Until relatively recently, forced marriage was not a specific criminal offence, nor were there protective measures within the civil courts to prevent forced marriage. Forced marriage was considered under the criminal law by way of offences such as abduction and offences of violence. However, the law governing these offences was paternalistic; the requirement being that a girl should be taken out of the possession of her parent or guardian against her will.
On 26th July 2007, the Forced Marriage (Civil Protection) Act (FMCPA) received Royal Assent as Part 4A of the Family Law Act 1996 and it was implemented on 25 November 2008. The aim of this legislation was to provide civil remedies for those faced with forced marriage. It was hoped that in using civil, rather than criminal law provisions the Act would encourage victims to seek protection because it would not involve reporting family members to the police.
The FMCPA expressly prohibits the practice, inducement, or aiding of forced marriage, which is defined as: “forcing, or attempting to force, another person to enter into a marriage, or a purported marriage, without that other person’s free and full consent, or practicing deception for the purpose of causing another person to enter into a marriage, or a purported marriage, without that other person’s free and full consent.”
Section 63A FMCPA enables the courts in England and Wales to make forced marriage protection orders (FMPOs). FMPOs are injunctions made by a court to prohibit persons from performing particular acts that might lead to a named individual being forced into marriage. FMPOs are detailed and case-specific. They may last for a specified period of time or effectively be indefinite.
Critically, through FMPOs, the FMCPA makes it possible for people at risk of forced marriage to make applications prior to a forced marriage taking place. This was a significant development in the law, as the previous legislation under the criminal law failed to address the importance of affording protection to prevent forced marriages, as opposed to merely dealing with cases after the event. Even when a forced marriage has already taken place, courts can make FMPOs to protect victims and/or remove them from their current situation.
As victims of forced marriage may be unable to protect themselves, the FMCPA enables others to apply for an FMPO on behalf of a victim, provided that the Applicant obtains the permission of the court. In addition, the FMCPA allows ‘relevant third parties’ to apply for an FMPO without obtaining the permission of the court; such as Local Authorities and the police.
When exercising its powers under FMCPA, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected (s.63A(2)) and must have regard to the victim’s wishes and feelings, as far as it is possible to ascertain them (s.63A(3)).
The court can also make an application in other family proceedings (s.63c(6)) if the court considers a forced marriage protection order should be made to protect a person (whether or not a party to the current proceedings); and if a person who would be a Respondent to any such proceedings for a forced marriage protection order is a party to the current proceedings.
Applications for FMPO’s may also be made on an Ex Parte basis. In such cases, the application should be allocated to the first available judge of the Family Court. However, not all courts have the jurisdiction to consider applications for FMPO’s as specialist knowledge is required.
Further, on 16th June 2014 the Government introduced new criminal offences relating to forced marriage under Section 120/121 of the Anti-Social Behaviour, Crime and Policing Act 2014. Forcing someone to marry now carries a maximum penalty of seven years imprisonment, while breaching the terms of the civil law FMPO has become a criminal offence carrying a maximum penalty of five years in prison.
