Forced Marriage Practitioner Guidance - update 2014

Key practice messages

Always remember the 'one chance' rule: you may only have one chance to speak to a potential victim of forced marriage and, therefore, only one chance to save a life.

About forced marriage

• Forced marriage is an indefensible practice that is recognised across the UK as a form of violence against women and men, domestic abuse and, when children are involved, child abuse
• Under the Anti-Social Behaviour, Crime and Policing Act 2014, forcing someone into marriage is a criminal offence in Scotland
• Forced marriage is also a criminal offence in England and Wales under the same Act
• This Act provides an additional layer of protection to victims from a practice that is not only a fundamental breach of human rights, but is also often accompanied by physical, psychological, financial, sexual and emotional abuse
• Everyone has a right to enter into marriage with their full and free consent and to make decisions about their lives
• A forced marriage is a marriage in which one or both spouses do not (or, in the case of children/young people/adults at risk, cannot) consent to the marriage and coercion is involved. Coercion can include physical, psychological, financial, sexual and emotional pressure, threatening conduct, harassment, threat of blackmail, use of deception and other means. It is also 'force' to knowingly take advantage of a person's incapacity to consent to marriage or to understand the nature of the marriage. Coercion may be from parents, other family members and the wider community
• Forced marriage is a form of gender-based violence and, when children are involved, child abuse. It is associated with other forms of domestic abuse and 'honour-based' violence
• Forced marriage can also be associated with human trafficking. Human trafficking involves moving, harbouring, transferring or receiving individuals using duress or deception for the purposes of exploitation. A forced marriage can be classified as exploitation if certain conditions are met. For instance, in the UK, children have been forced into marriage and trafficked to maintain family ties, improve a family's economic position and for spouses to gain permanent residence in the UK. A forced marriage can also be the result of trafficking, with victims forced into 'servile' marriages and related exploitation, for example being used as unpaid and forced labour

Guidance and information on human trafficking can be found at:

http://www.saferglasgow.com/what-we-do/support-services-for-victims/support-to-victims-of-human-trafficking.aspx

http://sigbi.org/scotland-south/files/2013/11/TARA-info-leaflet-2013.pdf

• Forced marriage is different to arranged marriage in which the families of both spouses take a leading role in arranging the marriage but the prospective spouses have the choice whether or not to accept the arrangement. This tradition has existed successfully in many communities and countries for a very long time. But if the spouse changes their mind and is forced to go ahead with the marriage, it is considered a forced marriage
• Women are usually the victims of forced marriage but men can be victims too. People with physical and learning disabilities may be forced into marriage by families wanting to ensure their long-term care. These guidelines provide information relevant to practitioners assisting victims of all sexual orientations or gender identities, including non-binary identities. If an individual discloses that they are transgender, they should be treated as the gender with which they identify.
• Victims are under enormous cultural pressure to conform to the wishes of family and community. This is often accompanied by severe physical, emotional and sexual abuse. It is not uncommon for victims to be killed (so-called 'honour' killing) or to commit suicide
• The circumstances of forced marriage are such that victims may remain with or return to families and communities or not be able to follow through on actions. This is not a failure on their part. Stress to victims that your service is always available to them

Legal context

• Forced marriage is an abuse of children's rights under the UN Convention on the Rights of the Child. It is also an abuse of the basic human rights of children, young people and adults, as set out in the European Convention on Human Rights and is directly contrary to the domestic laws of Scotland and the other UK countries
• Forcing someone to marry or taking advantage of their lack of understanding to trick them into taking part in a marriage is against the law in Scotland; so too is taking someone away from Scotland, against their will, to be married elsewhere. There may be associated criminal activities such as abduction; physical abuse; and threats
• The law in Scotland provides both civil and criminal protection
• Forced Marriage Protection Orders (under the Forced Marriage etc. (Protection and Jurisdiction)(Scotland) Act 2011) (referred to throughout this document as the 'Forced Marriage Act') aim to protect people who are threatened with, or who are already in, a forced marriage; the person at risk can apply for these, or third parties can apply on a victim's behalf
• Section 121 of the Anti-Social Behaviour Crime and Policing Act 2014, (referred to throughout this document as 'the 2014 Act'), makes forcing someone to marry a criminal offence in England and Wales
• There are complexities associated with factors such as immigration status; nationality; dual nationality and whether the victim is in Scotland, elsewhere in the UK or overseas. These complexities affect how you can assist victims

Focus on safety and protection

• Forced marriage affects people from many communities and cultures. It is important to use your existing structures, policies and procedures for safeguarding children; adults with support needs; and victims of domestic abuse. For children under 18, refer to social work services. They will implement the correct protection procedures depending on the specific circumstances
• Always focus on the safety and protection of victims and avoid contributing to risk
• Listen carefully to the concerns of the victim, understand the circumstances which have brought them to you, and explain their options
• Always take the issue and the concerns of the victim seriously and recognise the potential risk of very significant harm: many practitioners underestimate, or 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'
• Never attempt family counselling, mediation, arbitration and reconciliation if forced marriage is an issue because this can put victim(s) at further risk
• Never share information with family/friends/community members; and, if sharing information with other practitioners in your own or other agencies, only do so if necessary to protect victims
• Always store information about the case securely, with restricted access and in compliance with record management procedures
• Remember that family/community members may work in your agency
• Remember that a victim's life may be at stake
• Remember that under the Forced Marriage Act, a Forced Marriage Protection Order (FMPO) can be sought. The terms of orders issued under the Act can be tailored to meet the specific needs of victims. Criminalising forced marriage added an additional offence. Each case is different and may require a different approach
• An FMPO may run in tandem with criminal investigation/proceedings. Whilst a victim may not wish criminal proceedings to go ahead, the COPFS Prosecution Code sets out the decision-making process which the Crown follows when it receives a report of a criminal offence. It sets out both the evidential and the public interest considerations relevant to decision making. Appendix at section 24 sets out COPFS objectives and considerations in making decisions
• The consent of the victim is not a prerequisite for criminal proceedings. The views of the victim are one factor for prosecutors to consider when deciding whether to initiate or continue with criminal proceedings in a case. However, prosecutors have a duty to make decisions based on the wider public interest
• Remember, if you or your organisation are unsure about how best to respond, to ask for advice