Forced Marriage Practitioner Guidance - update 2014

Section 1: Background information

'Marriage shall be entered into only with the free and full consent of the intending spouses.' Universal Declaration of Human Rights, Article 16(2)

1. Background

2. Advice and assistance for victims and practitioners

3. Definitions

1. Background

Legislation

The legislation making forced marriage an offence in Scotland is contained in section 122 of the Anti-social Behaviour, Crime and Policing Act 2014 which came into effect in Scotland on 30 September 2014:

www.legislation.gov.uk/ukpga/2014/12/pdfs/ukpga_20140012_en.pdf

The 2014 Act states that:

1. A person commits an offence under the law of Scotland 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 is incapable of consenting to marriage by reason of mental disorder, 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).

3. A person commits an offence under the law of Scotland 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 Scotland.

4. 'Marriage' means any religious or civil ceremony of marriage (whether or not legally binding).

5. 'Mental disorder' has the meaning given by section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

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 Scotland,
(b) neither the person nor the victim is in Scotland but at least one of them is habitually resident in Scotland, or
(c) neither the person nor the victim is in the United Kingdom but at least one of them is a UK national.

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 not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine or both.

Section 121 of the Act introduced a similar offence for England and Wales. Forcing someone to marry is a specific criminal offence across the UK: www.legislation.gov.uk/ukpga/2014/12/section/121/enacted

Other general offences

Although forced marriage is a specific criminal offence, there are also other general offences which may be committed when a person is being forced into marriage

Perpetrators, usually parents or family members, could also be prosecuted for offences including stalking, threatening and abusive behaviour, assault, kidnap, abduction, theft (of passport), threats to kill, imprisonment and murder. Sexual intercourse without consent is rape, regardless of whether this occurs within a marriage. Criminalisation did not remove these offences, and concerns/reports of forced marriage should be looked at with the 'big picture' in mind.

Forced Marriage Protection Orders (FMPOs) can also be sought under the Forced Marriage Act in addition to any investigation or proceedings for criminal offences. The Forced Marriage Act makes provision for protecting both children and adults at risk of being forced into marriage and offers protection for those who have already been forced into marriage. The terms of orders issued under the Forced Marriage Act can be tailored to meet the specific needs of victims.

The Forced Marriage Act can be read in full online at www.legislation.gov.uk/asp/2011/15/pdfs/asp_20110015_en.pdf

Some forced marriages are legally valid until they are annulled or a divorce is granted by the court. Others are not legally valid but may also need to be annulled.

There are strict legal requirements governing whether a marriage is valid under Scots civil law, and across the UK generally. The rules for recognising a marriage vary depending on which country the marriage took place. When considering the validity of a marriage, particularly a marriage which took place overseas, you should seek specialist legal advice. Although agencies should not assume that a marriage is invalid because it was forced, this will usually be the case. Additional difficulties can arise if the victim cannot provide a marriage certificate.

Guidance

The Scottish Government has produced the following guidance for practitioners in the statutory and third sectors, public authorities and legal professionals:

1. Multi-agency practice guidelines, updated 2014

2. Statutory guidance: the Scottish Government published forced marriage statutory guidance under section 11 of the Forced Marriage Act. The statutory guidance sets out the responsibilities of chief executives, directors and senior managers within public bodies and partnerships involved with handling cases of forced marriage. It covers roles and responsibilities, accountability, training, inter-agency working and information sharing, risk assessment and record keeping. This guidance was updated in 2014, available at: http://www.scotland.gov.uk/forcedmarriageupdate2014

3. Guidance for legal professionals

Aims of the multi-agency practice guidelines

These practice guidelines aim to inform frontline practitioners who are responsible for protecting children and adults from the abuse associated with forced marriage.

You should use existing structures, policies and procedures designed to protect children, adults at risk and those experiencing domestic abuse. But, in doing so, you must be mindful of the specific risks associated with forced marriage. Risks to victims may be increased by all forms of family counselling, mediation, arbitration and conciliation; by failing to share or store information appropriately or safely; by involving families; and by breaches of confidentiality.

When supporting victims generally or in supporting them to obtain an FMPO, you should also consider your role in gathering evidence to support any prosecutions under the 2014 Act.

Given the nature of forced marriage, no single agency can meet all the needs of someone affected by forced marriage. These practice guidelines, therefore, aim to encourage practitioners to work together safely to protect victims. This approach is also consistent with the Scottish Government's emphasis on a multi-agency response to tackling domestic abuse/violence against women and responding to children and adults at risk of harm.

