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Welcome to.. The National Conference on the criminalisation of Forced Marriage

Join us at the National Conference on the criminalisation of forced marriage, hosted by the Police and Crime Commissioner for Derbyshire in partnership with Karma Nirvana. Learn about the legal aspects, pros, and cons of this critical issue.

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Welcome to.. The National Conference on the criminalisation of Forced Marriage

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  1. Welcome to.. The National Conference on the criminalisation of Forced Marriage hosted by the Police and Crime Commissioner for Derbyshire in partnership with Karma Nirvana Tuesday 6 May 2014, 10am to 4pm

  2. Agenda

  3. Police and Crime Commissioner for Derbyshire Alan Charles The National Conference on the criminalisation of Forced Marriage

  4. Hardyal Dhindsa Deputy PCC for Derbyshire (Conference Chair) The National Conference on the criminalisation of Forced Marriage

  5. Video address Baroness Butler-Sloss Chair of the National Commission on Forced Marriage The National Conference on the criminalisation of Forced Marriage

  6. Anne-Marie Hutchinson OBE The National Conference on the criminalisation of Forced Marriage

  7. Forced Marriageas a Criminal Offence Anne-Marie Hutchinson OBE Partner at Dawson Cornwell Solicitors, London, England amh@dawsoncornwell.com Derbyshire Police and Karma Nirvana Tuesday 6 May 2014

  8. A look back… • Forcing someone to marry and breaching a Forced Marriage Protection Order will be a criminal offence in England as from 16 June 2014. So far, where there has been an actual or threatened Forced Marriage, a number of other offences may have been committed including kidnap and assault. In the majority of cases, victims sought civil remedies rather than a prosecution. • Back in June 2000 in the Home Office’s report, ‘A choice by right’ and in a further consultation in 2005 – the Government stated that it had no intention to criminalise forcing someone to marry.

  9. A look back… • Home Affairs Select Committee (HASC) published a report in May 2008 and a further report in May 2011. • Government voiced its commitment in October 2011 to criminalise the breach of Forced Marriage Civil Protection Orders and to consult on creating a specific criminal offence of forcing someone to marry. • Further consultation published in June 2012, ‘Forced Marriage – A Consultation: Summary of Responses’. • Now, a reminder of the arguments that were voiced for and against criminalisation…

  10. Criminalisation Pros • A new criminal offence could have a deterrent effect that would reduce the number of Forced Marriages. Robust sentencing would demonstrate that people are being brought to account for their actions in a public domain. • An offence would send a clear signal, both within the UK and outside its borders, that it is unacceptable to force a person to marry, that it is an action which society as a whole condemns and that there will be consequences for perpetuators. • It could also empower young people to challenge their parents and their wider family, as well as giving victims a stronger sense that being forced into marriage is wrong. • A specific offence would allow a perpetrator to be punished for his or her wrongdoing.

  11. Criminalisation Pros • A specific offence could make it easier for authorities such as the police, social and health services to identify when a victim has been or might be forced into marriage. Existing legislation may not be easily linked to Forced Marriage and professionals may see past any warning signs. • The existing combination of criminal statutes that could be applicable to perpetuators of Forced Marriage is confusing, leading to a lack of realisation that a crime may have been committed. • A specific offence would also clarify the issues for law enforcement bodies so that they are fully aware of when and how they should intervene, in turn making their role in Forced Marriage cases more effective.

  12. Criminalisation Cons • Victims may stop seeking help for fear either that their family members will be prosecuted or of the repercussions were the prosecution to fail. This fear could arise as a result of internal pressure (such as feelings of guilt), external pressure or both. • Victims may also be deterred from applying for a civil remedy for similar reasons. • Given the higher standard of proof required for criminal cases than in civil proceedings and the difficulties in securing evidence (for example, from a victim who does not wish to give evidence or where a Forced Marriage occurs abroad), there is a risk that there would be a significant number of failed prosecutions. • As a consequence, a succession of failed prosecutions might diminish confidence in the system from both the general public and victims’ perspectives.

