We now turn to the specific consultation questions
Breach of Forced Marriage Protection Orders
Q: Do you think that the model for breaching FMPOs should follow that for breach of non-molestation orders? Specifically:
– should it be an offence to breach any/all provisions contained in the order; with no specific power of arrest required;
– if the CPS decides that there is not enough evidence to provide a realistic prospect of a criminal conviction, or that a prosecution is not in the public interest, should victims still have the choice to return the case for committal in the civil court; and
– what penalty should apply for the maximum sentence for breach of a FMPO (in England and Wales breach of a non-molestation order or a restraining order currently attracts a maximum sentence of five years).
60. A: Yes. As stated above, we understand that the government has already made clear its intention to criminalise breach of the FMPO.
61. We support the criminalisation of the breach of a FMPO. The breach of the FMPO should be dealt with in the same way as breaches of non-molestation orders, with the same maximum 5 year sentence applied. Our view is that as perpetrators have been forewarned about the consequences of a breach of an order, criminalisation under circumstances where they still breach the order is justified. Orders without effective sanctions for those who are determined to breach them otherwise makes no sense, since any deterrent value they have is diminished. However, we would also stress that the victim must also have the option to pursue committal proceedings for contempt of court if there is no prosecution by the CPS. Criminalisation of a breach of FMPOs will also meet the requirements of Article 31,1, of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, 2011.
62. We support the suggestion made by the Odysseus Trust that the CPS should apply its guidance on the breach of non-molestation orders to the breach of FMPO; the guidance states that if the CPS decides not to prosecute, the complainant needs to be told immediately so that she can consider applying to the family court for protection as soon as possible.
63. Our main concern however, lies with the enforcement of breaches of protection orders. At present, our experience of the enforcement of non-molestation orders in domestic violence cases, even where there are powers of arrest are attached, is disturbing. The police and CPS response is inconsistent and there are a number of case where they continue to trivialise or remain indifferent to domestic violence, even where risks are known to them, which result in tragic consequences. In one case in 2009, a young Asian mother from Southall was killed by her abusive partner despite having obtained a non-molestation order with powers of arrest attached. She had called the police following an incident of assault that occurred after the protection order had been obtained. But the police who attended left after issuing a verbal warning to the abuser. They did not act on the power of arrest or enforce the order. In response to complaints from SBS, the Chief Superintendent of the police stated that his officers ‘did not understand the power of arrest’!
64. The case is dramatic reminder of how the police fail to enforce orders even where powers of arrest are attached. More must be done to improve police response, regardless of whether or not a power of arrest has been attached to an order that has been breached. The monitoring and implementation of breaches also needs to be improved and the terms of an order need to be drafted carefully and clearly, setting out precisely what constitutes a breach.
65. We also call for more support to be made available for victims to report breaches and to pursue criminal or civil proceedings. We are concerned that it is the victims of violence and abuse who are treated as ‘criminals’ particularly in criminal proceedings, rather than the perpetrators. The knotty problem of complainants withdrawing allegations, usually for very valid reasons, cannot be addressed if a punitive and authoritarian attitude towards victims is taken. Violence against women is a complex phenomenon experienced in relationships involving a continuum of power and control.
Q: Do you think there is another model, e.g. in Scotland or any other jurisdiction that would be more suited?
66. A: No. Our view is that the system in respect of obtaining non-molestation orders works well, although please note the comments made above about how in some cases, complainants of domestic violence are themselves treated as ‘criminals’ and are often themselves arrested and charged or cautioned for withdrawing complaints.
67.The Scottish model is relatively new and needs more time to be embedded and evaluated. It is also unclear how effective new legislation has been in other European countries, which have different histories of migration and social policy developments on issues such as forced marriage and State responses. NGOS in countries where criminalisation of forced marriage has been introduced state that whilst it gives a clearer message that forced marriage is wrong, it has not led to many prosecutions. We are not aware of any research that had been undertaken to assess the effectiveness of measures that criminalise forced marriage in other jurisdictions and so any comparison with the experiences of other jurisdictions with the effectiveness of civil remedies in the UK is futile. We cannot stress enough the need for more research on the consequences of criminalising forced marriage before it is criminalised in the UK.
