Forced Marriage Practitioner Guidance - update 2014

Section 3: Legal context and remedies

'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be a primary consideration.' United Nations Convention on the Rights of the Child, Article 3.1

9. Anti-Social Behaviour Crime and Policing Act 2014 and what it does

• Summary of provisions
• Offence of Forced Marriage in Scotland

10. The Forced Marriage Act and how it works

Summary of provisions
Forced Marriage Protection Orders
Third party applications for Forced Marriage Protection Orders
How the 2014 Act sits with the 2011 Act

• Q and A
• Case studies

11. Options for protection under the law: criminal law, adult and child protection

12. Options for protection under the law: other civil remedies

13. Forced marriage and immigration and nationality issues

9. The Anti-Social Behaviour Crime and Policing Act 2014 and how it works

Offence of Forced Marriage

The 2014 Act made forced marriage a criminal offence. This provides an additional layer of protection to victims from a practice that is a fundamental breach of human rights, and is also frequently accompanied by physical, psychological, financial, sexual and emotional abuse.

It did not replace the 2011 Forced Marriage Act.

Summary of provisions

Under Section 122:

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.

For 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).

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.

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

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

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.

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.

'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.

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.

10. The 2011 Forced Marriage Act and how it works

Summary of provisions

The main provisions of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011^[31] are:

• To protect people from being forced to marry without their free and full consent
• To protect those who have already been forced into marriage without consent
• To clarify the authority of the Sheriff court for annulling (declaring invalid) such marriages
• To introduce Forced Marriage Protection Orders (FMPO) to protect people from being forced to marry or who have already been so
• To allow the following categories of person to apply for an FMPO:
  • The victim
  • A 'relevant third party', who can apply on behalf of a victim but does not need to seek leave of the court
  • Anyone on behalf of a victim, as long as they obtain the court's permission to make an application
• To allow the court itself to make an FMPO as part of other civil or criminal proceedings
• To make it a criminal offence to breach an FMPO
• To enable Scottish Ministers to apply the provisions of part one of the Act to civil partnerships
• To require statutory agencies to respond appropriately

Definition of 'force'

Under the Act, to 'force' someone into marriage includes:

• Coerce using physical, verbal or psychological means, threatening conduct, harassment, or other means. This could include isolating them and not allowing them to see friends or go to school/college
• Knowingly taking advantage of a person's incapacity to consent to or understand marriage in general or the implications for them of a particular marriage. This could be, for example, an adult at risk or a child under 16

The conduct which forces a person to marry does not have to be directed against them. For example, if the perpetrator threatens to commit suicide, this would be seen by the court as force.

Forced Marriage Protection Orders

FMPOs are designed to prevent a forced marriage from occurring or to offer protective measures when a forced marriage has taken place. The court's powers are quite wide and they can tailor the terms of the order according to the specific needs of the victim. Orders may contain prohibitions, restrictions or requirements as the court thinks appropriate to stop or change the conduct of those who would force the victim into marriage.

Examples of the types of conditions that might be specified by an order the court might make are:

• To stop the protected person from going through the marriage ceremony
• To hand over to the court documents such as passports, birth certificates and travel documents
• To stop violent, threatening and intimidating conduct
• To disclose the whereabouts of a victim
• To stop someone from being taken to or from a specific place in Scotland/ or the UK, or taken abroad
• To facilitate or enable a person to return to Scotland within a specified period
• That the protected person must be taken to a place of safety designated in the order, or that the protected person be brought to a court at such time and place as the court specifies

Orders may also be made against other people, not named as respondents in the application. These can be third parties who are not directly involved but are aiding, abetting, counselling, procuring, encouraging or assisting another person to force, or to attempt to force, a person to enter into a marriage. This is to take account of the complexity of the issues, and because forced marriage can involve the wider community and many different people.

The court can also make an interim order if necessary.

An FMPO lasts as long as required. The court can order that the FMPO remains in force for a specified period of time, or no time can be set. If the FMPO is not time-limited, it will remain in force until the court recalls it.

Applying for an FMPO

The victim (the Act uses the term 'protected persons') or a third party (for example a local authority) can apply to the civil court for an FMPO.

It is possible to apply to the court for an interim order to provide immediate protection before the full order is made.

In certain circumstances, a civil or criminal court can also make an FMPO on its own initiative, without the victim or anyone else making a specific application to it. This can happen if the victim is involved in another civil or criminal action (for instance, they are applying for a protective civil order or are a witness in a criminal case where a crime has been committed against them) and the court considers that the circumstances of the matter are such that an FMPO should be made.

Third party applications for Forced Marriage Protection Orders

Victims of forced marriage may be reluctant to take legal action to protect themselves for fear of criminalising those involved, potential repercussions, including threats to their physical safety or child abduction, alienation of family and community and the stigma attached in involving their family and community. They may also not be in a position to take legal action on their own behalf.

The Act, therefore, allows people other than the victim to apply for an FMPO. This is known as a third party application.

Third parties who are particularly specified as 'Relevant Third Parties' (RTP) under the Act can apply without leave (permission) of the court. Relevant Third Parties are local authorities, the Lord Advocate and any other person specified by Scottish Ministers.

Anyone else can apply for an FMPO but they need to get leave of the court to apply. This is so that the court can assure itself that any third party is acting in the best interests of the victim.

Those working in child protection and with adults at risk of harm are most likely to come across cases of forced marriage and, therefore, need to consider the potential for an FMPO alongside existing measures of protection in order to discharge their statutory duties.