There are multi-agency partnerships in all local authority areas to tackle violence against women. They are a good source of information and support for multi-agency working on these issues. Other relevant partnerships include Community Planning; Community Safety; Multi-Agency Risk Assessment Conferences; Multi-Agency Public Protection Arrangements; Multi Agency Tasking and Coordinating (MATAC) meetings; Child Protection and Adult Protection Committees.

Who the multi-agency practice guidelines are for

These guidelines are for all frontline staff and volunteers within agencies which are likely to come across adults or children and young people threatened with or in a forced marriage.

Chapters 15 to 20 are specifically aimed at those working within health, education, police, child protection, adult support and protection and housing. However, these sections and the rest of the document will be of interest to a wide range of practitioners including Registrars, Children's Reporters, solicitors and those working in voluntary organisations.

The guidelines have been adapted from materials already developed by the UK Forced Marriage Unit (FMU) (see section 2). A Scottish Government reference group representing statutory and voluntary organisations has contributed to ensure that they are relevant to practitioners in the Scottish context.

Status of the multi-agency practice guidelines

This document complements the statutory guidance.

The guidelines fit with the Scottish Government's commitment to tackling domestic abuse and all forms of violence against women^[2]. Forced marriage is a form of domestic abuse and should be treated as such. Ignoring the needs of and risks to victims is potentially dangerous and would be viewed as a breach of professional responsibility.

Terminology: male/female victims

See Definitions.

Given prevalence rates (82% of cases referred to the Forced Marriage Unit in 2013 involved women) and the fact that the consequences are different for women and men, the guidelines refer to victims of forced marriage as 'women' and focus mainly on women's needs which are different from those of men. This is in no way intended to diminish the experience of, or risks posed to, those who do not identify as women.

Much of the guidance applies to any individual facing forced marriage and everyone should be given the same level of assistance and respect when they seek help. For more information on supporting male victims see the Men's Advice Line at www.respect.uk.net/pages/male-victims-of-forced-marriage.html

LGBT^[3] people experiencing forced marriage may find it difficult to seek support as a result of fearing a homophobic, biphobic or transphobic response from relatives, communities and services. Additionally it can be difficult for GBT men^[4] to speak out about the forms of gender-based violence they face due to the pressures of masculinity and stereotypes.

Findings from research suggest that forced marriage involving people with learning disabilities may occur at a similar rate for men and women, although the consequences are still likely to affect women disproportionately. More information on this is at www.fco.gov.uk/forcedmarriage

Reducing harm

The guidelines focus on specific areas where practitioners may inadvertently endanger a victim and set out what practitioners can do, both individually and in partnership with other agencies, to reduce harm.

The UK context

Most of the legislation, policies and procedures referred to in these guidelines are relevant to devolved matters which are the responsibility of the Scottish Government. However, key aspects, notably immigration affairs, no recourse to public funds (see section 14) and nationality are reserved matters (i.e. UK-wide) and, consequently, the responsibility of the UK Government. Immigration affairs are dealt with by the Home Office UK Visas and Immigration (UKVI) www.gov.uk/government/organisations/uk-visas-and-immigration

Some victims may move between Scotland and other jurisdictions in the UK. This may add complications. For example, whereas young people are regarded as adults in Scotland from age 16 (but see Definitions), the age of majority in England is 18. This may affect the availability of services. It may be important to point out any differences to colleagues south of the border and for you to be aware of those operating elsewhere in the UK.

The Forced Marriage Unit is a joint initiative of the Home Office and the Foreign & Commonwealth Office and has a UK-wide remit (see advice and assistance for victims and practitioners on section 2). Some victims may move between Scotland and overseas jurisdictions. Where cross-border or international issues arise, it is recommended that you advise and seek assistance from the FMU.

2. Advice and assistance for victims and practitioners

There are often complexities with forced marriage associated with immigration status, nationality, different legal systems, where the victim is and where the marriage took or is intended to take place.

The specific circumstances of each case will influence who you might approach for advice or assistance either for yourself as a practitioner or on behalf of a victim.

Shakti Women's Aid, Hemat Gryffe Women's Aid, Amina, the Muslim Women's Resource Centre, Roshni and Saheliya have considerable expertise of working with victims in Scotland (see Chapter 5) and the Forced Marriage Unit (see below) across the whole UK. The FMU may be particularly helpful if a woman is in, or moving to England or out of the UK.