Q: Do you think that other named respondents who knew that an order had been breached but did nothing should also be liable to prosecution for breach of an order? Please explain your answer. If yes, what level of involvement should attract such prosecution? What scale of penalties should apply?
68. A:No. Whilst we are sympathetic to the reasons behind this measure, we do not think it is workable. It is not practical since it would be very difficult to assess the level of knowledge and awareness possessed by other named parties to the order. It could also catch other ‘victims’ in the family who may be aware that a breach has taken place, but who were too afraid to come forward. We are concerned that the order will also have the effect of increasing suspicion and accusation within the community and will increase the perception that certain communities are being targeted for reasons that are not about the protection of forced marriage victims.
69. We note that the proposed clause does not currently apply to non-molestation orders and without further information as to how FMPOs are currently being breached, especially in respect of the levels of collusion involved, it is difficult to justify why this measure should apply to forced marriage orders but not to other non molestation orders. The result will amount to differential standards being applied to different communities which will be unfair and discriminatory.
Q: What mechanisms, if any, do you feel would assist victims and witnesses, particularly the young, in disclosing the breach of an order? Please explain your answer
70. A: We cannot emphasise enough the need for more support and advocacy, counselling and support services. The funding of NGOs, particularly those for specialist BME women’s services has reached a crisis point; many have closed or are faced with closure. (See Para 17 above.)
71. Our experience and research shows that it is specialist services that create the safest space for reporting abuse; victims know that they will be treated in a confidential and non-judgmental way. Moreover, it is such specialist services and in particular their advocacy and monitoring role that ensures that there is access to justice and that there is accountability from key law enforcement and other statutory agencies that have historically been indifferent to or hostile to policing crimes of violence against women.
Q: Do you feel that any other mechanisms, in addition to existing special measures (e.g. video-recorded statements, live links, screens) in court, need to be in place to help victims and witnesses of forced marriage, particularly the young, through the criminal justice process once any criminal prosecution proceedings take place? If yes, please explain your answer, giving examples of the types of mechanisms and resources needed.
72. A: See our response above. The provision of specialist, well resourced NGOs is critical. Also, increased safety in public spaces, including public transport, schools and courts, improved safety in designated waiting areas in courts, are some important mechanisms that will help with reporting and witness protection.
73. In practice, the same measures concerning the safety of children and rape and domestic violence victims need to be followed in forced marriage cases. The statutory guidance on forced marriage must be followed, especially in respect of maintaining confidentiality and the dangers of family and community involvement in any protection measures taken.
74. There is a pressing need to ensure that guidance and guidelines for schools in particular, are implemented correctly. Effective monitoring of forced marriage policies and procedures in schools must be carried out by OFSTED inspectors when carrying out school inspections.
Criminalisation of Forced Marriage
Q: Do you believe that the current civil remedies and criminal sanctions are being used as effectively as they could be in tackling forced marriage? If not, what more do you think can be done to prevent forced marriage including ensuring victims are not deterred from reporting?
75. A: No. Please see our responses above and section on proposed alternatives below for our recommendations for taking more effective action on tackling forced marriage. Our view is that effective implementation of civil remedies is being hampered by weak enforcement of the laws, indifference and ignorance of the civil remedies available, especially within the police force and in schools.
76. Significantly, campaigns by women’s organisations, especially BME specialist organisations, to create a culture of ‘zero tolerance’ within communities are seriously hampered by the acute lack of funds and support from local and central government.
77. Instead, emphasis is increasingly placed on religious leaders to deliver change, irrespective of the fact that such leaders have no track record in addressing violence against women from a human rights perspective and historically have no interest in gender justice. Despite this, we note with some alarm that funding and political support is being channelled to faith-based organisations and leaderships even though many greatly undermine the work of secular women’s organisations that have brought about the positive change in State response to gender-related violence, including forced marriage in the first place.
78. There is an urgent need to re-think the faith-based approach to equality and social justice since all religions have institutionalised discrimination against women and sexual minorities and cannot deliver justice in these areas.
Q: Do you think a criminal offence should be created for the act of forcing someone to marry against their will? If so, how do you think the offence should be defined?