For all practitioners, this includes whether or not to apply for an order at all given concerns such as a victim's desire to remain anonymous and the risks to her involved in proceeding with an application for an order. Seeking an FMPO (for example when the victim is overseas) may alert the family. You should consider whether this might place the victim at greater risk of harm.

Making an application

Applications for an FMPO made by a local authority should be made via its legal department, in close liaison with the relevant frontline practitioner. Caseworkers and social workers should not try to pursue an application themselves. See the Scottish Courts website^[32] for more information about the application process.

It is possible, in an emergency, to make an application in the absence of the victim. This would be an 'interim forced marriage protection order'. This may be necessary if the victim is in immediate danger or at risk of being taken abroad.

All applications should be supported by affidavit (a sworn statement witnessed by a Notary Public). The court makes its decision on the civil burden of proof, on the balance of probability. There is, therefore, no 'threshold' to be met as in child protection cases.

An FMPO can be sought in other proceedings, for example applications for protective orders or actions under the Adult Support and Protection (Scotland) Act 2007^[33], the Mental Health (Care and Treatment) (Scotland) Act 2003^[34] and Adults with Incapacity (Scotland) Act 2000^[35].

If the victim decides to retract, every effort should be made to ensure that she is withdrawing of her own free will and is not being coerced. But remember, your legal obligation to act in situations where a child or adult is at risk of harm may still require you to attempt to secure this through the proper procedures.

It is important to consider how any retraction might affect the victim's safety and what other safety measures may be required (see Safety Planning)

• Court locations

Applications should be made to the Sheriff Court in whose sheriffdom the victim usually lives. If the victim does not ordinarily live in Scotland, the application should be made to the Sherriff of Lothian and Borders in Edinburgh.

Factors affecting a decision on which court is best placed to hear an application for an FMPO are likely to include whether the victim wants to remain anonymous; the risks involved if the victim proceeds with an application for a protection order and if they remain in the area; and the proximity to the court location and local facilities, including support networks.

See note in section 13 for women moving between different sheriffdoms.

For more on court locations see www.scotcourts.gov.uk

• Special measures

'Special measures' refer to physical protections and procedures that the court can order to be put in place in civil or criminal court proceedings, to support witnesses give their best evidence when they are concerned about going to court and facing their partner, family, and so on. Being able to give their best evidence can make a difference to the outcome of a case. This also applies to the 2014 Act where a person may be giving evidence in a criminal case.

The use of special measures should always be considered in any case where you are supporting a victim of forced marriage, not just in applications for an FMPO.

(Note: children have an automatic right to standard special measures.)

Examples of special measures are sitting behind a screen in the court room; having a supporter; giving evidence remotely or in private (or a combination of these measures). It is up to the judge to decide whether or not to approve special measures and, if so, which ones.

It is important to tell the victim about special measures. You should discuss them with her, and find out whether she wishes to use them as soon as possible if the victim is going to attend civil or criminal court hearings. Avoid making superficial judgements on a victim's 'capability' based on your own observations. Remember that these provisions are there to assist victims give their own evidence, and they can request them.

In a civil case, the obligation to apply for special measures lies with the party responsible for bringing or defending the action, in this case either the victim, relevant third party or others. In the criminal court, the responsibility lies with the Procurator Fiscal. In both cases, the practitioner should ensure that the relevant application or notice to use special measures has been made to the court by the woman/child's lawyer, the lawyer acting for any third party applicant or the Procurator Fiscal.

Guidance on special measures for vulnerable adult and child witnesses is at: www.scotland.gov.uk/Publications/2008/04/21142140/0

You may also need to make other arrangements to help the victim such as visiting the court in advance to familiarise themselves with it and where they would sit. Some courts are able to arrange for the victim to enter and leave court through separate doors and have separate toilets available from those which the perpetrator(s) and general public would use. Most waiting areas are communal and could provide an opportunity for perpetrators to intimidate and pressure the victim. Courts may be able to arrange for the victim to wait in another room.

The Procurator Fiscal will tell the victim if special measures have been granted. If a victim is concerned about intimidation at court, she should discuss these with either the VIA section of the Procurator Fiscal's office or Victim Support.

• Interpreters

The Scottish Court Service will provide an interpreter if the party/parties involved do not speak English as their first language. This is irrespective of whether solicitors are involved or public funding is available. An interpreter will generally be available for the applicant, respondent(s), and the victim if they are not an applicant but giving evidence as a witness. You should contact the relevant court to make the necessary arrangements. Family members must not be used to interpret (see Interpreting). If it is a criminal case and the victim is to be called as a Crown witness, the responsibility for arranging an interpreter lies with the Procurator Fiscal.

After an FMPO is issued

After the court has issued an FMPO or an interim FMPO, all practitioners should work closely with the victim, the police and any other support services to ensure it offers the level of protection envisaged and that ongoing support is available to victims as needed. The court can order that the FMPO remains in force for a specified period of time, or no time can be set. If the FMPO is not time-limited, it will remain in force until the court recalls it.

The applicant (the protected person, relevant third party or other party), and any other person affected by the FMPO, including those subject to its prohibitions and conditions, can go back to the court at any time to seek a variation of the conditions, or to have it recalled entirely. Therefore, your procedures must be such that court or any other papers relating to the FMPO should be dealt with immediately.

Similarly, the protected person should be made aware of this matter. They should be advised to contact their solicitor, their party applicant (if any) and the practitioner as soon as possible if they suspect that such an application will be made, or if they receive any papers whatsoever relating to their FMPO, particularly if they relate to revocation or variation of the FMPO.

