Forced marriage: statutory guidance

Chapter 4

Roles and Responsibilities of Chief Executives, Directors and senior managers to whom this guidance is for

84. All Chief Executives, Directors and senior managers exercising public functions should ensure that their staff are aware of their responsibilities and duties when working with victims of forced marriage. All professionals working within statutory agencies should be conscious of the fact they may have limited opportunity to engage with a potential victim, and take the appropriate action to intervene, which should involve engaging with specialist support services who may already be working with the person at risk.

85. Forced marriage is a form of abuse, a breach of the person at risk's human rights, and should be treated as such. Organisations should have structures, policies and procedures in place to protect children, adults at risk and victims of domestic abuse. Forced marriage cases should be approached using these alongside relevant multi-agency guidance^[63] and policies.

86. Existing strategic bodies have a responsibility to develop and implement multi-agency policies and procedures for forced marriage. This includes strategic partnerships, such as multi-agency Violence Against Women Partnerships, community safety partnerships, and local Child Protection and Adult Protection Committees who should work together to ensure a consistent and joined up and effective response.

87. Public authorities and others carrying out public functions should also be aware of their statutory obligations under the Equality Act 2010^[64] to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct which is unlawful under that Act, and advance equality of opportunity and foster good relations between people who share a protected characteristic (in terms of the Act) and people who do not share it.

Senior management commitment

88. Chief Executives, Directors and senior managers of all organisations listed in Appendix A should ensure their organisation has:

• A person with lead responsibility for the issue of forced marriage. This is likely to be a person who already holds responsibility for public protection including responsibility for protecting children, adults at risk, or victims of domestic abuse and other forms of gender based violence. The contact details for this person should be publicised both within the organisation and with appropriate external partners;
• Additionally, another named person or person with lead responsibility as above, should have responsibility for overseeing the organisational response to forced marriage, ensuring that cases of forced marriage are handled, monitored, and recorded in line with the organisation's recording procedures. If this person is different to the lead person responsible for the issue of forced marriage, their contact details should also be publicised both within the organisation and with appropriate external partners;
• Policies and procedures in place to protect those at risk of forced marriage, both within the organisation and with regard to any external service delivery/provision. Those delivering external service provision must have clear roles and responsibilities, in line with adult and child protection guidance and work collaboratively with specialist support organisations to ensure good practice and to ensure safe and appropriate action is taken;
• Measures to ensure staff have undertaken appropriate training and continuous professional development (CPD) refresh of their knowledge and understanding of the issues;
• Policies and procedures in line with existing legislation and The National Guidance for Child Protection in Scotland^[65], Adult Support and Protection (Scotland) Act 2007: Code of Practice^[66] and Violence against Women Partnership Guidance;^[67]
• Recognition of forced marriage as a potential risk across the lifespan should be included in local processes for adult support and protection and child protection. Local procedures should include referral pathways when forced marriage is identified or suspected, in addition to directing staff to follow existent procedures relating to adult support and protection and/or child protection;
• Child and Adult Protection Committees should ensure these procedures are kept up to date and staff receive relevant training to support their use; and
• Policies and procedures that are updated regularly to reflect any structural, departmental and legal changes.

Roles and responsibilities

89. Chief Executives, Directors and senior managers should ensure that:

• Staff have an awareness and understanding of the nature and impact of forced marriage and how this fits into their organisation's strategy and is relevant to their work;
• Staff understand their role in protecting people under threat of, or already trapped in, a forced marriage;
• Staff have awareness and access to this guidance and the multi-agency forced marriage guidance to support them to understand their statutory responsibilities when protecting individuals threatened with, or already trapped in, a forced marriage;
• Staff know who in their organisation has overall responsibility for forced marriage, and therefore who they should refer any cases to. They should also know when to refer cases to, or consult with, other agencies; and the named external contacts/teams they should contact in these circumstances; and
• Frontline staff dealing with cases of forced marriage have access to, and are strongly recommended to consult, all practice guidelines that have been issued by the Scottish Government.