Overseas, UK Embassies and High Commissions can offer consular assistance to British nationals plus, in certain circumstances, European Union or Commonwealth nationals whose country does not have a local Embassy or Consulate in the country concerned. They cannot offer assistance to European Union or Commonwealth nationals in the country of their own nationality.

When a British national approaches a British Embassy or High Commission, the Foreign and Commonwealth Office (FCO) may try to repatriate her as soon as possible. This means that agencies in the UK may receive little notice about her arrival. Sometimes the FCO asks the police or a local authority for assistance when a British national is being repatriated to the UK from overseas.

If an individual is a British national and also holds the nationality of another country, she is considered to be a dual national (see section 14). This may mean that the authorities in the country of her other nationality may view her as being solely or primarily a national of that country and treat her accordingly. Consequently, those authorities may not see the British Embassy or High Commission as having any right to assist her or may not permit any assistance to be given.

If the FCO thinks that there is a special humanitarian reason to do so, it will consider offering assistance to dual nationals in the country of their other nationality. Forced marriage is one of those circumstances where such an exception may be made.

The Forced Marriage Unit (FMU)

The FMU is a joint FCO and Home Office unit. It offers advice to anyone in the UK, regardless of nationality, and specific assistance to British nationals facing forced marriage abroad. In 2013, the Forced Marriage Unit (FMU) received calls about more than 1,300 possible or actual cases of forced marriage cases. However, forced marriage still remains hidden, and many more cases remain unreported. Forced marriage affects both women and men. The cases reported to the FMU in 2013 involved 74 different countries.

The FMU works with government departments, statutory agencies and voluntary organisations on policy and runs an outreach programme. It also offers a casework service as follows:

• Public helpline offering confidential advice and support to victims, and practitioners handling cases of forced marriage. Caseworkers in the unit have experience of the cultural, social and emotional issues surrounding forced marriage
• UK cases: information and support to those who fear they will be forced into marriage and can talk with them about their options
• Overseas cases: can assist British nationals facing forced marriage abroad by helping them to a place of safety and to return to the UK; also can assist non-British nationals facing forced marriage abroad by referring them to local organisations which can help
• Immigration cases: can help those who have already been forced into marriage to explore their options, including assisting those who are being forced to sponsor a spouse's visa for settlement in the UK

The FMU can assist a British national's return to the UK by providing emergency travel documents, helping to arrange flights and, if possible, arranging temporary accommodation whilst the woman is overseas. The FCO may ask the police to meet an individual on arrival in the UK, in case family members try to abduct them at the airport.

The FCO is obliged to ask the victim or trusted friends to fund the cost of repatriation. In some cases, repatriation has been funded by a local authority. The FMU, in certain very exceptional circumstances, may provide a loan from public funds to help a victim return to the UK, but only when all other avenues have been exhausted. She has to sign an agreement to pay the loan in full, and to secure the loan by giving up her passport to consular staff who can issue her with an emergency travel document valid for a single journey to the UK. Once the loan is repaid in full, her passport is returned, or a new passport issued.

Regardless of how the cost is finally met, this matter should never delay the process of getting the victim to safety.

When to contact the FMU

You should alert the FMU if you know, or suspect, that a victim has been, or is being, taken out of Scotland, or abroad. It can assist in alerting the police and authorities at points of departure so that the victim and accompanying persons can be detained and prevented from leaving the UK.

The FMU is happy to talk to practitioners handling cases of forced marriage at any stage in a case. It can offer information and advice on responding to forced marriage, including overseas assistance and how to approach victims. The FMU can also speak at conferences, run training workshops, and provide free leaflets and posters.

Contact details

Telephone: +44 (0) 20 7008 0151

Email: fmu@fco.gov.uk

Email for outreach work: fmuoutreach@fco.gov.uk

Facebook: Forced Marriage page

Twitter: @FMUnit

Address: Forced Marriage Unit, Room K4.7, Consular Directorate, Foreign & Commonwealth Office, London, SW1A 2AH

For emergencies out of hours, phone 020 7008 1500 and ask for the Global Response Centre.

Women's Aid in Scotland

Women's Aid provides advice, support and safe refuge for women, children and young people experiencing domestic abuse. There are Women's Aid groups across Scotland, and all should be able to provide advice and assistance both to women victims of forced marriage and to practitioners.