Breach of FMPO

Breach of an FMPO is a criminal offence and punishable by imprisonment for up to 12 months, and/or a fine of up to £10,000. In more serious offences, the period of imprisonment can extend to up to two years.

The police may arrest without warrant any person whom they reasonably believe is committing or has committed a breach of an FMPO (not just a person named on the order).

The relevant third party or the victim should report the breach to the police in the first instance as this means it will be dealt with quickly and will be safer for the victim. If relevant, they should also contact the solicitor to go back to the court to report the breach. However, any person including, for example, a friend or relative of the protected person (even if not directly affected by the order) or a practitioner could report a breach of an FMPO to the police for investigation.

Fit with other legal remedies

An application for an FMPO is not an alternative to the work of the police and COPFS in investigating and prosecuting crimes. Crimes may be investigated and offenders prosecuted at the same time as an application for an FMPO is made or an order is in force. Forcing someone into marriage is a criminal offence. However, other criminal offences may also be committed. Perpetrators - usually parents or family members (but could also include members of the wider community) - could be prosecuted for offences including stalking, threatening and abusive behaviour, breach of the peace, assault, kidnap, abduction, theft (of passports), imprisonment and murder. See section 12 for more information.

Local authorities should refer to the statutory guidance and these guidelines as soon as they are alerted to a potential case of forced marriage. Practitioners may only have one chance (see One Chance Checklist) to speak to a potential victim of forced marriage and the opportunity to take effective action may be limited, particularly if there is the threat of removal from the country. If children are involved, you may be able to use child protection procedures. See section 6 for information about ensuring safety of victims.

You should speak to your legal department so they are fully aware and can advise you about the types of legal remedies that might be available to support a victim from this early stage.

An FMPO may be appropriate alongside other remedies. In some cases, for example, if the forced marriage has not yet taken place, it may be more appropriate to seek another civil order or involve the police if there is a danger to the victim's physical safety. Assessing the level of risk to the victim is essential in deciding how to proceed. Information about other legal remedies available is in section 12.

You should consider referring a victim to a solicitor for other assistance/protective measures under civil law. Ideally, this should be an experienced Family Law solicitor and/or a solicitor versed in immigration rights. The Family Law Association of Scotland [www.familylawassociation.org/index.asp] and the Law Society of Scotland [www.lawscot.org.uk/] can help with this.

Ending a forced marriage

Depending on the circumstances of the marriage, a forced marriage may be legally valid until the court makes an order for divorce or grants a declarator of nullity. In other cases, a marriage may never have been legally valid but a party to the purported marriage may wish to seek a declarator of nullity to put the position beyond doubt and to show that the marriage never existed. There are strict legal requirements which govern whether a marriage is valid under Scots law. The rules for recognising a marriage vary depending on the country in which the marriage took place. When considering the validity of a marriage, particularly a marriage which took place overseas, you should seek specialist legal advice.

Partnership working to protect victims

The Scottish Government strongly promotes a multi-agency response as the most effective way to tackle domestic abuse. This approach is clearly transferrable to forced marriage cases which require the same level of inter-agency co-operation and information sharing to protect individuals and respond in a timely and effective way.

Close liaison with other departments and agencies is vital as cases progress through the courts and also following the issuing of an FMPO, when contact with the victim needs to be maintained not just to monitor their welfare but also to ensure the order remains effective.

The statutory guidance http://www.scotland.gov.uk/forcedmarriageupdate2014 requires that local authorities forge links with local schools, health services, the police and the voluntary sector to agree an appropriate local system for referrals, support and response. This includes close liaison with partners to agree which agency will act on an FMPO application in specific circumstances. There should be links between local Violence Against Women Partnerships and Adult Support and Protection and Child Protection Committees.

Practitioners need to work consistently with their internal/organisation information sharing and referral protocols on forced marriage. You also need to take account of the networks within extended families and communities; as well as the speed at which information may spread through these.

Family/community members may work in your agency and, therefore, be party to information about a referral/application. If they use their position as an employee to gain information, this would be, at least, a breach of organisational conduct, and also possibly a professional breach which should be reported to their professional body. It may also be a breach of data protection legislation and, therefore, a criminal offence.

You could be put under enormous pressure to divulge information and face conflict with professional duties compromised by very strong community ties.

11. How the 2014 Act sits with the 2011 Forced Marriage Act

The 2014 Act works alongside the 2011 Act. Victims can use the Forced Marriage Act 2011 to apply to the civil court for a Forced Marriage Protection Order while the police and COPFS undertake criminal investigation/proceedings under the Anti-Social Behaviour Crime and Policing Act 2014.

Q and A

Q: How do FMPOs fit with the criminal offence of forced marriage?

FMPOs are a civil remedy. They exist alongside the criminal offence of forced marriage. This means that a victim can apply for an FMPO to the civil court separately from criminal proceedings. Depending on the circumstances, criminal proceedings may take place in tandem.

Q: What happens if a person under 16 discloses to a teacher, carer, support organisation and so on that they may be in danger of being forced into marriage?

The relevant child protection procedures will be activated.

What are the penalties for forcing someone into a marriage in Scotland?

Q: The maximum penalty for forced marriage is seven years' imprisonment.

Q: What is the level of proof required for an FMPO?

The point of an FMPO is to protect someone. When deciding to grant an FMPO, the court looks at the whole circumstances and decides, on balance, whether there is at least enough risk of something happening to a person in order to justify granting an order.