79. A: No, see our reasoning above. The criminalisation of forced marriage is very likely to deter victims from coming forward, will lead to fewer prosecutions (due to the high standard of proof needed) and will drive the problem underground. We are particularly concerned that criminalising forced marriage will also lead to fewer FMPOs since victims will immediately feel nervous about any police involvement and will not trust statutory or voluntary agencies.
80. We believe that the implementation of the existing criminal laws in a sensitive yet robust manner is the more constructive and viable way forward. We also support the demand to ensure that forced marriage is treated as an aggravating feature at the sentencing stage of procuring a marriage, which will serve the purpose of deterrence.
Q: What issues should be considered to ensure that a new offence does not deter people from reporting the crime?
81. A: We strongly oppose the creation of a specific criminal offence of forced marriage. See above. It will act as a major deterrent for victims and will undo the progress that has been made over the last decade or so.
82. Adequate and ring fenced funding for women only services including refuges, especially for BME women, robust implementation of the guidance and guidelines on forced marriage, robust mechanisms for law enforcement and accountability from the police and other key statutory bodies and more campaigns on awareness raising within schools are all important and desperately needed. These measures will be more effective in enabling vulnerable people to report their experiences and will create a more constructive environment for their empowerment.
Q: Do you think there should be an offence of luring someone abroad; luring someone to this country or indeed within this country; or from one country to another for the specific purpose of forcing them to marry?
83. A: No. This would have the same impact as criminalisation, and in any case, victims are often taken abroad on the pretext of holidays and are often unaware of the real reason for their travel. In other cases that we have seen, families go abroad for genuine reasons but then fall under pressure by other relatives to arrange a marriage. It will be difficult to show that this involved ‘luring’ someone abroad for the purposes of marriage since that might not have been the original intention. In these situations, a forced marriage will not be prevented.
Q: How far do you think a person’s circumstances and age influence their approach/ attitude in seeking protection/ justice?
84. A: There is no question that age in particular, has a major influence on a person’s approach to the question of justice and protection. Young age can greatly enhance vulnerability, but often it is combination of age, gender and personal circumstances that influence attitudes to justice and protection. The younger the person, the more likely she is to be physically and emotionally dependent on family structures. Many Asian women for example, are socialised into living in families where the roles are one of inter-dependence on each other. Many are therefore psychologically ill equipped to lead independent lives and find the prospect of living outside of family and community networks a frightening and deeply isolating experience. Precisely for this reason, few will contemplate supporting criminal prosecutions if that involves closing the door on any future prospect of rehabilitation. See the case of RM cited above.
Q: Do you think that the creation of a new criminal offence would make the law clearer?
85. A: No. It will do more harm than good. A new criminal offence may send a clear message but this will be meaningless if victims are deterred from coming forward. In any event, remedies in civil and criminal law and excellent statutory guidance and guidelines on forced marriage are already in place. What is needed is the political will to ensure better enforcement of the civil and criminal remedies that exist and for a sustained campaign that can create a wider culture that is intolerant to all forms of violence against women and vulnerable persons. The need for specialist women’s organisations, (the main driving force behind the changes we have seen on violence against women including forced marriage in the last decade), is critical. Vibrant civil society organisations that can offer both meaningful protection and challenge community attitudes are the most effective way of making clear that forced marriage is not acceptable.
Q: Do you think the creation of a new criminal offence would make it easier for professionals to tackle the problem?
86. A:No. The Forced Marriage (Civil Protection) Act, statutory forced marriage guidelines, and other domestic violence and child protection policies and procedures already make it clear that forced marriage is an issue that must be tackled and that protection is the main objective. These measures have been accompanied by effective media campaigns and other public events. The problem is not a lack of clarity about legal measures but the lack of resources and the will too ensure that the laws are enforced. Adequate enforcement remains the most critical issue of the day in respect of violence against women in particular. It is more important to focus on this issue and to introduce effective monitoring and enforcement mechanisms so that the guidelines, policies and procedures are properly implemented across a range of statutory agencies charged with the protection of vulnerable adults and children.
Q: Do you think that criminalising forcing someone to marry would change public opinion towards forced marriage, particularly in those communities most affected?
