMU has also been very public about the fact that it handles approximately 5,000 enquiries a year. With the wealth of publicity that we have seen about the issue over the past 12 to 18 months, its workload has increased dramatically. The Home Affairs committee of June 2008 report on this issue disclosed that its workload had increased by 50 per cent in recent months.

Karma Nirvana, one of the lead organisations dealing with forced marriage and honour-based violence is dealing with 15 enquires per week since it launched its helpline, the Honour Network, in April of this year. With increased publicity the numbers can only be expected to rise.

Lack of consent

There are many reasons why forced marriages occur. What is generally believed is that they are different and to be distinguished from arranged marriages in which both parties have a choice. In truth, some survivors and frontline workers now believe that there is no such clear distinction and that some element of duress (physical, psychological and emotional) can also be used to ensure co-operation with so-called arranged marriage. Undoubtedly, many arranged marriages are genuinely fully consensual, but the practitioner should not take that as a given.

Some marriages go back to agreements made when the parties were very young, even potentially at birth. The agreements may be made to keep land or capital within families. If one party is reluctant to go through with it, this can mean a loss of honour and shame attaching to the family '“ shame that will need to be redressed. For this reason there is a strong link between honour-based violence and forced marriage. Forced marriages take place here, as well as abroad.

Not a criminal offence

The purpose of the Force Marriage (Civil Protection) Act 2007 is to give family courts the power to prevent forced marriages occurring and to stop attempts to force someone into a marriage where they do not consent.

If a forced marriage has already taken place, the court will be able to make orders to protect the victim while helping remove them from the situation. It will not, as we had initially thought, give the court powers to annul the marriage; that will remain the province of the Matrimonial Causes Act. Nor will it make forced marriage a criminal offence, much to the disappointment of many survivors and frontline support groups.

The Forced Marriage Act amends the Family Law Act 1996, taking a robust definition of forced marriage, saying that a person (A) is forced into a marriage if another person (B) forces A to enter into a marriage (whether with B or another person) without A's full and free consent. No duress has to be applied directly to A, it could be to another person (for example other family members and friends).

Based on part IV of the Family Law Act 1996, the orders available to the court will be similar to injunctive relief. The court will be able to make a Forced Marriage Protection Order to which it can attach a Power of Arrest (but only where there has been a real threat of physical violence) and where someone is in contempt of an order, the current powers of contempt of court can be used to imprison the offending party for up to two years.

Conditions that can be attached to a Forced Marriage Protection Order will include directions to hand over passports, to reveal the whereabouts of a missing person, to prevent someone being taken abroad, and prohibition on taking minors out of the country. As with the current Family Law Act, exact conditions will depend on the circumstances of the individual case.

Who can apply?

Anyone who believes themselves to be at risk of being forced to marry, either in this country, or by being taken abroad, can apply for the protection of the court. This provision raises immediate questions about the viability of the Act: pressure to marry comes from within the victim's own family, from those who are closest to them, and whom they love. The emotional turmoil involved may preclude many from taking action against close family members.

Also, it is a sad reality, as the evidence to the Home Office select committee found, that those most at risk who show their unwillingness to marry, may find themselves imprisoned in their own homes, unable to summon help.

Recognising that vulnerability may prevent victims being able to apply in their own right, the act allows interested third parties to apply with the leave of the court on behalf of the victim. This could include concerned teachers, GPs or other professionals. Equally it could apply to friends or family should they feel able to intervene. The FMU guidance to doctors and other frontline professionals instructs them to be proactive, but the likelihood is that most will either not see the signs, or be reluctant to get involved perhaps out of anxiety of getting it wrong or being labelled racist. For understandable reasons professionals find this topic a minefield.

The Home Affairs committee reported that schools are reluctant to even put up FMU posters advertising help available, for fear of alienating black and minority ethnic communities. Evidence suggests it would take a brave teacher, or a sea change in attitudes, for applications to come from this source.

For the above reasons, the third category of applicant is possibly going to be the most significant. This will be the Relevant Third Party (RTP), as mentioned in brief in the current incarnation of the Act. In all likelihood, the RTP will be a separate professional body who will have the right to intervene on behalf of individuals. Who might take this role is still under debate and has been the subject of a lengthy consultation with interested parties. A Home Office spokesperson said last week that they hoped to have this aspect of the act clarified by November. This is the first indication that this might not be decided by the time specialist forced marriage courts open their doors on 25 November 2008.

Representations to the consultation suggested that this body might resemble the Official Solicitor's office, or Cafcass. Whoever the role falls to will have the responsibility of making applications on behalf of the victims themselves, or when alerted by concerned friends or professionals, thus allowing a buffer between the concerned party and the responsibility for taking a potentially controversial action on behalf of another. It is hoped that the protection this offers will make the Act more widely used.

Involvement of minors

Present evidence shows that in many cases it is those under the age of majority who are vulnerable to a forced marriage. A recent case example identified by the Choice Helpline set up by Cleveland police, which deals exclusively with this issue, concerned a young girl aged 14 who contacted the service in the early hours of the morning. She believed she was going to be taken out of the country, to Pakistan, to be married.

Before she was able to give any further details, the line went dead. After extensive investigation, she was rescued about to board a plane to Pakistan, with family members who had drugged her to ensure her compliance.

In cases such as hers, the Forced Marriage (Civil Protection) Act could provide for orders preventing her from being removed from the country, to remove her passport, and to prevent any further injury being caused to her. But then what? It would be naive to think that she could just settle down with her family again, that they would all put the aborted marriage behind them and everything would be as before.

More frequently than not, the victim is rejected by the family for subjecting them to this dishonour. When the victim is a child, the choices they face are stark: they can stay within their family and make good the breach of honour by going through with the wedding, they can attempt to negotiate (which evidence suggests is not successful in the main), or they can leave their family behind. In doing so, it is likely they will have to be placed in local authority care with a family from outside their culture.

Those with public law experience will know that there is a great shortage of black and Asian foster families. These young people, like their adult counterparts, often find themselves exiled from their own culture, communities, family and everything they know. A good knowledge of available support services is essential for any practitioner involved in this work.

Breach of human rights

Those with white British heritage may feel wary about embarking on work under the Act. It may feel daunting to take on an issue that invokes such defences as culture and religious sanction. The truth is that there is no sanction or religious justification for forcing someone into a marriage against their will.

The FMU is clear that it is dealing with clear issues of breaches of human rights, assault and child abuse. When spurious defence is stripped away and we think of these issues in those terms, these are issues that as practitioners we are comfortable and experienced in dealing with.

The government has made a commitment to eradicate forced marriage, and the Act is a starting point. It will be constantly reviewed, as will the controversial issue of criminalisation. What is clear is that with the increase in publicity and the raising of awareness of available help, the demand for services will rise, and as lawyers, we have a responsibility and a part to play.