  13. Criminalisation Cons • Victims may develop an understanding that any report made to a Government body, even those who only seek to protect victims, will result in a criminal investigation. This may reduce the possibility of victims coming forward for any ‘official’ assistance at all. • Rather than acting as a deterrent, perpetuators might avoid a prosecution by finding alternative ways to force their children to marry. Victims may be sent abroad at an earlier stage in their life and left in the destination country within a Forced Marriage. • A prosecution, or even the risk of a prosecution, may make it harder for victims to reconcile with family members later on, something which many victims wish to do.

  14. 2012 Consultation Should FM be a criminal offence?

  15. 2012 Consultation Issues • Deal with Forced Marriage more effectively to ensure that victims’ needs are being considered properly. • Improve training for professionals on the Government’s multi-agency practice guidelines and the civil remedies available to victims. • Clarify distinction between forced and arranged marriage to ensure that perpetuators do not hide behind misconceptions about what their culture and religion requires. • Provide more funding and support services, including refuges, for victims. • Increase the level of training and media campaigns, and promote more awareness in mainstream society, including in schools, about Forced Marriage. • Apply any measures to tackle Forced Marriage to all communities to prevent stigmatisation of a particular culture, religion or minority group.

  16. Government’s response “Having held a detailed consultation and listened carefully to all views, we have decided to make forcing someone to marry a criminal offence. In doing so, we are sending out a clear message that this practice is totally unacceptable and will not be tolerated. We do recognise the concerns raised by many that new criminal laws may deter reporting of forced marriage. We will therefore ensure that we work closely with partners to implement any legal change within the context of a broader strategy for encouraging a sensitive and appropriate response to all potential cases, which puts the victim centre stage.” The Government aimed to introduce a specific Forced Marriage offence in 2013 / 2014. The Government in the consultation also renewed its commitment to making the breach of a Forced Marriage Civil Protection Order a criminal offence.

  17. The (then) Anti-social Behaviour, Crime and Policing Bill Joint Committee on Human Rights (October 2013): “We cautiously accept the Government’s reasoning for the criminalisation of forced marriage. However, given the concerns expressed about criminalisation during the Government consultation process, it is clear that careful implementation and monitoring of the new law will be required. It is essential that criminalisation is accompanied by additional measures to ensure that the law is effectively implemented. There has not been a successful prosecution of female genital mutilation since it was criminalised 28 years ago, and it appears that the practice remains widespread, which demonstrates that criminalisation alone is not sufficient. We therefore recommend that: • the Crown Prosecution Service develops a strategy on prosecutions of forced marriage. In developing such a strategy, there should be consultation with relevant stakeholders; and • the Government reports to Parliament annually on the effectiveness of the criminalisation of forced marriage.”

  18. New Criminal Offences • The Anti-social Behaviour, Crime and Policing Act 2014 creates two new offences: • Breaching a Forced Marriage Protection Order without reasonable excuse. • Forcing someone to marry. • These will come into effect in England on 16 June 2014.

  19. Breach of Forced Marriage Protection Order • New crime of breaching a Forced Marriage Protection Order without reasonable excuse. • The provisions mirror the criminalisation of Non-molestation Orders. Breach of a Non-molestation Order has been a criminal offence since 1 July 2007, by virtue of section 42A Family Law Act 1996. Before then, like FMPOs, a breach was dealt with as a civil contempt only. • We will now compare the sections of the Family Law Act 1996 making the breach of a non-molestation order a criminal offence with the criminalisation of breaches of FMPO following the Anti-social Behaviour, Crime and Policing Act 2014.

  20. Breach of FMPO A comparison with Non-molestation orders Section 42A(1) of the Family Law Act 1996 A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence. Section 120 of the Anti-social Behaviour, Crime and Policing Act 2014 inserts: Section 63CA(1) of the Family Law Act 1996 A person who without reasonable excuse does anything that the person is prohibited from doing by a forced marriage protection order is guilty of an offence. Note in each case the defence of having a reasonable excuse.