87. A: It may help to change public opinion, but the practice is likely to be driven underground and fewer victims will come forward, which will defeat the very purpose of criminalisation. Making forced marriage an aggravating factor is a better way to shift public opinion, along with a range of measures that we set out below.
Proposed alternatives to the creation of a criminal offence on forced marriage
88. We set out below a list of possible alternatives to the creation of a specific criminal offence which can help to improve mechanisms of protection and redress, increase awareness and increase recognition of the view that forced marriage is unacceptable and that the practice violates the fundamental rights and freedoms of vulnerable adults and children. The list is by no means exhaustive.
89. The creation of a Violence Against Women Act:Perhaps one way forward is to have a specific Violence Against Women Act which could provide for all civil and criminal remedies in one consolidated piece of legislation with the overriding aim of protecting all women and children but without watering down fundamental principles of civil and criminal law. The Act should contain a definition of domestic violence which includes all forms of violence, abuse and coercive patterns of control, including financial, psychological and culturally specific forms of abuse and control, in different family contexts.15 The Act should also provide for resources to be made available in the form of alternative housing, access to legal aid and welfare benefits, and advice and advocacy services, all of which are prerequisites for surviving abusive relationships.
90. Integrate the needs of BME women and girls in a broader Violence Against Women and Girl’s (VAWG) Strategy: The needs of BME women and girls should be fully integrated the Government’s and other VAWG strategies. Currently, issues concerning BME women such as forced marriage are included in strategies in a piecemeal fashion but this does not address the whole range of problems affecting BME women, such as those created by the intersection of gender-related violence with immigration/asylum issues, religion and religious practices, lack of funding and legal aid and racism. Currently, the Government’s VAWG policy is contradicted and undermined by other initiatives and policies on legal aid, family-related migration and family justice which place emphasis on mediation in family cases. These have a profound and disproportionate impact on BME women who face significant external and internal barriers to protection. A joined up and clear strategy on violence against women as a violation of women’s economic, social and legal rights will encourage the development of a strategic approach which guarantees the right to live free from violence and abuse to all women16.
91. Strengthen the civil law:We support the proposal to make a breach of a FMPO a criminal offence, but it is also necessary to keep the civil route of contempt of court open, because it will give greater choice to the victim. FMPOs should also have a power of arrest attached as a matter of routine.
92. At present, a marriage conducted without consent due to duress for example, can be annulled if it can be shown that the duress experienced was such that the ‘will was ‘overborne’. This may however, be too high a threshold for some women to cross. In civil law, consideration should therefore be given to the question of whether the test for duress should be lowered to take account of the more subtle but still highly coercive forms of pressure that is often applied in a forced marriage.
93. In marriage law, a marriage without consent is considered voidable rather than void. In other jurisdictions however, a marriage without consent is considered ‘void.’ We believe that a forced marriage should be declared void. This may be significant for those victims who experience stigma for having been married previously, even if that marriage was forced and subsequently annulled. It may therefore be useful to revisit the law on void and voidable marriage to increase the choices women have when seeking civil remedies. This is particularly relevant in cases where victims lack capacity or if they have not been able to obtain an annulment within three years of marriage.
94. Child protection measures: We should also look at ways of improving the implementation of child protection measures. Many of the black and minority women’s groups and survivors that contact us are extremely critical of social services. They stated that a general inertia or desire to mediate and reconcile, dominates social services’ approach to forced marriage, even though the desire to keep families intact comes into direct conflict with the duty to safeguard and promote the well being of children. In many instances, forced marriage guidelines are simply not being followed by social services.
95. Principles such as ‘significant harm’ enshrined in the Children Act need to make specific reference to culturally specific forms of abuse such as forced marriage’. Duties in the Act (for example s17, 31, 46, 47,) also need clearer guidelines so that there is more effective use of the powers available to social workers.
96. There ought to be more effective monitoring mechanisms to ensure that cases of forced marriages are properly investigated by social services, the police, schools and other child welfare agencies; and that victims, including those aged 15 years upwards, are fully protected and supported.
