This article was first published by Solicitors Journal in June 2014, and is reproduced by kind permission. Click here to view the article.
A new law has come into effect in England and Wales this week which makes forced marriage a criminal offence. Courts have been able to issue civil orders to prevent forced marriage since 2008 but it will now be punishable by up to seven years in prison. Campaigners have argued that the new law could deter victims from coming forward as they would not want to see their family members imprisoned. So how will the new system work in practice and what are the implications of the new law?
A forced marriage is one in which one or both parties are married without full and free consent or against their will. There is likely to be physical or psychological pressure on the parties involved, including physical/ sexual violence or threats, or even financial abuse in some cases. Since 2005, victims, both within the UK and British nationals overseas, have been able to receive help from the Government’s Forced Marriage Unit which offers safety advice as well as access to professional support. In extreme circumstances, the unit has been able to help victims to prevent “reluctant sponsor” cases and to rescue victims held overseas against their will.
The new Anti-social Behaviour, Crime and Policing Act 2014 which came into effect this week has criminalised forced marriage which now carries a prison sentence of up to seven years. The legislation covers any religious or civil ceremony of marriage, whether or not legally binding. Moreover, in relation to a victim who lacks capacity to consent to marriage, the offence is capable of being committed by any conduct carried out for the purpose of causing the victim to enter into a marriage, whether or not such conduct amounts to violence, threats or any other coercion.
Many have argued that under the new law, people forced into marriage could feel deterred from making disclosures for fear of seeing their own family members sent to prison. The protected person, often a vulnerable child, will usually be operating amidst a mix of powerful familial pressures and will rarely want to institute committal proceedings against those closest to them. The Government has thus allowed for victims who have been forced to marry or threatened with it to still be able to opt for civil action through a forced marriage protection order through the family courts rather than criminal action. The breaching of forced marriage protection orders will now become a criminal offence resulting in a maximum penalty of up to five years in prison.
Third parties such as the police, relatives and voluntary organisations will also be able to apply for a forced marriage protection order on behalf of the victim. The new law comes after a number of cases, including last year’s Bedfordshire Police Constabulary v RU and FHS  EWHC 2350 (Fam), had revealed a stark gap in the protection offered to those at risk and raised the question of whether the regime was really equipped to handle the complex and widespread problem of forced marriage. In his judgment, Holman J stated that he “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.”
The nature of the crime means that many cases go unreported so there are likely to be challenges implementing the new law. It remains to be clarified how people with learning disabilities will be supported to make the choice to report a crime if they lack the capacity to do so. The Government may also wish to issue guidance to the police and other professionals on how to implement the new law in order to ensure the smooth running of the process.
Criminalising forced marriage is undoubtedly a huge step forward which will send a powerful message that this violation of human rights will not be tolerated. The flexibility of the new regime, which allows a choice between criminal or civil action, may encourage more victims to come forward however the outcomes are yet to be seen. Reporting the crime is only the first step and those working in the field will need to ensure victims receive as much support as possible throughout the legal process.