The court does not have to be satisfied beyond reasonable doubt (the criminal standard) that, without granting the order, harm will take place.

If there is not enough evidence to obtain a conviction, there is nothing to prevent a victim seeking a civil order. The civil and the criminal routes are about different things. The criminal offence deals with acts that have already been committed. The civil route is about preventing future acts.

Q: If someone's behaviour may constitute a breach of the conditions of an FMPO order what level of proof would be required to allow this to proceed to court to establish that a criminal offence in breach of the FMPO has taken place?

The standard of proof needed to convict an accused person of any criminal offence is 'beyond reasonable doubt'.

Q: What level of proof is required to allow an accusation of forced marriage to proceed to court and be prosecuted under either the specific criminal offence and/or any other criminal offences?

The COPFS Prosecution Code sets out the decision-making process followed by the Crown when it receives a report of a criminal offence. It sets out both the evidential considerations and the public interest considerations relevant to decision making.

Q: Would COPFS proceed with a prosecution without the victim's consent or involvement, if there was sufficient evidence from other sources?

The consent of the victim is not a prerequisite for criminal proceedings in Scotland. 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.

Q: How are those who give evidence in a forced marriage case protected?

Both the criminal and civil courts provide a range of special measures such as live TV links, screens and a supporter to help vulnerable victims and witnesses to give their best evidence.

Q: Can a victim apply for legal aid?

Yes, a victim can seek legal assistance. Applications for legal aid must be made by a solicitor, on behalf of the client. The Scottish Legal Aid Board grants legal assistance if the applicant meets the statutory eligibility tests.

Case studies

1: Adult with disability

SW is 20 and living at home with her parents and siblings. SW's father perpetrates domestic abuse towards the family.

SW has learning difficulties and receives support from various agencies. She is attending college but will be finishing within the next year. She receives Disability Living Allowance which her mother manages.

SW has told one of her support workers that things at home have been quite difficult. There have been lots of arguments, and this really upsets SW. She thinks that she would like to leave home but realises she needs support to do this. SW is too scared to talk to her mother about this because she knows it will cause more arguments.

Things have deteriorated since SW's mother found texts from boys in SW's college class on her phone. Her parents have become more controlling and are not letting SW out by herself. They have been getting an older sibling to check her phone to see who she is messaging. SW has also mentioned that her parents are telling her what clothes she should be wearing. SW's support worker has noticed that SW has started wearing a head scarf.

Suggested action:

• Call adult protection meeting with partners
• Access capacity to consent to marriage and an arranged marriage
• Carry out fact finding discreetly and take account of the impact of domestic abuse in the family and the individual's ability to keep information safe
• Assess parents' relationship with their culture and their views on marriage
• Do not mediate with family
• Do not assume that the individual's mother is a protective factor
• Think of long-term consequences of any action taken (this will apply in all cases)

2: Young person at school (adult)

AT's guidance teacher became concerned after there was a dramatic change in AT's behaviour after the family returned from an unexpected two-month trip abroad to visit relatives. AT, who is 17, used to be a very talkative, happy young woman who had good relationships with her peers. Since returning to school AT has been withdrawing from her friends and other members of staff have noticed that AT has become quite tearful. When questioned, AT says that everything is fine and is very closed off.

Previously, AT's mother was quite active within the school but recently, AT's step-father has been taking over and has been attending meetings at school without AT's mother.

Teachers have commented that AT's step-father does not seem interested in supporting AT to continue with her education, and has hinted that AT will be looking for a job and may be leaving at the end of the school year.

Suggested action:

• Discuss concerns with forced marriage lead professional or specialist agency
• Speak to AT confidentially about staff concerns
• Do risk assessment to ensure that she has a safety plan
• Consider linking AT with a specialist service which can discuss options with her
• Do not speak to parents about your concerns

3: Young person under 16

EB's older sister, CD, recently left home after seeking help because she thought her parents were going to force her to get married. CD decided not to pursue any legal action or protection and moved out of the area, not telling her family where she is because she thinks this may put her in danger. CD told professionals that she was worried that EB might be forced to take her place as all the arrangements for the marriage have already been made between the two families.

EB is 14 and is about to finish 2^nd year in high school. She is adamant that there are no plans for her to get married. She wants to stay on at school until 6^th year and then go to college. EB says that her sister made up all the accusations about their parents and was lying when she talked to the police. EB has said during class discussions that she believes that it is her religious obligation to obey her parents and do as they ask.

EB is not allowed to join any after school activities. She does not have a mobile phone as her parents will not allow her to have one. She has no friends at school and spends break times by herself. She has poor attendance at school and teachers describe her as being very withdrawn.

Suggested action:

• Consult with your forced marriage lead professional and follow child protection procedures
• Consult with specialist agencies which could support EB and offer her general advice
• Consider Forced Marriage Protection Order/Child Protection Order

4: Young person under 16

HM was living with her aunt, uncle, their three children and grandmother because of problems between her parents. She was experiencing abuse from her aunt, uncle and grandmother. There was police involvement on several occasions because of threats to her from her uncle, father and step farther.

A children and families support worker raised concerns about HM's physical and emotional wellbeing. HM was 14 and very isolated. Her school attendance was very poor and she would often arrive at school unkempt and wearing dirty clothes.