Clear lines of accountability

90. Chief Executives, Directors and senior managers should ensure that:

• There is a person with lead responsibility within the organisation who is accountable for promoting awareness of forced marriage; and a person with lead responsibility for ensuring policies and procedures are in line with forced marriage guidance. This is likely to be the person with overall responsibility for promoting awareness of, and updating policies and procedures concerning the protection of children/adults at risk, or victims of domestic abuse;
• The designated person has knowledge and understanding of domestic abuse, adult protection or child protection, with experience, expertise and knowledge;
• There are clear routes for the nominated lead or staff to be able to access specialist information, such as from a specialist service (Appendix C), that they can use to approach and discuss difficult cases; and
• There are clear lines of accountability from the frontline staff to senior management.

Victim-centred approach

91. Chief Executives, Directors, Lead Officers for both adult and children's services, and Senior Managers should ensure that:

• Victims are listened to and able to communicate their needs and wishes. This may include the provision of interpretation and translation services;
• Victims are given accurate information about their rights and choices;
• Victims' wishes are considered about the level of intervention they require. Staff must make it absolutely clear to the victim when and why the organisation is going to intervene and what that intervention will look like;
• Staff are aware that relatives, friends, community leaders and neighbours should not be used as interpreters or advocates as they could be amongst the perpetrators of the forced marriage – despite any reassurances from this known person. If it is appropriate to use an advocate, then an independent advocate should be sourced;
• The victim must always be told what information is being shared, with whom it is being shared, who will have access to it, and why it is being shared. Staff should also ask/tell the victim if any other organisations are aware of their circumstances, even if you are not planning to share information with them; and
• Support for the person at risk must be a consideration, and referral to a specialist support agency is advised. Where a person at risk of forced marriage is already working with a support organisation, they should engage with that organisation to understand their assessment of the risk the person faces and if any action has been taken by them, the perpetrator or other agencies to date.

Trauma informed practice

92. Trauma informed practice is an approach to care provision that considers the impact of trauma exposure on an individual's biological, psychological and social development.

93. Delivering services in a trauma informed way means understanding that individuals may have a history of traumatic experiences which may impact their ability to feel safe and develop trusting relationships with services and professionals.

94. Taking a trauma informed approach to supporting children and adults affected by forced marriage enables all those who perform any of the functions under this guidance to better understand the range of adaptations and survival strategies that people may make to cope with the impacts of trauma.

95. Practitioners should be alert to the need to view behaviours that compromise health, wellbeing and safety as adaptations that may have played a useful role in the individual's life in helping them to survive, and cope with, their experiences of trauma.

96. In 2017 Transforming Psychological Trauma: A Knowledge and Skills Framework for the Scottish Workforce^[68] details the specific range of knowledge and skills required across the workforce, depending on their and their organisation's role and remit in relation to people who have experienced trauma. Those with direct and frequent contact with people who may be affected by trauma should be equipped to 'trauma skilled' level of practice. Those professionals with regular and intense contact with people affected by trauma and who have a specific remit to respond by providing support, advocacy or specific psychological interventions, should have adequate training and experience to practice at 'trauma enhanced' level.

Effective inter-agency working, information sharing and confidentiality.

97. The data protection regime in the UK consists of two pieces of legislation: the UK General Data Protection Regulation^[69] (UK GDPR), which replaced the EU GDPR following the UK's exit from the European Union in 2020; and the Data Protection Act 2018^[70], which provides additional conditions and exemptions to the UK GDPR. It also governs processing for law enforcement purposes, in Part 3^[71].

98. The UK GDPR sets out 7 principles by which all personal data should be held. These are:

• Lawfulness, fairness and transparency;
• Purpose limitation;
• Data minimisation;
• Accuracy;
• Storage limitation;
• Integrity and confidentiality (security); and
• Accountability.

99. When considering how they approach data sharing, agencies should consult the Information Commissioner's Office Data Sharing Code of Practice^[72], which is a statutory code of practice and gives information and support to assist organisations in sharing data lawfully. The GIRFEC information sharing guidance may also be useful to refer to for information and support^[73].

100. As the code notes^[74], organisations should approach data protection legislation as a framework to enable fair and proportionate sharing rather than a blocker, particularly in situations where more harm could come to individuals where data is not shared.

101. Agencies should also familiarise themselves with exemptions in the Data Protection Act 2018, which can be applied on a case-by-case basis and can allow for data to be re-used or shared in certain ways in order to protect individuals. A guide to the data protection exemptions can be found on the ICO website alongside examples of the exemptions being applied^[75].