97. Introduce new criminal sentencing guidelines on forced marriage:We see no reason why forced marriage cannot be taken into account at the sentencing stage in criminal proceedings. Judicial guidelines on sentencing in forced marriage cases could be developed to ensure that forced marriage is seen as an aggravating feature as should domestic violence more generally. The advantage of this proposal is that it recognises the seriousness of forced marriage and will send out a strong message that forced marriage is a crime, without having the same deterrent effect on the victim as the creation of a specific criminal offence of forced marriage.
98. Legal aid: Civil law remedies will continue to play a major role in protecting victims from abuse and will provide the major route to redress. Yet the recent legal aid cuts will make it very difficult for women and other vulnerable persons to access justice. We are particularly concerned about the combined impact of cuts in legal aid and the promotion of alternative methods of dispute resolution on black and minority women. Many come from communities where they are already under immense pressure to stay silent about their experiences of abuse and violence and are expected to resolve family matters internally. Whilst mediation can help some couples in the wider society, the use of mediation as an option in some black and minority communities, where the stranglehold of religion and culture is strong or absolute, must be regarded as a potentially high risk measure. The growth and accommodation of demands for separate religious arbitration tribunals are alarming developments which we fear will take on a more controlling role in women’s lives, if women are denied access to the wider legal system.
99. Full and proper access to legal aid without pressure to reconcile must be available so that adequate legal advice and representation is available to those who are most vulnerable.
100. Homelessness law: There is an urgent need to reform homelessness legislation so that young single adults who are clearly vulnerable are provided with emergency and long term housing. In cases of forced marriage, young adults should be accepted as vulnerable (at present this concept is being narrowly interpreted.) The practice of asking victims to remain with their families (with or without protection orders) is also clearly inappropriate and dangerous. In some cases, where a young girl has escaped with a partner, proper consideration should be given to housing the couple together since a partner may be the only source of emotional support for the victim who may be ostracised from her family and community and in fear for her safety.
101. More refuges/housing/advice and advocacy services, and access to welfare benefits and education grants:The massive public sector spending cuts have had a devastating and disproportionate impact on specialist services provided by and for BME women. There is an urgent need for specialist shelters, counselling, advice and advocacy services for black and minority women and especially for those aged between 15 and 21. Access to full welfare benefits, emergency and long term housing and grants to continue education, are prerequisites to enable a young victim to feel safe and secure in rebuilding a life outside of her family and community.
102. Changes in immigration law: Abolish immigration law and rules which impact negatively on victims of forced marriage. For instance, under the marriage rules in immigration law, spouses to a marriage have to be at least 18 years of age before they are allowed to come to the UK as the partner of a settled spouse. Parents circumvent this rule by taking children abroad, forcing them to marry and then maintain strict control at least until they turn 18 and can sponsor their spouse to the UK. These issues were recognised by the Supreme Court in the cases of Quila and Bibi, which overturned the Government’s 21 age related policy in October 2011. Less restrictive immigration controls more generally, will make it easier for victims to protect themselves from abuse, since pressures to sponsor spouses into the UK will decrease. This will enable many to escape family pressures to stay within a marriage
103. Conduct a nationwide campaign against forced marriage as part of a campaign on violence against women generally:As with the earlier ‘Zero Tolerance’ campaign on domestic violence, it is necessary to fund and support campaigns on forced marriage, and gender-related violence especially within communities, since it will help to create the recognition that these are crimes against women amongst the police, other statutory agencies, in communities and in society at large. 104. More awareness raising education in schools/colleges: Concerted educational campaigns on forced marriage should be conducted within schools and colleges. Forced marriage should also be taught in schools within the framework of VAWG and healthy and respectful relationships as part of the national curriculum so attitudes and behaviour in the long-term can change. We are concerned that the Personal Social and Health Education (PSHE), where these issues can be taught, is not a statutory requirement.
105. Law and policies on school absenteeism should make specific reference to the issue of forced marriage and clearer guidelines should also be incorporated in schools and colleges and for OFSTED inspectors. Designated people within the school/college system should be trained to address the matter and organise counselling and support to children and young people who fear being forced into marriage or fear being removed from the country for the purposes of marriage. Such a person could also regularly monitor the effectiveness of school procedures in cases of forced marriage.