HM shared a room with her grandmother and was treated very differently from the other three children within the house. She was not allowed a mobile phone or internet access. She was not allowed to eat with everyone else and confided in her support worker that often she was very hungry. She was not allowed to use the bathroom without permission. She was required to wear traditional clothing. She was not allowed to attend any after school activities and had very few friends.

HM mentioned to her support worker from a BME organisation that she believes when she turns 16 she will be required to marry one of her relatives to allow them to come into the UK, as this has happened to other members of her family. However, when HM was interviewed by a social worker she did not disclose these fears.

Suggested action

• Call for child protection case conference
• Consult with specialist agencies which could support HM and give general advice
• Consider Forced Marriage Protection Order/Child Protection Order
• Consider risk to life and possible abduction
• Do not discuss concerns with any family members
• Recognise that HM may not disclose information to all professionals; this does not mean that her fears are not genuine
• Carry out risk assessment paying particular attention to safety planning if HM is to be removed. The identified carer should be able to support the complexities and risk to the child. A kinship placement is not appropriate.

5: LGBTI victim

SM came to Scotland from oversees after being forced to marry her husband. She does not speak any English. She presented at Women's Aid with her friend, MP, and her two-year-old child. MP was also fleeing a forced marriage and said that she had agreed to her engagement under coercion as she believed that this would 'cure' her of being a lesbian. SM and MP want to be accommodated together. Both believe that if they are found that they will be killed for dishonouring their family and communities.

Suggested action:

• Understand that being LGBTI is considered sinful and 'curable' in many societies and that those who identify as being LGBTI are not always able to talk about this
• Explain explicitly that your service is LGBTI inclusive and for anyone regardless of sexual orientation or gender identity. But recognise that SM and MP do not need to disclose the nature of their relationship
• o Include risk from the extended family and wider community in your risk assessment

6: Young person under 16

Ms H is 13, of Roma descent, and lives with her grandparents. Before the summer holidays, during a meeting with the school, her grandmother informed the head teacher that Ms H would not be attending school after the summer break as the family had made plans for her and a 15-year-old Roma boy from another area to marry. The head teacher informed the local social work department who informed the police. A joint investigation resulted in the local authority applying for a civil Forced Marriage Protection Order. An FMPO was obtained and this prevented the forced marriage taking place. Ms H has continued her education supported by the local authority.

7: Male victim

Mr B, age 19, lived at home with his parents. They told him that they had arranged a wedding for him in Pakistan. Mr B refused to cooperate with their plans and left the family home to stay with a friend in another town. Not knowing where he was staying, Mr B`s parents reported him missing to the police.

The same day Mr B went into a police station and informed them that he was safe and well but that he did not wish his whereabouts disclosed to his parents. Although Mr B did not think he was at any risk from his parents, the police carried out a full risk assessment and worked out a safety plan. Mr B was given advice and made aware of his option to apply for a Forced Marriage Protection Order. Mr B, as an adult with capacity, decided that he did not wish to proceed down this route.

12. Options for protection under the law: criminal law, adult and child protection

Everyone has the right to live without fear and abuse and to protection from crime.

It is open to anyone to contact the police if they or their children are in any danger. A third party can also contact the police if they are concerned for someone's safety

There are various other options under Scottish criminal and civil law which can protect people threatened with or in a forced marriage. Some require the police or local authority to take action whilst others require the victim to apply to the court.

The relevance of the options below vary according to where the marriage took place; where the victim is; the circumstances of the victim, including their age, immigration status and so on. The information will give you an indication of the different possibilities for protecting someone who is already in or at risk of a forced marriage but you should seek further information about the detail.

Publicly-funded legal aid^[36] may be available if someone is not otherwise able to afford legal advice or representation, subject to statutory eligibility tests. Funding for legal advice is not counted as public funds, and individuals may be entitled to free legal advice whatever their immigration status. Depending on an individual's financial circumstances, they may have to pay a contribution towards their legal costs.

It is important to emphasise to victims that the law, on its own, cannot be relied on to keep them safe because some perpetrators will disregard it. Victims have to use every way they can to stay safe. This includes having a safety plan (see section 6).

For civil procedures, it is important to get legal advice as early as possible, preferably from an experienced family law solicitor. Information about how to find a solicitor is at: www.lawscot.org.uk and www.familylawassociation.org/index.asp.

For further information about domestic abuse and the law see www.scottishwomensaid.org.uk

Criminal law

Whilst section 122 of the Anti-Social Behaviour Crime and Policing Act makes an offence of 'forcing someone to marry' (see section 9), there may be other criminal offences. Perpetrators - usually parents or family members - could be prosecuted for offences including stalking, harassment, threatening and abusive behaviour, assault, kidnap, plagium (theft of a child), theft (of passport), extortion, abduction and murder. Sexual intercourse without consent is rape^[37], regardless of whether this occurs within a marriage. A woman who is forced into marriage is likely to be raped, and may be raped until she becomes pregnant.

Assisting in a criminal offence is also prosecutable.

The immigration legislation and rules also provide protection for adults, children and young people. The age of entry into the UK for spouses, fiancés, civil partners, unmarried or same sex partners is 18, and assisting in an unlawful entry is a criminal offence.

There are specific offences to protect children and deal with criminal behaviour such as child abduction, cruelty to persons under 16 (including neglect and abandonment), failure to secure regular attendance at school of a registered pupil and physical punishment of children.

The Sexual Offences (Scotland) Act 2009^[38], contains provisions which criminalise people engaging in sexual activity with children under the age of 16, whether the conduct is apparently consented to by the child or not. It is not a defence to these offences that the accused was married to the child.