102. Chief Executives, Directors and senior managers should ensure that:

• There are policies and procedures for organisations to work effectively together to protect people facing forced marriage. These procedures are set out in local child and adult protection guidance;
• The policies and procedures include arrangements for sharing information and making referrals, including, where appropriate, with the police, social work, health, and the UK Government's Forced Marriage Unit in line with data protection legislation;
• Staff understand the importance of sharing relevant and proportionate information and engaging with specialist support organisations and other agencies at the earliest opportunity; and
• Staff understand the difference between breaking confidence (involving the family, community members, etc. without the victim's consent), and sharing information with other professionals to protect the individual from significant harm. Local Child Protection, Adult Protection Committees^[76], and Multi-Agency Violence Against Women Partnerships are likely to take a lead role in developing policies and procedures for inter-agency working and information sharing to protect adults and children from harm. It is important to recognise that, while the use and sharing of personal data must be done lawfully, data protection legislation should not be seen as a barrier to protecting at-risk individuals^[77].
• Further information on data sharing can be found in Chapter 3 of the Adult Support and Protection (Scotland) Act 2007: Code of Practice^[78], in Chapter 1, paragraphs 128-153 of the National Guidance for Child Protection 2021^[79] and GIRFEC practice guide 4^[80].

Confidentiality

103. Issues may arise because an individual facing forced marriage may be concerned that if confidentiality is breached, and their family is alerted to the fact that they have sought help, they could be in serious danger. However, those facing forced marriage are often already at serious risk of domestic abuse, honour based abuse, rape, abduction etc. Therefore, in order to protect the individual, consideration should always be given to sharing information with other agencies, such as the police.

104. Confidentiality, privacy, and information sharing are extremely important for anyone threatened with, or already in, a forced marriage. Professionals must be clear about when confidentiality can be offered, and when information given in confidence should be shared.

105. Chief Executives, Directors and senior managers should ensure that:

• Staff understand that the victim's confidence and privacy should be respected at all times. Staff should not approach family, friends, or members of the community without considering the risk of harm and the victim's wishes. Furthermore, individuals in these categories should never be used as interpreters for the victim.
• All records belonging to the victim should be kept secure to prevent unauthorised access by those within the broader community who may potentially pass on confidential information to a victim's family.
• Records should only be available to those directly dealing with the case.
• Staff should also be aware that they, other colleagues within the organisation, or others within the victim's support network may be approached and/or pressurised by a member of the victim's family, a family friend, or a member of the community to give out information. While a third party can request the personal data of a victim on that person's behalf, under the UK GDPR right of access, any organisation presented with a request from a third party has the ability to withhold any information until they are satisfied that the third party is acting on the genuine wishes of the individual. The responsibility for providing this proof sits with the third party.^[81]
• Staff should always ensure the victim knows who has been told about the circumstances of their case, and also made aware of any potential risks should a professional breach confidentiality.

Staff training and awareness raising

106. Chief Executives, Directors and senior managers should ensure that:

• Suitable training and awareness raising is incorporated into existing training within agencies to ensure frontline staff and managers are aware of the issues, and know how to respond quickly and appropriately to individuals threatened with, or already in, a forced marriage.
• Training input should, where possible, be facilitated by a professional who has experience in dealing with forced marriage cases.
• Staff receive updates on issues surrounding forced marriage and honour based abuse within their existing training on domestic abuse and child/adult protection.
• Existing work on social cohesion, equality and community outreach programmes should be used to raise general awareness of forced marriage, and the help and support available, within the local community.

Monitoring and evaluation

107. Chief Officer Groups should consider how they include referral rates and responses to forced marriage in their local data collection on public protection measures, which may sit with adult protection committees or child protection committees.

108. This should include data collection of the number of cases supported, the source of referrals, details about the individual involved (such as their age, ethnicity, gender etc.), together with information about the outcome of the case. This data should be used to inform and improve the response to cases of forced marriage within organisations, as well as giving a clearer indication of the prevalence of forced marriage. Organisations should use and, if required, adapt their existing data collection systems to capture information on cases of forced marriage.

Record keeping

109. Chief Executives, Directors and senior managers should ensure that:

• Staff keep clear, concise records of all actions taken, who took them, and the reasons why particular actions were, or were not taken. There should be a recorded agreement of which agency is to undertake each proposed action together with the outcome of each action in line with local agency recording processes and Guidance.
• If no further action is to be taken, this should be clearly documented together with the reasons.