Services available to women include:

• Assistance into safe temporary accommodation either in a refuge or with a local authority; this could be within the immediate local area or elsewhere
• One-to-one emotional and practical support
• Information about a wide variety of legal issues and assisting them to get legal advice
• Advocacy to help secure benefits, housing and legal protection
• Resettlement support
• Language support
• Children and young people's services

Children and young people's workers also offer support to young people at school and/or other places where it is safe for them to do so.

Shakti Women's Aid and Hemat Gryffe Women's Aid have particular expertise in working with black minority ethnic women their children and with young people, including those in, or threatened with, forced marriage. Both services offer an outreach service to young women experiencing domestic abuse in the context of forced marriage and who are not yet ready to leave their homes.

See Chapter 5 for contact details.

Support for practitioners

Supporting someone who is at risk of, or already in a, forced marriage can be stressful. It can be distressing to hear accounts of trauma and abuse and practitioners sometimes worry that they may be overwhelmed by it. It is also common to feel frustrated or helpless if you cannot 'solve' the problem or if you find it difficult to accept or understand how a woman is somehow 'not able' to leave an abusive situation. It is important to recognise how you feel and ask for support or guidance from a colleague or line manager.

You or a colleague may have personal experience as a victim of such abuse. If so, it is important to recognise how this experience is affecting you/your colleague. Your agency should have an employee policy (for example domestic abuse policy, stalking policy) to guide how you/your colleague can be supported at work.

If you are concerned that a colleague might be involved in perpetrating a forced marriage, check your agency's employee policy for guidance about who to approach or how to address this issue.

For health workers, NHS Scotland has produced a gender-based violence employee (Partnership Information Network) PIN guideline which includes forced marriage: www.gbv.scot.nhs.uk/

Further information and training

See contacts in Chapter 5.

The statutory guidance requires organisations to ensure that their staff are aware of and trained to respond to forced marriage. The contacts section lists various organisations which can give you more information about training providers. See also www.womenssupportproject.co.uk/vawtraining

3. Definitions

The guidelines use the following definitions:

Forced marriage

A forced marriage is a marriage in which one or both spouses do not (or, in the case of children and some adults at risk, cannot) consent to the marriage and coercion is involved. Coercion can include verbal, physical, psychological, financial, sexual and emotional pressure and taking advantage of a person's inability to give consent.

For the definition of forced marriage, including coercion at law see the 2011 Forced Marriage Act at: www.legislation.gov.uk/asp/2011/15/pdfs/asp_20110015_en.pdf

Arranged marriage

An arranged marriage is one in which the families of both spouses take a leading role in arranging the marriage but the choice whether or not to accept the arrangement remains with the prospective spouses.

Honour-based violence

The terms 'honour crime', 'honour-based violence' and 'izzat' embrace a variety of crimes of violence (mainly but not exclusively against women), including physical abuse, sexual violence, abduction, forced marriage, imprisonment and murder where the person is being punished by their family or their community. They are punished for actually, or allegedly, 'undermining' what the family or community believes to be the correct code of behaviour. In transgressing this, the person shows that they have not been properly controlled to conform by their family and this is to the 'shame' or 'dishonour' of the family. 'Honour crime' may be considered by the perpetrator(s) as justified to protect or restore the 'honour' of a family.

Violence against women

The Scottish Government defines forced marriage as a form of violence against women. The full definition of violence against women is in the Scottish Government's violence against women strategy: Equally Safe ^[5]. Scotland's strategy for preventing and eradicating violence against women and girls

Gender-based violence

This is can be defined as 'Any form of violence used to establish, enforce or perpetuate gender inequalities and keep in place gendered orders. In other words gender based violence in a policing mechanism.'^[6] The European Commission defines gender based violence as a 'form of discrimination and a violation of the victim's fundamental freedoms. It can be defined as violence directed against a person because of that person's gender (including gender identity/expression) or as violence that affects persons of a particular gender disproportionately'.^[7] Gender-based violence disproportionately affects women and LGBT^[8] people and encompasses a spectrum of abuse that includes domestic abuse, rape and sexual assault, childhood sexual abuse, sexual harassment, homophobic, biphobic and transphobic bullying, stalking, commercial sexual exploitation, and harmful traditional practices such as female genital mutilation (FGM), forced marriage and so-called 'honour' crimes'.

Domestic abuse

The National Strategy to Address Domestic Abuse in Scotland (2000)^{[9] [10]}states:

'Domestic abuse (as gender-based abuse), can be perpetrated by partners or ex-partners and can include physical abuse (assault and physical attack involving a range of behaviour), sexual abuse (acts which degrade and humiliate women and are perpetrated against their will, including rape) and mental and emotional abuse (such as threats, verbal abuse, racial abuse, withholding money and other types of controlling behaviour such as isolation from family or friends).'