Adult protection

There is a range of protective measures under legislation including the Adult Support and Protection (Scotland) Act 2007^[39], Adults with Incapacity (Scotland) Act 2000^[40] and the Mental Health (Care and Treatment) (Scotland) Act 2003^[41] which can protect adults at risk. In certain circumstances, the police can intervene to protect adults at risk. See more on adult support and protection in section 19.

Child protection

Social work services may approach the police and ask for their assistance in undertaking a joint investigation. Social work services and police have a clear statutory role in deciding whether an investigation should take place. The way in which this is to be handled should be covered in the local inter-agency child protection procedures. A joint approach must always be considered if it is thought that a child or young person is at immediate risk of forced marriage.

For more information about legislation, terms and powers relating to child protection see www.scotland.gov.uk/Publications/2010/12/09134441/0. This document also has a section on honour-based violence and forced marriage.

In a joint investigation, key agencies such as social work services, the police and health services should plan and carry out their respective tasks in a coordinated way. This should not preclude any other agencies or individuals becoming involved. This could be, for example, education services, exercising their duties as the Named Person under the Children and Young People (Scotland) Act 2014; third sector support organisations supporting a child throughout an investigation; and adult services identifying risk factors. Within a joint investigation, agencies will have, at times, different responsibilities to fulfill, but associated activities, including the designation of a place of safety, should be planned together.

Young people between 16 and 18 who are still subject to a compulsory supervision order by a Children's Hearing can be viewed as a child. Young people over the age of 16 may still require intervention to protect them. The Named Person approach covers people up to and including those who have attained the age of 18 while attending school covered by part 4 of the Children and Young People (Scotland) Act 2014.

Emergency child protection measures

In an emergency involving a child or young person, the police have a specific power under Section 56(1) of the Children's Hearings (Scotland) Act 2011^{[42] [43]}to ensure the immediate protection of children or young people believed to be suffering from, or at risk of, significant harm, commonly referred to as 'Police Emergency Powers'. This may result in the child or young person being removed to a place of safety. These measures are only used in an emergency.

The Children's Hearings (Scotland) Act 2011 (Child Protection Emergency Measures) Regulations 2012^[44] require certain people to be informed when a child or young person is removed under this section including children's social work services within the local authority where the child or young person is ordinarily resident and where the designated place of safety is deemed to be. Under Section 56(3) of the Children's Hearings (Scotland) Act 2011, the child or young person can only be kept in a place of safety for 24 hours and further protective measures may have to be sought, for example a Child Protection Order (CPO), see below. Note that emergency measures cease when a CPO is made.

See also below under Children's Hearings.

Child Protection Orders (CPO)

Anyone, including the child, may apply to the sheriff for a Child Protection Order (CPO) under section 37(1) of the Children's Hearings (Scotland) Act 2011. A local authority can also apply for a CPO under section 37(1) if it has reasonable grounds to suspect that a child is suffering or will suffer significant harm, and if its enquiries into this are being frustrated by access to the child being unreasonably denied. An application for a CPO can also be made by anyone to a Justice of the Peace under section 55. Under sections 37(2) and (3) a CPO can authorise more than removing a child to a place of safety. The other remedies in that section may be relevant to forced marriage.

In most cases, a CPO will authorise the applicant to either remove the child to a place of safety or, alternatively, prevent their removal from such a place. Directions may be attached to a CPO, regulating matters such as the child's contact with other people. A CPO may also direct that a medical examination takes place, although this does not override the child's capacity to consent or otherwise to such an examination under the Age of Legal Capacity (Scotland) Act 1991^[45] (section 186 of the Children's Hearings (Scotland) Act 2011). Once a CPO is made, the applicant must inform the Principal Reporter who, if no application to vary or terminate the CPO has been made, must convene a Hearing to consider the continued protection of the child.

Place of safety/warrants to secure attendance

Children's hearings, on application from the Principal Reporter, or the sheriff, also have powers to issue warrants in certain circumstances, which may authorise the searching, finding and keeping of a child in a place of safety pending a children's hearing or hearing before the sheriff. A child (in this case, someone under 18) could also, under section 38 of the Children (Scotland) Act, 1995 (as amended by the Children's Hearings (Scotland) Act 2011^[46]) request that the local authority provides them with short-term refuge.

Child Assessment Orders (CAO)

The Children's Hearings (Scotland) Act 2011 also provides for the local authority to apply for a Child Assessment Order (CAO) under section 35 if it has reasonable cause to suspect that a child or young person is being neglected or being treated in such a way that they may be suffering, or likely to suffer, significant harm and it is unlikely that the assessment could be carried out, or carried out satisfactorily, unless the order is made.

The CAO requires any person in a position to do so to produce the child or young person; may permit a child to be taken or kept in a specified place during the life of the order; and may include directions about contact between the child and any other person. This allows any assessment needed to take place so that practitioners can decide whether they should act to safeguard a child or young person's welfare.

The CAO may also require the child to undergo a medical examination, although the child's capacity to consent to such an examination mentioned for CPOs (see above) would apply. If an application is made, and the sheriff considers that the conditions for making a CAO are satisfied, the order must begin no later than 24 hours after the order is granted and may not exceed three days.

Remember:

There is no legal requirement for a parent or other adult to give consent or be present when a police officer speaks to a child or young person in order to establish their welfare or any wellbeing concern. Indeed, when it is suspected that an adult who is present has had some involvement in the child protection issue being enquired into, the officer should endeavour to speak with the child or young person separately. It should be considered whether an adult's refusal to permit lone access to speak with the child or young person might raise suspicion of risk of harm.