Risk assessment

110. Chief Executives, Directors and senior managers should ensure that:

Staff within the organisation understand the risks facing victims of forced marriage, their siblings and other family members – including the possibility of honour based abuse, threats to kill, murder, rape, abduction and being abducted overseas.

Their organisational risk assessments are evaluated to ensure that they are appropriate for handling cases of forced marriage and they recognise the potential risk of harm to victims and practitioners. They should also take into account the inherent differences in practice and procedures required from child or adult protection risk assessments.

If child protection or adult support protection procedures are not being followed, a forced marriage risk assessment should be undertaken. If risk assessment is being undertaken under adult support and protection or child protection frameworks, the forced marriage risk assessment should be included within this.

Staff alleviate these risks by undertaking ongoing risk assessments on a case-by-case basis, feeding into multi-agency risk assessment structures to manage any risks identified appropriately. The inherent differences in practice and procedures required from child or adult protection risk assessments should also be taken into account.

Information from support agencies around family/community and/ or risks is obtained and acted upon.

The danger of family counselling, mediation, arbitration and reconciliation

111. Due to the nature of forced marriage and honour based abuse, some of the underlying principles and themes within existing guidance may inadvertently place young people and adults at greater risk of harm. This includes the principle that the best place for them is with their family and the practice of attempting to resolve cases through family counselling, mediation, arbitration and reconciliation.

112. Chief Executives, Directors and senior managers should ensure that:

• Staff have adequate training to understand the risk and danger of family counselling, mediation, arbitration and reconciliation in forced marriage cases or where the possibility of forced marriage is a concern. Staff should be aware that any attempt to invoke any sort of mediation with the victim's family will put them at risk of further emotional and physical abuse.
• Staff understand that in cases of forced marriage, it is important that agencies do not initiate, encourage or facilitate family counselling, mediation, arbitration or reconciliation.
• Staff are aware that, on occasions when an individual insists on meeting with their parents, such a meeting should only take place in a safe location, supervised by a trained/specialist professional, with an authorised accredited interpreter present as parents could attempt to coercively control the individual in their own language. It is important that the interpreter is not from the same community (as communities across the country can be small and well-connected) and to be aware that having accreditation as an interpreter does not ensure the person will have any experience or training that enables them to practice or demonstrate a commitment to equalities, human rights and social justice.
• Staff are aware that allowing a victim to have unsupervised contact with their family can be extremely risky. Families may use the opportunity to subject the victim to extreme physical or mental duress or take them overseas regardless of any protective measures that are in place.
• Staff must also be aware that perpetrators can use emails, phone conversations, and/or texts as a form of mediation with the individual. These modes of communication can be just as threatening. Staff should consider the impact of these forms of communication on the individual and think about how they might support and keep the individual safe if such contact takes place.

Protecting disabled children and adults

113. There have been reports of children and adults with mental health needs, learning and physical disabilities, or additional support needs being forced to marry^[82]. When there are concerns about forced marriage or honour based abuse in relation to a disabled child, child protection procedures apply. Similarly, if an adult is thought to meet the criteria for being an "adult at risk" under Adult Support and Protection legislation, adult support and protection procedures apply. An "adult at risk" means an individual aged 16+ who is at risk of harm, who is unable to safeguard their own well-being, property, rights or other interests, and who is affected by disability, mental disorder, illness or physical or mental infirmity that makes them more vulnerable to being harmed than adults who are not so affected. The decision on whether employment of child or adult protection procedures are most appropriate to protect a 16 or 17 year old is a matter for professional judgment, following consideration of all the relevant circumstances.

114. In those cases where an assessment of capacity has been undertaken and a person is assessed as lacking capacity for welfare and/or financial decisions, considerations should be given to support and intervention available via the Adults With Incapacity (Scotland) Act 2000. Likewise, where an individual has a mental disorder, the Mental Health (Care & Treatment Act) (Scotland) 2003 may offer some protective function. More detail on the application of the legislation is noted below.

115. People with additional support needs could be at risk of forced marriage because they may be reliant on their families for care. Forced marriage may occur as a result of their families trying to secure long-term care for their child. Disabled people, including those with learning disabilities, may have communication difficulties and issues in relation to capacity and therefore may not be able to easily reach out for help if they are at risk of being forced into marriage.