  21. Breach of FMPO A comparison with Non-molestation orders Section 42A(2) of the Family Law Act 1996 In the case of a non-molestation order made by virtue of section 45(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order. Section 120 of the Anti-social Behaviour, Crime and Policing Act 2014 inserts: Section 63CA(2) of the Family Law Act 1996 In the case of a forced marriage protection order made by virtue of section 63D(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when the person was aware of the existence of the order.

  22. Breach of FMPO A comparison with Non-molestation orders Section 42A(5) of the Family Law Act 1996 A person guilty of an offence under this section is liable – (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both; (b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both. Section 120 of the Anti-social Behaviour, Crime and Policing Act 2014 inserts: Section 63CA(5) of the Family Law Act 1996 A person guilty of an offence under this section is liable– (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both; (b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.

  23. Breach of FMPO Interplay with civil law • To avoid a perpetuator being punished twice, the 2014 Act provides that a perpetuator would not be treated as being in contempt of court where there has already been a conviction of breaching a FMPO (s. 63CA(3)). • The reverse is also true: a perpetuator cannot be convicted of a criminal offence if that conduct has already been punished as a contempt of court (s. 63CA(4)). • Could this put pressure on victims to discontinue or avoid contempt proceedings in the public interest? • There is a concern that the CPS may proceed with a prosecution without a victim’s consent.

  24. Breach of FMPO Interplay with civil law • Worth noting the CPS’s comments in relation to breaches of Non-molestation Orders found in the CPS Policy for Prosecuting Cases of Domestic Violence, March 2009: “The CPS is responsible for prosecuting the breach of such orders where the victim calls the police and chooses to have the breach dealt with in the criminal courts. The CPS will not be able to prosecute the breach if it has already been dealt with as a contempt of court. However, if the CPS decides not to prosecute, or if the offender is prosecuted but found not guilty, the victim may still ask a civil court to deal with the breach as a contempt of court. The CPS may still prosecute where the victim is taking other action in the civil courts.” (Pages 35 – 36)

  25. Anti-social Behaviour, Crime and Policing Act 2014 Full text: Breach of FMPO 63CA Offence of breaching order [to be inserted into the Family Law Act 1996] (1) A person who without reasonable excuse does anything that the person is prohibited from doing by a forced marriage protection order is guilty of an offence. (2) In the case of a forced marriage protection order made by virtue of section 63D(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when the person was aware of the existence of the order. (3) Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court. (4) A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court.

  26. Anti-social Behaviour, Crime and Policing Act 2014 Full text: Breach of FMPO (5)     A person guilty of an offence under this section is liable – (a)     on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both; (b)     on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both. (6) A reference in any enactment to proceedings under this Part, or to an order under this Part, does not include a reference to proceedings for an offence under this section or to an order made in proceedings for such an offence. (7) “Enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.”

  27. FMPO Undertakings • An undertaking is a promise to the court that, if broken, is a contempt of court that may lead to imprisonment of a maximum of two years. It is not a criminal offence to breach an undertaking. • It is often used in domestic violence cases where a victim seems a civil injunction (such as a Non-molestation Order or an Occupation Order) against an abuser. • The abuser will confirm: ‘I understand the undertaking that I have given, and that if I break any of my promises to the court I may be sent to prison for contempt of court’. • The new s. 63CA that will be inserted into the Family Law Act 1996 contains provisions that are similar (though not identical) to the provision on undertakings with respect to Non-Molestation and Occupation Orders (s. 46 FLA 1996). Both s. 63CA and s. 46 cite situations where an undertaking will not be appropriate.

  28. FMPO Undertakings To replace subsections (1) to (3) of section 63E FLA 1996 – (1) In any case where the court has power to make a forced marriage protection order, the court may accept an undertaking from the respondent instead of making the order. (2) But a court may not accept an undertaking under subsection (1) if it appears to the court – (a) that the respondent has used or threatened violence against the person to be protected, and (b) that, for the person's protection, it is necessary to make a forced marriage protection order so that any breach of it by the respondent may be punishable under section 63CA.