The strategy recognises that: 'Domestic abuse is most commonly perpetrated by men against women and takes a number of specific and identifiable forms. The existence of violence against men is not denied, nor is the existence of violence in same sex relationships, nor other forms of abuse, but domestic abuse requires a response which takes account of the gender specific elements and the broader gender inequalities which women face.'

It also states:

'…in accepting this definition, it must be recognised and taken into account that, particularly among black and minority ethnic communities, other family members connected to a woman through marriage may be involved in, or may participate in the abuse of the woman. In certain cases, abuse is perpetrated by other family members, even without the knowledge of the partner. In addition, there is abuse of women by members of their own families in the context of forced, as opposed to arranged, marriages or as a result of their failed marriages or divorce.'

It is important to be aware that domestic abuse also impacts upon 1 in 4 LGBT people in their lifetimes. Evidence shows that gay and bisexual men are at a particular high risk of rape, sexual assault and violence as are transgender people. It is therefore crucial that their specific needs are included and explored.

Victim

The term 'victim' is used throughout this document for the sake of simplicity to refer to people who are, or have been, or are at risk of being forced into marriage against their will. This term is not used to connote weakness or inferiority.

Perpetrator

The term perpetrator is used to refer to the people who are forcing someone to marry. This may include the spouse or prospective spouse, close and extended family members and members of the wider community.

Relevant third party (RTP)

Under the Forced Marriage Act, a relevant third party (RTP) can apply for a Forced Marriage Protection Order (see Section 10) without the permission of the court. RTPs are specified as a local authority, the Lord Advocate and others specified by Scottish Ministers. Any other third party can apply for an FMPO but they need the court's permission to do so.

Child, children and young people

In this guidance, the term 'children' is used to mean 'children and young people'.

A child can be defined differently in different legal contexts. Section 93(2)(a) and (b) of the Children (Scotland) Act 1995, as amended by schedules 5 and 6 of the Children's Hearings (Scotland) Act 2011, defines a child in relation to the powers and duties of the local authority.

This guidance is designed to include children and young people up to the age of 18. However, the protective interventions that can be taken depend on the circumstances and legislation relevant to that child or young person.

Young people aged between 16 and 18 are potentially vulnerable to falling between the gaps. Local services must ensure that there are processes for staff to offer support and protection as needed.

If a young person between the ages of 16 and 18 requires protection, services should consider which legislation, if any, applies. This depends on the young person's circumstances as well as the particular legislation or policy framework. Special consideration should be given to the issue of consent, and whether an intervention is possible if a young person has withheld consent.

This heightens the need for local areas to establish clear links between their Child and Adult Protection Committees and to have clear guidelines. The Adult Support and Protection (Scotland) Act 2007 may apply: www.scotland.gov.uk/Publications/2009/01/30112831/0

The priority is to ensure that a vulnerable young person who is, or may be, at risk of significant harm is offered support and protection, regardless of whether they access services in a child or adult protection framework. Each young person's circumstances and age are key factors in determining the mandatory legal measures to apply.

Child abuse and neglect

Abuse and neglect are forms of maltreatment of a child. Somebody may abuse or neglect a child by inflicting, or by failing to act to prevent, significant harm to the child. Children may experience abuse or neglect in different ways and the following types are set out in the Scottish Government's National Guidance for Child Protection in Scotland, refreshed in 2014^[11] : physical abuse; sexual abuse; emotional abuse; neglect. If a child is involved in a forced marriage, this should always be considered under a child protection response.

Child in need

Children who are defined as being 'in need' under section 93(4) of the Children (Scotland) Act 1995^[12], include those whose vulnerability is such that they are unlikely to reach or maintain a reasonable level of health or development, or their health or development will be significantly impaired, without the provision of services, plus those who are disabled. Local authorities have a duty to protect and promote the welfare of children in need.

Significant harm

The concept of 'significant harm' is complex and subject to professional judgement based on a multi-agency assessment of the circumstances of the child and their family. If there are concerns about wellbeing, harm, abuse or neglect, these must be shared with the relevant agencies so that they can decide together whether the harm is, or is likely to be, significant. It is essential that, when considering the presence or likelihood of significant harm, the impact (or potential impact) on the child takes priority and not simply the alleged abusive behaviour. See also the Scottish Government's National Guidance for Child Protection in Scotland (2014).