If entry to premises or any part of premises is refused, police should consider whether it is appropriate to exercise their emergency powers under Section 56(1) of the Children's Hearings (Scotland) Act 2011^[47].

A child or young person may wish a choice of a male or female police officer. They may, or may not, want to see a police officer from their own community. Their preferences should be considered and accommodated if possible, but the immediate safety and wellbeing of the child or young person are the priorities.

In all cases, staff should ensure that the Child Protection Register has been checked in accordance with local inter-agency child protection procedures.

Practitioners may be placed under pressure from relatives, those with influence within the community, councillors, MSPs or MPs to say where the child or young person has gone. DO NOT divulge this information.

Children's Hearings and compulsory supervision orders

Under Section 22(1) of the Children (Scotland) Act 1995, the local authority has a duty to safeguard and promote the welfare of children in need in their area, and, so far as is consistent with that duty, to promote the upbringing of such children by their families by providing a level of services appropriate to those children's needs.

Under Section 60 of the Children's Hearings (Scotland) Act 2011the local authority has a duty to make enquiries into the circumstances of any child who may be in need of a compulsory supervision order and to refer the child to the Reporter if the inquiry indicates a compulsory supervision order may be necessary.

Referral to Children's Hearing by the Reporter

Anyone can refer a child to the Reporter if the child may require a compulsory supervision order, either because of concerns over their welfare or in order to address offending behaviour. On receiving the referral, the Reporter will conduct an investigation, involving an assessment of the evidence supporting the ground for referral, the extent of concerns over the child's welfare and behaviour and the level of co-operation with agencies, which all lead to an assessment of the need for compulsory measures of supervision.

The Principal Reporter may refer the case of a child to a Children's Hearing to consider whether or not a compulsory supervision order is required for the protection, guidance, treatment or control of a child. The grounds for referral are set out in section 67 of the Children's Hearings (Scotland) Act 2011.

In particular, section 67(2)(p) and (q) (amended and inserted by section 13 of the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011) include the grounds that a child (i) has been, is being, or is likely to be, subjected to physical, emotional or other pressure to enter into a civil partnership, or forced into a marriage, (ii) is, or is likely to become, a member of the same household as such a child^[48].

In making the assessment, the Reporter will rely on information from other agencies, most commonly social work and education services, although healthcare staff may also be asked to contribute. If the Reporter decides that there is sufficient evidence to need supervision measures, the child will be called to a Children's Hearing. The investigation can take place at the same time as a criminal investigation or criminal court case, but the focus will remain on the needs and welfare of the child or young person.

Compulsory supervision order made by Children's Hearing

Compulsory supervision orders (CSO) are the most common form of compulsory supervision made by Children's Hearings. In urgent cases, if the hearing is not able to determine whether to make a CSO and the circumstances are such that for the child's protection, guidance, treatment or control it is considered necessary, an interim compulsory supervision order (ICSO) can be made. Children who are referred on care and protection grounds, as well as those referred on offence grounds, can be the subject of a compulsory supervision order. Supervision measures vary, although the most common involve supervision at home by a social worker. In other cases, a child could be required to live away from home, for example with foster carers, in a local authority home or in a residential school. It is the statutory responsibility of local authorities to implement compulsory supervision orders.

Section 134 of the Children's Hearings (Scotland) Act 2011 places a duty on a relevant person, when a child is subject to a compulsory supervision order, to give notice to the Principal Reporter in the hearings system and the relevant local authority of any proposal to take the child to live out with Scotland not later than 28 days prior to doing so. This proposal would then be considered by a Children's Hearing.

See also Place of Safety/Warrants above.

Excluding people from Children's Hearings proceedings as child protection measure

Sections 76 and 77 of the Children's Hearings (Scotland) Act 2011 and Rule 59 of the Children's Hearings (Scotland)Act 2011 (Rules of Procedure in Children's Hearings) Rules 2013^[49], provide a power for the hearing to exclude relevant persons or their representatives from attending any parts of the hearing for as long as is necessary in the interests of the child in order to obtain the views of the child if the presence of such a person is preventing the hearing from obtaining the views of the child or is causing significant distress to the child. Current practice allows for a single hearing to achieve this by allowing a child and relevant person to attend separately where risk is identified as above.

In care proceedings, local authorities are required to demonstrate to the court that they have considered family members and friends as potential carers at each stage of their decision-making. However, in cases of forced marriage, professionals should exercise extreme caution in how they evidence this. Family group conferences are not appropriate in these cases (see The danger of family counselling).

13. Options for protection under the law: other civil law remedies

The courts in Scotland can grant civil orders to protect those threatened with, or already in, a forced marriage.