  29. Offence of Forced Marriage England and Wales • New offence of forcing someone into marriage is split into two distinct limbs: • Using violence, threats or any other form of coercion (unless where the victim lacks capacity, in which case any conduct will suffice) to cause someone to marry. • Deceiving someone with the intention of causing a person to leave the UK to be forced into marriage. • Both offences can be found in the Anti-social Behaviour, Crime and Policing Act 2014. They both attract a maximum sentence of 7 years’ imprisonment. • There are jurisdictional requirements for the offence to be committed – either the victim or the perpetuator must be a UK national, or be presentor habitually resident in England or Wales.

  30. Anti-social Behaviour, Crime and Policing Act 2014 Forcing a person to marry under s. 121(1) 121 Offence of forced marriage: England and Wales (1) A person commits an offence under the law of England and Wales if he or she- (a) uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and (b) believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent. (2) In relation to a victim who lacks capacity to consent to marriage, the offence under subsection (1) 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 the conduct amounts to violence, threats or any other form coercion).

  31. Anti-social Behaviour, Crime and Policing Act 2014 Practising deception under s. 121(3) (3) A person commits an offence under the law of England and Wales if he or she- (a) practises any form of deception with the intention of causing another person to leave the United Kingdom, and (b) intends the other person to be subjected to conduct outside the United Kingdom that is an offence under subsection (1) or would be an offence under that subsection if the victim were in England or Wales.

  32. Anti-social Behaviour, Crime and Policing Act 2014 Other provisions (4)     “Marriage” means any religious or civil ceremony of marriage (whether or not legally binding). (5)     “Lacks capacity” means lacks capacity within the meaning of the Mental Capacity Act 2005. (6)     It is irrelevant whether the conduct mentioned in paragraph (a) of subsection (1) is directed at the victim of the offence under that subsection or another person. (7)     A person commits an offence under subsection (1) or (3) only if, at the time of the conduct or deception – (a)     the person or the victim or both of them are in England or Wales, (b)     neither the person nor the victim is in England or Wales but at least one of them is habitually resident in England and Wales, or (c)     neither the person nor the victim is in the United Kingdom but at least one of them is a UK national.

  33. Anti-social Behaviour, Crime and Policing Act 2014 Other provisions (8) “UK national” means an individual who is – (a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen; (b) a person who under the British Nationality Act 1981 is a British subject; or (c) a British protected person within the meaning of that Act. (9) A person guilty of an offence under this section is liable – (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 7 years. (10) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference to 12 months in subsection (9)(a) is to be read as a reference to six months.

  34. Some potential difficulties • Distinguishing between an arranged marriage and a forced marriage is rarely straightforward.Persuasing and encouraging someone to marry may become duress if the victim does not give full and free consent, but it is often not clear. • Munby J warned in A Local Authority v N [2005] EWHC 2956 that courts should not make the assumption that an arranged marriage is a forced marriage. Munby J added that the courts must be alert to the religious, social and cultural circumstances of each case. • The Government in the ‘Multi-agency practice guidelines: Handling cases of Forced Marriage’ (2009) stated that a forced marriage occurs where duress is involved, and that duress can include physical, psychological, financial, sexual and emotional pressure. • Compare this to s. 121 above which refers to ‘violence, threats or any other form of coercion’. Does emotional pressure equate to coercion? What if a parent says to their child, ‘I really think you should marry him / her, we’d be disappointed if you don’t.’?

  35. Some potential difficulties • Pressure to marry can result from a wide range of complex factors such as immigration concerns or economic difficulties. Is it straightforward to extract from the various factors playing on a victim’s mind the pressure which is placed on them by a defendant? • A person commits an offence under s. 121(1) if he or she believes, or ought reasonably to believe, that the conduct may cause the other person to enter a marriage without consent. • But how is ‘reasonableness’ to be measured? Are we talking about the reasonable person living within a certain sub-culture or community or the public at large? Is there a risk of marginalising sub-cultures by imposing standards of the ‘reasonable person’ living outside that culture? Is the average person able to fully understand the distinction between arranged and forced marriages? • Some argue that the new offence marginalises minority communities, others argue that it protects them. The graph on the following slide shows the country of origin in relation to cases dealt with by the Forced Marriage Unit in 2012.