116. In the case of children, the law states that children do not have the capacity to marry under the age of 16 in Scotland, regardless of any disability.

117. Some adults do not have the capacity to consent to marriage^[83]. The Adults with Incapacity (Scotland) Act 2000^[84] can be used to protect adults who lack capacity to consent to marriage while supporting individuals' involvement in making decisions about their lives as far as possible. People with learning disabilities must be free to marry if they have the capacity to consent, but where capacity to consent is lacking, or consent is not freely given, then this represents a forced marriage.

118. Some adults may be unable to consent to sexual conduct and section 17 of the Sexual Offences (Scotland) Act 2009 describes the circumstances in which a mentally disordered person in incapable of consenting to the conduct in Part 1 of the Act. The Act also contains an offence of sexual abuse of trust of a mentally disordered person. In the 2009 Act^[85], "mental disorder" has the same meaning as section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003^[86].

119. The Adult Support and Protection (Scotland) Act 2007^[87] places a duty on local authorities to inquire about the well-being of a person it knows or believes to be an adult at risk of harm, and where it knows or believes it might need to intervene in order to protect their well-being. This would include an adult with a physical or learning disability who has been forced to marry, and allows the local authority to take a range of measures to provide appropriate support and protection. In particular, applications can be made to the sheriff for an assessment order, a removal order or a banning order under that Act.

120. Section 10 of the Adults with Incapacity (Scotland) Act 2000 places a duty on local authorities to investigate any circumstances made known to them in which the personal welfare of an adult seems to be at risk^[88]. Under that 2000 Act a local authority may seek a guardianship order^[89], or an intervention order^[90].

121. Section 33 of the Mental Health (Care and Treatment) (Scotland) Act 2003^[91] places a duty on local authorities to investigate where it believes that a person aged 16 or over has a mental disorder and may be, or may have been, subject to ill-treatment, neglect or some other deficiency in care or treatment. A local authority may apply to court for a warrant for entry to premises, and a mental health officer appointed by the local authority may seek a removal order in respect of that person, from a sheriff, under sections 35 and 293 of the Mental Health (Care and Treatment) (Scotland) Act 2003 respectively^[92].

122. Many of the measures for protecting disabled people at risk of forced marriage are the same as those for non-disabled children and adults. However, disabled people may have particular needs, and face challenges, which may be substantially different from those encountered by other people facing forced marriage. In the context of police interviews, the use of Appropriate Adults guidance^[93] is recommended to assist with communication.

123. Chief Executives, Directors and senior managers should ensure that disabled children, including children with a learning disability, children with additional support needs, and adults at risk of harm receive whatever additional assistance and support they require. Good practice in relation to this assistance and support includes:

• Listening to the adult or child at risk of harm due to disability or other factors and making sure they know how to raise concerns;
• Meeting the care, support and protection needs of all disabled children or adults at risk of harm due to disability or other factors;
• Ensuring that the adult or child at risk of harm due to disability or other factors is involved in any discussions related to support or intervention in their situation. Efforts should be made to ensure that the individual is informed and given agency to be involved in any decision making process. This may require access to supported decision making structures;
• Ensuring the adult or child at risk of harm due to disability or other factors, has access to adults outside the family to whom they can turn to for help;
• Ensuring any communication is accessible to the adult or child at risk of harm due to disability or other factors is paramount. Providing speech and language therapists,^[94] providing alternative and augmentative communication aids, and providing British Sign Language translators or other appropriate support needs to facilitate communication;
• Providing training and raising awareness about forced marriage amongst staff that care for the adult or child at risk of harm due to disability or other factors; and
• Providing an independent advocate to those who would benefit from support to have their views expressed so their needs and wishes are understood and communicated^[95].

124. Practitioners should also be aware that an adult or child at risk of harm due to disability or other factors may already have a care plan, or digital passport, in place. Intervention in cases of forced marriage should take this into account and consider how existing support networks may be utilised to protect the person at risk.

125. Proactive strategies should be used to ensure that disabled people, including those with learning disabilities, are informed and aware of their rights in relation to sexual health and relationships as this could assist them with identifying and seeking help with inappropriate relationships and situations including forced marriage.

126. For more information and good practice guidance on supporting people with learning disabilities, practitioners can access Scotland's learning disability strategy 'The Keys to Life: Improving Quality of Life for People with Learning Disabilities'^[96].