The exact number is not known, but the Forced Marriage Unit reports a steady year-on-year increase in referrals. It is a vast issue as forced marriages apply to men and women of all ages, as well as children, with cases ranging from more than 80 countries worldwide.
Victims may be desperate to get out of the situation but may not wish to come forward in reporting relatives who are responsible for the forced marriage. Criminalisation has led, paradoxically, to a greater awareness that the practice is wrong and wrecks lives, but also to individuals not wanting family members to be prosecuted while their prime wish is for the marriage to be ended.
It is worth noting that an arranged marriage is quite different – in this, both husband and wife freely consent to a union where others have introduced them. Modern arranged marriages can result in happy and successful lifelong partnerships.
All legal practitioners who practise in Family and Court of Protection need to know how to spot tell-tale signs, and to know that, in most family proceedings, Forced Marriage Protection Orders (FMPOs) can be made even without an application being instituted. The police, the local authority or even a concerned family member, such as a brother or sister, may apply for an FMPO with permission if the victim is not in a position to do so.
Not only can the courts provide protection and legal remedies, there is a growing number of organisations who can support individuals who are forced to turn their back upon their families and leave the community they have grown up in – a huge and enormously difficult step to take.
Cases are varied, intricate and fraught with legal complexities and family struggles. They are rarely single-issue cases and are often complex multi-jurisdictional ones. There have only been three successful prosecutions so far.
The classic scenario of forced marriage is where a person is tricked into going abroad – sometimes, because their behaviour is seen as culturally unacceptable, for example, in the case of unruly or promiscuous teenagers. Marriage is seen as the cure. In some cases, when they arrive in the foreign country, that person’s passport may be taken from them, they may have no access to a phone or to money, or even be unable to speak the local language, and they may be told they cannot return to the UK until they agree to the match.
Civil forced marriage protections orders are made by the Family Court. Injunctive relief is available on a protective basis as orders can be made against perpetrators, based here or abroad, to prevent someone being taken overseas against their will. They can be also be used to secure the return of individuals who are stranded without their passport or money. A breach of the FMPO is a criminal offence.
However, many cases do not end there. The victim may end up being made to sponsor their spouse to enter this country, which is the last thing they want. Sometimes the forced marriage is not revealed until that spouse has successfully entered the UK, and a pattern of abuse results.
What if the forced marriage results in a child?
The FMPO may end up running alongside care proceedings, which can throw up yet more issues. Are grandparents, who may be responsible for the forced marriage, suitable candidates to care for the baby if the mother or father cannot?
Individuals who cannot consent to marry due to learning disabilities or an after-acquired brain injury, may also be at risk of or have entered into a forced marriage. A person aged 16 or above should be the subject of an application to the Court of Protection if his or her capacity is in doubt.
However, what if a person lacks capacity, yet genuinely wishes to marry, having fallen in love? Should that person’s entitlement to marry and start a family not be respected? Love and marriage are, after all, aspirations for learning-disabled people too. Nevertheless, if they lack capacity, it is regarded in law as a forced marriage. This can be seen as an emotive and offensive label for those involved.
Although the Mental Capacity Act 2005 lays down a marker that there is a presumption of capacity, the capacity of such an individual may need to be evaluated, usually by an expert assessment, within the Court of Protection.
This can be a shock for well-meaning parents from a different cultural background, who thought they were securing the future of their adult learning-disabled child by arranging for a life-partner – yet now the authorities are involved, and the court has made an FMPO out of the blue.
The parents may find their lawyer explaining to them that for their child, who is a fully-grown adult, sexual relations with their spouse is unlawful. They should never have had sex because they could not consent in law, so the relationship is regarded as abusive and even exploitative. The marriage may ultimately end up being declared invalid or not recognised within the jurisdiction of England and Wales. This is likely to be deeply shameful within the community and stigmatising for the person to be protected by the FMPO.
Cases of borderline or fluctuating capacity can throw up further challenges for professionals. The Mental Capacity Act 2005 enshrines the legal principle that steps must be taken to enable an individual to become capacitous: local authorities and health authorities are obliged to consider whether they should organise a programme of educative work to teach the individual who lacks capacity about marriage and sexual matters (sex being an essential component of the marriage contract under UK law) in order to improve their capacity.
A union resulting in a child born to a learning-disabled parent who lacks capacity may therefore result in as many as five sets of legal proceedings. Potentially, these could run in parallel as follows:
- FMPOs – for protective and injunctive relief
- Court of Protection – to determine capacity and best interests if an individual lacks capacity
- Care proceedings – to protect a child or young person who is at risk or who has been exposed to a forced marriage – or a baby born from a forced marriage – or even both.
- An application pursuant to the inherent jurisdiction of the High Court to declare that the marriage is not recognised within England and Wales.
- Criminal proceedings against those responsible for the forced marriage.
Why have there been so few successful criminal convictions? Is the criminal law serving its purpose? What about spouses who knowingly participate in the forcing, or who deliberately marry someone who is learning-disabled purely to secure the right to live and work in the UK?
The criminal law sends out an important message that forced marriage is an illegal practice, but the reality is that most victims do not want their family members to go to prison, they just want to get out of the situation. Breaches of FMPOs are known to take place but are rarely prosecuted.
Finally, there is a growing campaign to increase the age of consent to marriage. In the UK this is set at 18, or 16 with parental consent. The latter gives some parents the impression they are entitled to make the decision on behalf of their children. To raise the age of consent to 18 would send out the clear message that it is not a parental decision at all – but would arguably run contrary to the increase in autonomy we have seen for young people over recent years in other areas of the common law, and would also lead to anomalies in the law of consent for sexual intercourse and the law for marriage. How to square the circle?
Forced marriage cases are complex and throw up legal, ethical and cultural challenges throughout but in discussing them, and pursuing legal remedies, we continue to reinforce the fact that such marriages are illegal.
Adreeja Chatterjee, Barrister, No5 Barristers Chambers and author of A Practical Guide to the Law of Forced and Incapacitous marriages, which looks at forced marriages in the Family and Criminal Courts and within the Court of Protection, providing practical, hands-on guidance for this fascinating and important area of work.