General protective orders

The following civil remedies may offer some protection or assistance to an adult, young person or child who is being, or has been, forced into a marriage:

• A common law interdict^[50] with power of arrest under the Protection from Abuse (Scotland) Act 2001^[51]
• An interdict or civil non-harassment order^[52] under the Protection from Harassment Act 1997^[53]
• A matrimonial interdict under the Matrimonial Homes (Family Protection) (Scotland) Act 1981^[54] with power of arrest under 'the 2001 Act' (available within marriage, against the spouse only)
• A domestic interdict under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 with power of arrest under 'the 2001 Act' (available only to couples who are or were living together)
• An exclusion order^[55] under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (available to spouses or cohabiting couples only)
• A 'domestic abuse' interdict with a power of arrest under the Domestic Abuse (Scotland) Act 2011^[56] with a power of arrest under the 2001 Act. Breach of such an interdict is a criminal offence punishable by a fine or imprisonment or both
• A declarator of nullity of marriage (that the marriage is void meaning that it is considered legally never to have existed). This can be obtained in the Sheriff Court under the Forced Marriage etc. (Protection and Jurisdiction)(Scotland) Act 2011^[57]
• Divorce (ends the marriage under the law). A spouse can apply for a divorce if the marriage has 'broken down irretrievably'; this can be with or without the consent of the other spouse and using an ordinary or simple procedure; more information about divorce at www.familylawassociation.org/index.asp
• Exclusion order after divorce under section 14(2)(d) of the Family Law (Scotland) Act 1985^[58]

Note that a woman must have been in the UK for at least 28 days to be eligible to apply for a civil protection order. Further, if she moves from one place to another in Scotland, and she has moved outwith the jurisdiction of the sheriffdom covering her original home (for example, she moves from Edinburgh to Inverness), she will have to live in the new area for at least 40 days before she can apply to the local courts for a Forced Marriage Protection Order or other civil order.

Homelessness legislation

The Housing (Scotland) Act 1987^[59], Housing (Scotland) Act 2001^[60] and the Homelessness etc. (Scotland) Act 2003^[61] outline local authority duties to those experiencing homelessness. All homeless people who are unintentionally homeless have the right to settled accommodation. A statutory Code of Guidance for local authorities^[62] was published in 2005, supplemented by Prevention of Homelessness Guidance in 2009^[63]. They establish that that an individual has the right to live in safety and feel secure in their own home and that local authorities have a duty to assist and to provide temporary or settled accommodation for those experiencing domestic abuse (see paragraph 7.2 in the Code of Guidance and 115 in the Prevention of Homelessness Guidance). Forced marriage is a form of domestic abuse.

Protecting children

See previous pages.

14. Forced marriage and immigration and nationality issues

Note that it is illegal to give immigration advice unless you are authorised to do so. If immigration advice is required you should refer to an authorised adviser.

The UK Visas and Immigration and the Forced Marriage Unit (see section 2) can provide further detail on issues relevant to immigration, nationality and forced marriage.

Forced marriage and visas

If a woman has been forced to marry someone from overseas, the latter may want to apply for a spousal visa giving them official permission to enter, and join her in, the UK.

The age at which someone can sponsor or be sponsored as a spouse is 18.

At first, a spouse will be granted permission to stay in the UK for a probationary period of two years (this applies to those who were granted a spousal visa before 9 July 2012. For those who applied after this date, there is a 5- and 10-year route to settlement as a spouse). At the end of this time, if still married, the sponsoring spouse would normally apply for them to stay in the UK permanently. This is called indefinite leave to remain (ILR).

They will not be granted a spousal visa to come to the UK if the woman makes a disclosable statement saying that she does not support her spouse's application.

If the spouse is already in the UK and wants to be granted ILR, and this is against the woman's wishes, it may be possible to get the spousal visa revoked and the spouse may be asked to leave the country.

For more information see UK Visas and Immigration: www.gov.uk/government/organisations/uk-visas-and-immigration

Domestic abuse, immigration and 'no recourse to public funds'

If a woman has come to the UK from overseas on a spousal or other temporary visa, such as a student study visa, she may not have indefinite leave to remain, exceptional leave to remain or a right of abode in the UK. Since she has no permission to remain in the UK permanently, she is, therefore, likely to be ineligible to obtain 'public funds', such as welfare benefit payments (income support, housing benefit ) and access to temporary and permanent local authority accommodation. This has a direct impact on her ability to get accommodation and support, including refuge provision. (Note that this does not prevent her from applying for housing association accommodation as this does not come under the definition of public funds).

There is guidance from the Home Office on Recourse to Public Funds: www.gov.uk/government/uploads/system/uploads/attachment_data/file/284160/Public_funds_v12_0EXT.pdf

Women who are fleeing an abusive partner/husband are able to apply for permission to stay in the UK for three months while they apply to settle as a victim of 'domestic violence'. This is called the 'Victim of Domestic Violence Concession'. They can apply for this concession if:

• They have permission to be in the UK as the partner of a British citizen, a person settled in the UK, or a member of HM Forces who has served for at least four years
• They are destitute, that is they do not have enough money to support themselves or pay for somewhere to live. If the concession is granted, they will be able to apply for financial help from the UK Government

Full details at 'apply to settle in the UK': www.gov.uk/settle-in-the-uk/y/you-re-the-family-member-of-a-british-citizen/no/on-a-work-visa/tier-5

These applications require supporting evidence. You could help a woman to compile this. You can also help with women's applications under the above rule by providing evidence of domestic abuse (for example a GP could provide a medical report).

Dual nationality

If a person is a British national and also holds the nationality of another country, they are considered to be a dual national. This may mean that, in the country of their other nationality, the authorities may view them as being solely or primarily nationals of that country and treat them accordingly. They may not recognise that the British Embassy or High Commission has any right to assist them or may not permit any assistance to be given. If the Foreign and Commonwealth Office considers 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.

• Advise anyone facing forced marriage who holds dual nationality to travel under their British passport
• When asking a court to order the surrender of the passports of a person to prevent them from being taken abroad, ensure that this includes all passports if they are a dual national

If you have any queries about dual nationality contact the Forced Marriage Unit (see section 2)