Forced marriage: statutory guidance

Chapter 6

Specific issues to be considered by agencies working with, or providing services to, adults and adults at risk

Existing multi-agency guidance and provisions concerning adults

156. There are existing multi-agency policies and procedures to protect adults at risk of harm. These have been developed at a local level by Adult Protection Committees whose membership includes: local authority staff, NHS, Police and other agencies. Governance arrangements are in place with Chief Officer Groups for Public Protection. There is also legislation which exists to help and support adults at risk:

• The Mental Health (Care and Treatment) (Scotland) Act 2003^[114]
• The Adults with Incapacity (Scotland) Act 2000^[115]
• The Adult Support and Protection (Scotland) Act 2007^[116]

157. The Adult Support and Protection (Scotland) Act 2007 (the 2007 Act)^[117] sets out the roles and responsibilities of all agencies involved in protecting adults at risk, and is the main point of reference for Adult Protection Committees. Each local Adult Protection Committee is responsible for developing its own processes using both the Guidance for Adult Protection Committees^[118] and the Adult Protection Code of Practice (updated 2022)^[119].

158. The code and guidance should be used in conjunction with other relevant codes of practice as appropriate, such as:

• the code of practice for the Mental Health (Care and Treatment) (Scotland) Act 2003;^[120]
• the code of practice for the Adults with Incapacity (Scotland) Act 2000;^[121] and
• the code of practice for Social Service Workers and Employers of Social Service Workers.^[122]

159. Section 3(1) of the 2007 Act defines "adults at risk" as individuals aged 16 or over who:

• are unable to safeguard their own well-being, property, rights or other interests; and
• are at risk of harm; and
• 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.

160. The presence of a particular condition does not automatically mean an adult is an "adult at risk." Someone could have a disability and be able to safeguard their well-being. It is important to stress that all three elements of this definition must be met. It is the whole of an adult's particular circumstances, which, when combined, make them more vulnerable to harm than others. Furthermore, the first element of the above three-point criteria relates to whether the adult is unable to safeguard their own well-being, property, rights and other interests. 'Unable' is not further defined in the 2007 Act or guidance, but is defined in the Oxford English Dictionary as 'lacking the skills, means or opportunity to do something.' A distinction should therefore be drawn between an adult who lacks these skills and is unable to safeguard themselves, and one who is deemed to have the skill, means or opportunity to keep themselves safe, but chooses not to do so. An adult may be considered unwilling rather than unable to safeguard themselves and so may not be considered an "adult at risk".

161. This distinction requires careful consideration. All adults who have capacity have the right to make their own choices about their lives and these choices should be respected if they are made freely. However, for many people the effects of trauma and/or adverse childhood experiences may impact upon both their ability to make and action decisions, and the type of choices they appear to make. In this context, it is reasonable to envisage situations in which these experiences, and the cumulative impact of them through life, may very well have rendered some people effectively unable, through reliable decision making or action, to safeguard themselves. Similar considerations apply to coercive control or undue pressure. In such situations the control exercised over a vulnerable person may also effectively render them unable to take or action decisions that would protect them from harm.

162. It should be made clear that while pressure and coercion from family and community brought upon the victim may interfere and impede with their decision making, this does not necessarily make them an "adult at risk". The provision of support, space and discussion to consider options and choices and the ability to be protected by the intervention of public authorities and support organisations will enable victims to better understand the issues facing them and the protections that can be put in place.

163. If the victim of a forced marriage is assessed as incapable of protecting their personal or financial welfare, grounds for protection under the Adults with Incapacity (Scotland) Act 2000^[123] may be relevant – i.e. welfare powers granted to another individual under an existing power of attorney may be exercised once capacity is lost, or a guardianship order or an intervention order might be sought. The local authority might be required to act as guardian^[124]. Courts can authorise local authorities to supervise welfare attorneys and welfare interveners, and the Mental Welfare Commission for Scotland,^[125] and the Office of the Public Guardian Scotland^[126] have a role in ensuring individuals' rights are protected, and also in investigating any concerns^[127].

164. The Mental Health (Care and Treatment) (Scotland) Act 2003^[128] gives a person with a mental disorder a legal right to independent advocacy, and the Adult Support and Protection (Scotland) Act 2007^[129] places a duty on Council Officers to consider the importance of providing independent advocacy services where a local authority considers it needs to intervene in order to protect an adult at risk of harm. The meaning of independent advocacy services in the 2007 Act is that given in section 259 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act). The 2003 Act Code of Practice volume 1^[130]states that:

• Independent advocacy providers cannot be involved in the welfare, care or provision of other services to the individual for whom they are providing advocacy.
• Independent advocacy should be provided by an organisation whose sole role is independent advocacy or whose other tasks either complement, or do not conflict with, the provision of independent advocacy.

