Forced Marriage, Parliament and the Courts

The 153 clauses and 8 Schedules of the Anti-social Behaviour, Crime and Policing Bill address a range of anti-social issues [1], including provisions which create two new offences: one of breaching a Forced Marriage Protection Order, (FMPO), clause 103; and another of  forced marriage, clause 104, which carry maximum sentences of 5 years and 7 years respectively when tried on indictment. The background to these changes to the law is summarized in the Explanatory Note to the Bill, as introduced in the House of Commons on 9 May 2013, which states [at 27 and 28]

“The Forced Marriage (Civil Protection) Act 2007 inserted a new Part 4A in the Family Law Act 1996 which provides a specific civil remedy – the forced marriage protection order – against forced marriage in England and Wales. A forced marriage protection order may contain as many provisions as the court deems necessary to protect a person who is at risk of forced marriage or who has already been forced into a marriage.  . . . . . . . . .  Breach of a forced marriage protection order is currently dealt with as a civil contempt of court punishable with a fine or a custodial sentence of up to two years’ imprisonment.”

“  . . . . .  A consultation published in December 2011 sought views on how the new offence should be framed, specifically on a proposal to use as a model the existing offence of breaching a non-molestation order which a court may make to protect a person from domestic violence. That consultation also sought views on whether forcing someone to marry against their will should become a criminal offence, or whether the existing civil remedy, set-out in Part 4A in the Family Law Act 1996, was sufficient.

A majority were in favour of the creation of a new offence and the Government concluded that criminal offences were necessary, in addition to the civil regime, to act as an effective deterrent, to properly punish perpetrators, and to fulfil the United Kingdom’s international obligations under the Istanbul Convention signed in 2012.”

A summary of the responses was published in June 2012, following which it was announced that forced marriage would be criminalised.

The current weaknesses in the law were highlighted in the recent case of Bedfordshire Police v RU and FHS [2013] EWHC 2350 (Fam) reviewed in ObiterJ’s Law and Lawyers blog, here. Mr Justice Holman held that a Police Force was not permitted to apply for a person to be committed to prison for contempt of court for breach of a Forced Marriage Protection Order (FMPO) when it was not the applicant who obtained the order.  He stressed that although the issue was one relating to standing, in his view it was “of some constitutional importance” in that “the facts of this case reveal, or illustrate, serious weakness in the scheme of the forced marriage protection provisions which were inserted as Part 4A into the Family Law Act 1996 by the Forced Marriage (Civil Protection) Act 2007 and which came into force in November 2008.”

Unlike a Non-Molestation Order within Part 4 of the 1996 Act, although an FMPO contains a power of arrest, a breach of the Order is not an offence.  Enforcement is triggered by contempt of court proceedings, which may be initiated by: the party who obtained the order; the Attorney-General, where this is in the public interest; in exceptionally, by the court itself, Clarke v Chadburn [1985] 1 WLR 78.

In summing up, Mr Justice Holman said [at 38 to 40]

“In my view, the facts and circumstances of this case do reveal or illustrate a grave weakness in the existing forced marriage protection order machinery as enacted in Part 4A. “

“Forced marriages are a scourge, which degrade the victim and can create untold human misery. It is vital that FMPOs have real teeth and that people bound by them, or having notice of them, appreciate that they are capable of being enforced and will be enforced even though the applicant young person may not seek enforcement himself or herself. The scope for psychological or other pressures in this field is obvious and is enormous. I note in the footnote to section 63I of the Family Law Act 1996, on page 1017 of the current, 2013, edition of the Family Court Practice, that, ‘Following a consultation process, the Government announced its intention to make forced marriage a criminal offence and for a breach of a forced marriage protection order to be criminalised.’ “

“By this judgment I 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. It is not for me to suggest how that should be done.”

The Bill completed its Committee stage in the Commons on 16 July 2013 and will proceed to Report and Third Reading when MPs return from the summer recess.


[1] A Bill “[t]o make provision about anti-social behaviour, crime and disorder, including provision about recovery of possession of dwelling houses; to make provision amending the Dangerous Dogs Act 1991, Schedules 7 and 8 to the Terrorism Act 2000 and the Extradition Act 2003; to make provision about firearms and about forced marriage; to make provision about the police, the Independent Police Complaints Commission and the Serious Fraud Office; to make provision about criminal justice and court fees; and for connected purposes.”

 

2 thoughts on “Forced Marriage, Parliament and the Courts

  1. Coincidentally, two days after David posted this Foreign Office minister Mark Simmonds made a statement in which he warned that “The school summer holidays are the time when young people are at the highest risk of being taken overseas for a forced marriage” and said that anyone at risk of being forced into marriage should contact the FCO/Home Office Forced Marriage Unit for support, whether at home or already abroad.

  2. Pingback: Religion and law round up – 11th August | Law & Religion UK

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