  36. FMU Statistics: 2012

  37. Other matters…

  38. Istanbul Convention • Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) – UK signed the Convention on 8 June 2012 but has not yet ratified it. • As at 10 April 2014, 8 States have ratified the Convention – Albania, Austria, Bosnia and Herzegovina, Italy, Montenegro, Portugal, Serbia, Turkey. 25 States have signed the Convention but have not ratified it. • “A majority were in favour of the creation of a new offence and the Government concluded that criminal offences were necessary, in addition to the civil regime, to act as an effective deterrent, to properly punish perpetrators, and to fulfil the United Kingdom’s international obligations under the Istanbul Convention signed in 2012.” (Explanatory Notes from the House of Commons on 16 October 2013 regarding the (then) Bill, at para. 33.)

  39. Istanbul Convention Article 37 – Forced marriage 1 Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of forcing an adult or a child to enter into a marriage is criminalised. 2 Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of luring an adult or a child to the territory of a Party or State other than the one she or he resides in with the purpose of forcing this adult or child to enter into a marriage is criminalised. For the full Convention, see: http://www.coe.int/t/dghl/standardsetting/convention-violence/convention/Convention%20210%20English.pdf.

  40. June 2012, ‘Forced Marriage – A Consultation: Summary of Responses’ European countries criminalising Forced Marriage

  41. European countries criminalising FM Source: 2012 Consultation at pages 20 and 21 – Austria Forcing someone into marriage is a distinct criminal offence in Austria. Austrians and people living in Austria are facing legal consequences for such actions only if this kind of marriage occurs within the country’s borders. From January 2012 the Federal Government has amended the anti-forced marriage law to allow prosecutors to press charges against perpetrators over forced marriages abroad. Belgium Forcing someone to marry is a criminal offence. Cyprus Forcing someone to marry is a distinct criminal offence in Cyprus.

  42. European countries criminalising FM Denmark The Danish Criminal Code includes an offence of unlawful coercion, prohibiting the use of threats by a person to force another person to do something against their will. This offence would apply to marriage if threats were used to force a person into marriage against their will. The penalty for this offence ranges from a fine to a period of imprisonment not exceeding two years. Germany Forcing someone to marry is a distinct criminal offence and can be punished by up to five years in prison. The law also gives non-German citizens who are forced by their husbands/families to leave the country after their marriage a legal right to return to Germany. Malta Forced Marriage is illegal in Malta – marriage of convenience is also an offence punishable by imprisonment.

  43. Scotland • Unlike England and Wales, it was already a criminal offence to breach a Forced Marriage Protection Order, resulting in a maximum prison sentence of 2 years (and/or a fine). • The Scottish Parliament voted ‘overwhelmingly’ to make forcing someone to marry a criminal offence. • In terms of the Istanbul Convention, discussed above, Minister for Equalities Shona Robison said that: “The Istanbul Convention was, in effect, a game changer. We know that violence against women stakeholders are very keen for the Istanbul Convention to be ratified, and we want Scotland to be compliant. Criminalising forced marriage was therefore necessary to achieve this.” (See http://news.scotland.gov.uk/News/Forced-marriage-889.aspx.)

  44. Scotland • Emphasised the suggestion that the criminalisation of forcing someone to marry can influence cultural change. • In terms of it deterring victims from coming forward, Mark Ballard, Head of Policy Barnardo’s Scotland stated in their written submission to the Justice Committee in December 2013 that: “Additionally, as with other forms of abuse, victims may be unwilling to come forwards and may even feel as though they do not want the perpetrator punished by a criminal sanction. However, we do feel that by criminalising the act itself we will begin to shift perceptions and start the drive towards cultural change that is needed to stamp out forced marriage in Scotland.” Source: http://news.scotland.gov.uk/News/Forced-marriage-889.aspx.

  45. Anne-Marie Hutchinson OBE Partner at Dawson Cornwell Solicitors, London, England amh@dawsoncornwell.com 15 Red Lion Square, London, WC1R 4QT, England +44 (0)20 7242 2556 www.dawsoncornwell.com

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