106. Improved implementation of multi-agency statutory guidelines on practice forced marriage:The monitoring and enforcement mechanisms for the implementation of guidelines are inadequate and need to be improved to ensure proper implementation and accountability on the part of statutory bodies. A recent Government review, published in 2012,17 on the implementation of the statutory forced marriage guidelines highlighted many shortcomings: a lack of commitment within agencies to address the issue of forced marriage, an inconsistent approach to training and disparity in the way different agencies and individual departments within those agencies handle and monitor cases of forced marriage. For example, social care services have difficulties responding to cases of forced marriage involving children aged 15 and under, but departments had even greater difficulty providing an appropriate level of response to persons aged 16 and 17 and facing forced marriage. Many children’s social care departments found it hard to find appropriate housing or foster placements for this vulnerable age group. The review also found that agencies wanted an audit tool and performance indicators to monitor and improve their response to forced marriage. The review recommends that OFSTED, HMIC and CQC and other inspectorates consider an agency response to forced marriage as part of each inspection.
Southall Black Sisters 21 Avenue Road Southall Middlesex UB1 3BL
This submission is endorsed by the following:
Aisha Gill, Reader in Criminology, University of Roehampton
Angelou Centre, Newcastle
Ann Marie, Dawson Cornwell Solicitors
Apna Haq, Rotherham
Ben Hoare Bell Solicitors LLP, Newcastle
Birmingham and Solihull Women’s Aid
Child and Women Abuse Studies Unit (CWASU), London
End Violence against Women
FORWARD (Foundation for Women's Health Research and Development)
1 R (on the application of Quila and another) v Secretary of State for the Home Department  UKSC 45  3.W,L.R. 836
2 Forced Marriage: Eighth Report Session 2010-12, Home Affairs Select Committee, 17 May 2011.
3 The Government Response to the Eight Report from the Home Affairs Committee Session 2010-12 HC 880: Forced Marriage, Presented to Parliament by Secretary of State for the Home Department, July 2011.
4 Judicial and Court Statistics; Chapter2: Family Matters
5 Forced Marriage Consultation, December 2011, Home Office.
6 Exploring the Viability of Creating a Specific Offence for Forced Marriage in England and Wales: Report on Findings, Dr Aisha K. Gill, University of Roehampton, July 2011.
7 See, for instance, The Cost of Domestic Violence: Up-date 2009, Prof. Walby, Lancaster University, 2009.
8 See Measuring the Impact of cuts in public expenditure on the provision of services to prevent violence against women and girls, Towers and Walby, Trust for London and Northern Rock Foundation, 2012.
9 We are aware that figures provided by agencies are unrepresentative of the actual numbers of forced marriages that take place either in the UK or abroad. We suspect that the actual figures are likely to be higher due to the fact that many victims will not or cannot report the matter to the authorities and that some may perceive a marriage to be ‘arranged’ rather than forced. There are a significant numbers of ‘arranged’ marriages where emotional and financial pressure is used as the main coercive element of control. This often blurs the dividing line between forced and arranged marriages
10 Latest figures for 2011 taken from http://www.fco.gov.uk/en/travel-and-living-abroad/when-things-go-wrong/forced-marriage/
11 See Cohesion, Faith and Gender: A report on the impact of cohesion and faith-based approach on black and minority women in Ealing, Patel and Sen, Southall Black Sisters, 2011 for further information.
13 See The Missing Link: a joined approach to addressing harmful practices in London, Greater London Authority/Imkaan et al, 2011 and Imkaan’s submission for further information.
14 See Safe and Sane: A Model of Intervention on Domestic Violence and Mental health, Suicide and Self-harm Amongst Black and Minority Ethic Women, Siddiqui and Patel, Southall Black Sisters Trust, 2010, for evidence on disproportionate rate of suicide and self harm amongst Asian and other minority women caused by abusive practices in the family, including forced marriage.
15 We note that the government is currently consulting on the cross - government definition of domestic violence and on whether it should be widened. See http://www.homeoffice.gov.uk/publications/about-us/consultations/definition-domestic-violence/dv-definition-consultation?view=Binary
16 See for example, the forthcoming recommendations made by SBS and the End Violence against Women coalition, who are developing a strategy on Violence against BME Women and Girls.
17 Report on the implementation of the multi-agency statutory guidance for dealing with forced marriage (2008), Home Office, 2012.