Getting It Right for Every Child

Getting It Right for Every Child (GIRFEC) is the national approach to improving the wellbeing of children and young people. Through policy and services at both national and local level, the GIRFEC approach:

• Puts the best interests of the child at the heart of decision making
• Takes a holistic approach to the wellbeing of a child
• Works with children, young people and their families on ways to improve wellbeing
• Advocates preventative work and early intervention to support children, young people and their families
• Believes professionals must work together in the best interests of the child

The Children and Young People (Scotland) Act 2014 is rooted in the GIRFEC approach, and put several key initiatives into statute, including the Named Person and the single Child's Plan. Other Scottish Government initiatives underpinned by GIRFEC principles include the Children's Hearing system; the Early Years Collaborative; Early and Effective Intervention/Whole Systems; and the Family Nurse Partnership.

The approach helps practitioners focus on what makes a positive difference for children and young people and how they can act to deliver these improvements. Getting it right for every child is being threaded through all existing policy, practice, strategy and legislation affecting children, young people and their families

Adult at risk

The Adult Support and Protection (Scotland) Act 2007^[13] defines adults at risk as adults who:

(a) Are unable to safeguard their own well-being, property, rights or other interests and
(b) Are at risk of harm and
(c) Because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected

'Risk of harm' for the purposes of subsection (1) is if:

(a) Another person's conduct is causing (or likely to cause) the adult to be harmed or
(b) The adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm

Learning disability

The term 'learning disability^[14]' can be described as follows: 'people with learning disabilities have a significant, lifelong, condition that started before adulthood, which affected their development and which means they need help to understand information; learn skills; and cope independently'. But this is only part of a description. It does not capture the whole person who can be much more - a friend, a family member, a community activist, a student, a parent, an employee or employer to name just a few roles. It is essential to keep in mind all of these possibilities.

A learning disability is a permanent impairment and not to be confused with mental illness, which can vary or be temporary, although people with learning disabilities can also experience mental illness. However, people with learning disabilities are not a homogenous group. Learning disability affects people in different ways.

This does not mean that those with capacity are less vulnerable to forced marriage.

Capacity to consent

Section 122 (2) of the Anti-Social Behaviour Crime and Policing Act 2014 includes specific provision to protect a victim who is incapable of consenting to marriage by reason of mental disorder.

Section 122 (5) goes on to define the meaning of 'mental disorder' as the meaning given by section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

The Adult Support and Protection (Scotland) Act 2007 places the issue of consent in the context of protecting adults at risk. Section 3 of that Act defines 'adults at risk' as are adults who:

(a) Are unable to safeguard their own well-being, property, rights or other interests
(b) Are at risk of harm, (harm is defined as including all harmful conduct and, in particular, conduct which causes physical or psychological harm, unlawful conduct which appropriates or adversely affects property, rights or interests (e.g. theft, fraud, embezzlement or extortion), or conduct which causes self-harm. 'Conduct' is also defined in this section as including neglect and other failures to act) and
(c) Because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.

(2) An adult is at risk of harm for the purposes of subsection (1) if:

(a) Another person's conduct is causing (or is likely to cause) the adult to be harmed or
(b) The adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm

Biphobia: irrational fear of, aversion to, or discrimination against bisexual people.

Bisexual: refers to someone who is emotionally and sexually attracted to women and men.

Gay: refers to someone who is emotionally and sexually attracted to people of the same sex. Some women prefer to refer to themselves as gay women rather than lesbian, although the word gay is most commonly used in reference to men.

Gender identity: refers to each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body and other expressions of gender, including dress, speech and mannerisms.

Homophobia: irrational fear of, aversion to, or discrimination against lesbian, gay and bisexual people.

Intersex: people born with sex chromosomes, external genitalia, or an internal reproductive system not considered biologically 'standard' for either male or female. This definition is a medical model, however, and some intersex people proudly identify as intersex.

Non-binary gender: gender identities which do not fit within the expected binary of male and female. People can feel they are both male and female, neither or a mixture.

Lesbian: refers to a woman who is emotionally and sexually attracted to other women.

LGBTI: acronym for Lesbian, Gay, Bisexual, Transgender and Intersex

Transgender: all-embracing umbrella term for those whose gender identity or expression conflicts with the 'norms' expected by the society they live in.

Transphobia: irrational fear of, aversion to, or discrimination against transgender people.