Local Government - November 2009
Forced marriages
In 2008, over 1600 incidents of suspected forced marriage were
reported to the Forced Marriage Unit, a section of the Foreign and
Commonwealth Office. A forced marriage occurs where:
‘One or both spouses do not (or, in the case of some adults with
learning or physical disabilities, cannot) consent to the marriage
and duress is involved. Duress can include physical, psychological,
financial, sexual and emotional pressure.’
Forced marriages understandably have a significant emotional
impact upon those forced into the marriage. The issue of forced
marriages is now subject to legislation; Forced Marriage (Civil
Protection) Act 2007. In some instances, forced marriages can lead
to serious physical harm and indeed there is currently an ongoing
criminal trial concerning the so called ‘honour killing’ of Tulay
Guler.
The 2007 Act allows the Courts to make an Order prohibiting a
forced marriage, to which a power of arrest may be attached. It
sets out the factors that must be considered. There must be an
application from the person concerned, from anyone else with the
leave of the court, or from a “relevant third party”, or there must
be related family proceedings. Under the Family Law Act1996 (Forced
Marriage) (Relevant Third Party) Order 2009 top tier and unitary
authorities local authorities are able to act as relevant third
parties with effect from 1 November 2009.
Many local authorities may not appreciate that they have a role
to play in this controversial and difficult topic. Clearly it may
come into play in connection with the discharge of child
protection, education and social care functions, but it is not
limited to this area of work, and the issue may arise for example
in the discharge of housing or community engagement functions.
There is a risk that it will fall down one of the
inter-departmental or inter-agency cracks.
In October 2009, the Ministry of Justice published ‘Forced
Marriage (Civil Protection) Act 2007: Guidance for Local
Authorities as Relevant Third Party and Information Relevant to
Multi-Agency Partnership Working.’ This is in addition to the
publication in June 2009 of revised guidance spanning 105 pages
entitled ‘Multi-Agency Practice Guidelines: Handling Cases of
Forced Marriage.’ The publication of the recent guidance is timely
as, from 1 November 2009, local authorities can make an application
on behalf of a victim without the need to seek the leave of the
court. In practical terms, this means the local authority need only
complete form FL401A to make an application for a Forced Marriage
Protection Order (FMPO) and no longer need to complete form FL430.
The revised version of form FL401A is available from the Courts
Service website.
Both guidance documents emphasise the importance of joint
working and adopting a multi agency approach. In addition, the
importance of applying a good dose of common sense and being alive
to the possibility of forced marriages as not just a theoretical
issue cannot be underestimated. Indeed, the multi agency guidance
stresses the importance of the ‘one chance rule’:
‘All practitioners working with victims of forced marriage and
honour-based violence need to be aware of the “one chance” rule.
That is, they may only have one chance to speak to a potential
victim and thus they may only have one chance to save a life. This
means that all practitioners working within statutory agencies need
to be aware of their responsibilities and obligations when they
come across forced marriage cases. If the victim is allowed to walk
out of the door without support being offered, that one chance
might be wasted.’
The October 2009 guidance is aimed at all caseworkers and legal
advisers who deal with safeguarding children and protecting
vulnerable adults. In addition, those working within education and
housing departments should also be made aware of the guidance.
The recently published guidance details possible warning signs
of forced marriage that people should be aware of and provides some
useful ‘do’s and don’ts’:
- ‘always take the issue seriously and recognise the potential
risk of very significant harm to the victim: many professionals
find it hard to believe the lengths that families go to in order to
force a marriage and that families do kill in the name of honour.
Young people are regularly told that an elderly relative is dying
in order to persuade them to leave the country;
- see them on their own in a private place where the conversation
cannot be overheard;
- gather as much information as possible about the victim – it
may be the only opportunity;
- remind them of their rights i.e. that they have the right to
enter into marriage with their full and free consent and the right
to make decisions about their lives; and
- discuss the case with the Forced Marriage Unit on 0207 008
0151
Do not:
- send the victim away and dismiss the allegation of forced
marriage as a domestic issue;
- inform the victim’s family, friends or members of the community
that the victim has sought help; or
- attempt to be a mediator (see sections 3.10 and 9.1 of the
multi-agency guidance on the dangers of family mediation).’
The guidance recommends that localised check lists are developed
for front line staff and that caseworkers should, in all cases of
potential forced marriages, speak to their legal departments in
order that the full range of legal remedies can be considered. In
addition, the guidance ‘strongly recommends’ that local authorities
forge links with local schools, health services, the police and the
voluntary sector so a local system for referrals, support and
response can be developed. Information sharing and referral
protocols need to be implemented between all the various
departments and agencies involved. The guidance also includes a
useful summary of how to make a Forced Marriage Protection Order
application, both with or without notice to the respondents and
lists the courts which have staff and judges specially trained to
deal with the applications.
The October guidance provides a useful abridged version of some
of the issues that need to be considered and the legal steps that
can be taken but should not be seen as shortcut for reading the
‘Multi-Agency Practice Guidelines: Handling Cases of Forced
Marriage.’ Local authorities need to take their role in preventing
forced marriages seriously and should not adopt a view that ‘it
doesn’t happen in our area’. Local authorities need to be alive to
the issue of forced marriages and the different contexts in which
they can appear, for example in relation to teenage girls/boys or
adults lacking capacity.
Catriona Sangster, Paralegal
Weightmans LLP