Forced Marriage: A Violation of Human Rights

Part – 6

Domestic Violence Remedies

The Civil Law Protections:

The Working Group has found that the existing legal framework affords a great deal of protection to children at risk of being forced into a marriage, above and beyond the civil and criminal legal measures available to protect adults from a forced marriage.

The law on the validity of marriages entered into before the age of 16 is governed under the Matrimonial Causes Act 1973, along with the Marriage Act 1949 (as amended) in England and Wales. The effect of which is to declare the marriage as void at law. A marriage is only considered valid when conducted at or after the age of 16.

Section 3 of the Marriage Act 1949 requires persons between the ages of 16 to 21 to obtain consent from their parents or guardians in order for their marriage to take place. Furthermore, there is a range of common law and statutory civil powers that the courts can exercise to protect children who are being forced into marriage, including the Children Act 1989, and the Education Act 1996.

Under s.17 of the Children Act, local authorities have a general duty to safeguard and promote the welfare of children within their local area who are in need, and to promote the upbringing of such children by their families by providing a range of services appropriate to the children’s needs. It can be proposed that children who are at risk of being forced into a marriage fall within this category.

Under s.31 of the Act, care and protection orders can be made by the courts to place a child under the age of 17 under the care of a local authority. The child then cannot be removed from the UK by anyone, without the consent of every person with parental responsibility over that child. This includes the local authority. Airport Police have successfully utilised the s.44 Children Act Emergency Protection Order provision to prevent a child being removed from the UK for the intention of a forced marriage. Legally, it is a necessary requirement for all children of compulsory school age (5-16) to receive suitable education. Parents have the responsibility of ensuring this happens, either by registering the child at school or by arranging an effective alternative to school.

The period of compulsory education ends when a child reaches age 16. Under this, children are protected from being forced to leave school by their parents and then taken abroad to be forced into marriage to someone of their parents’ choice.

Alternative methods of securing protection to victims:

An alternative way of offering protection and support to victims of a forced marriage is by way of application for an injunction. Part IV of the Family Law Act 1996 provides two main types of injunctions. The first is a non-molestation order. In order to ensure the health, well being and safety of the victim, the order prevents their partner or ex partner from using or threatening violence against them, or intimidating, harassing or pestering them. Breach of this will automatically constitute a criminal offence, without the need to show ‘significant harm’.

The second is the occupation order that regulates who can live in the family home, and can restrict the victim’s abuser from entering into the surrounding area. This can be applied for if the victim has left their home due to violence, but wishes to return and exclude their abuser.

The Criminal Law Offences:

The legal framework assisting forced marriages is routed in the history of using the criminal justice system to address domestic violence, as previously there was no law expressly recognising and prohibiting the practice. Where a forced marriage has, or is likely to occur, a scope of criminal offences were applied. For example, taking a child abroad for the purposes of forcing them into marriage has the parents charged with child abduction under the Child Protection Act 1984.

A parent guilty of this offence is liable for imprisonment of a term not exceeding six months, or a fine, or both. A parent, who is often the perpetrator of the offence, can also be charged with the common law offence of kidnapping under the Child Abduction Act 1984.

False Imprisonment charges may be pressed against the perpetrator if there has been confinement of the victim. Likewise, s.1 of the Children and Young Persons Act 1933 will apply for cruelty to persons under the age of 16, including neglect and abandonment.

An act by the perpetrator by which the victim apprehends the infliction of some immediate unlawful violence on them constitutes an assault, and where that unlawful violence is used on them, it will constitute a battery. The minor forms of this will constitute common assault. However, more serious cases of these may have the punishment of five years to lifetime sentence, depending on the seriousness of the violence used.

Where the victim is threatened to be killed, under s.16 of the Offences against the persons Act 1861, the perpetrator can be liable to a maximum penalty of ten years’ imprisonment. This may apply in many scenarios of forced marriages, as it is viewed as an honour crime, where this is likely to occur.

Further criminal law offences that offer increased security to victims of forced marriages, are harassment, child cruelty, blackmail, various sexual offences, theft (of passport) and public order offences, such as the offence of affray, where there is use or threat of unlawful violence causing a person to fear for their personal safety.

In any case, the “welfare of the child is of paramount consideration”. An honour killing case involved a Muslim child being given to foster parents for life, who were white, British and non-religious. The Muslim father claimed that the child should be given back to him as he did not wish for his son to be raised in a British, white and non-religious family. The Court of Appeal, however, stated that the child’s welfare was of paramount importance. If the child stayed with a Muslim family, he would continue to be under constant fear, with respect to the nature of the closely linked religious communities.