165. Advocacy safeguards people who are vulnerable and discriminated against, or those whom services find difficult to serve. The legal right of access to independent advocacy in the mental health legislation only extends to persons with a mental disorder. However, the position is different under the Adult Support and Protection (Scotland) Act 2007. The duty placed on a local authority to have regard to the importance of the provision of appropriate services, including independent advocacy services, applies where a local authority decides to use its powers under that Act^[131]. The principles in section 2 of the Adult Support and Protection (Scotland) Act 2007^[132] also need to be considered. It may well be that independent advocacy, in a particular case, will assist in ascertaining an adult's wishes and feelings, or enable an adult to participate as fully as possible. For further information about advocacy, please refer to the Scottish Independent Advocacy Alliance.^[133]

166. Public Health Scotland maintain a Gender Based Violence resource which gives guidance to support the identification and management of gender based violence across NHS Scotland^[134].

167. The Scottish Government's Equally Safe Strategy^[135] to eradicate violence against women sets out a plan to create a strong and flourishing Scotland where all individuals are equally safe and respected, and where women and girls live free from all forms of violence and abuse, and the attitudes that help perpetrate it. This includes objectives related to forced marriage and other forms of honour based abuse.

168. Multi-Agency Violence Against Women Partnerships (VAWPs) have a responsibility for the implementation of the Equally Safe Strategy in local areas, bringing services together that have an interest in, or responsibility for, work to address men's violence against women. The intention is that action to tackle violence against women is integral to the core activities of local agencies and structures. The purpose of the Violence Against Women Partnership Guidance^[136] is to support all VAWPs to work consistently with the government's strategic direction and to develop effective local strategies and activities to tackle violence against women in all its forms.

169. Although we know that men, and male children and young people, can be victims of forced marriage, it should be dealt with within the context of violence against women and domestic abuse; and in the case of adults at risk, adult protection. Agencies should adhere to the good practice set out in policies and procedures concerned with domestic abuse and adults at risk as the most effective way to tackle forced marriage. Practitioners should also ensure that they are aware of the need to protect any children they may come into contact with in the course of their support of adults at risk of forced marriage.

Protecting adults at risk by sharing information when a crime may have been, or may be, committed

170. Forcing a person into marriage became a criminal offence in Scotland on 30 September 2014 under section 122 of the Anti-Social Behaviour, Crime and Policing Act 2014. In addition to this criminal offence and potentially criminal penalties for the breach of any FMPO in place, perpetrators, usually the parents or family members – could be prosecuted for offences including assault, plagium,^[137] threats to kill, abduction and murder. Sexual intercourse without consent is rape, regardless of whether this occurs within a marriage.

171. The Adult Support and Protection (Scotland) Act 2007^[138] states that a council must make inquiries about a person's well-being, property, or financial affairs if it knows or believes that:

• (A) the person is an adult at risk, and
• (B) that it might need to intervene (by performing functions under that Act or otherwise) in order to protect the person's well-being, property or financial affairs.

172. Section 5(3) of that Act places a duty on certain public bodies or office holders who know or believe that a person is an adult at risk of harm and that action needs to be taken to protect them from harm, to make a referral by reporting the facts and circumstances of the case to the council for the area in which the person is considered to be located. Public bodies should ensure that their staff are aware of their duty to refer and co-operate, and encourage vigilance in relation to adults who may be at risk of harm^[139].

173. However, if the person is not an adult at risk in terms of the definition under the Adult Support and Protection (Scotland) Act 2007^[140], practitioners may refer to the Mental Health (Care and Treatment) (Scotland) Act 2003^[141] and interventions or guardianship orders through the Adults with Incapacity (Scotland) Act 2000^[142] to protect the person. An Adult Support and Protection referral should be made if one believes that the criteria are met for referral, even if lacking some information. It is not the referrer's responsibility to confirm that the adult meets the three-point criteria described in paragraph 160 it is enough that there is a belief that the adult meets the criteria to warrant an Adult Support and Protection referral. Any information that can be provided at the referral stage will assist the local authority in undertaking adult protection inquiries.

174. Chief Executives, Directors and senior managers should ensure that staff receive the appropriate training in order to:

• Recognise the importance of sharing information with other agencies at the earliest opportunity.
• Understand the difference between breaking confidence (involving an adult at risk's family without consent) and sharing information with other professionals to prevent the person being at risk of significant harm.
• Understand the importance of involving specialist support agencies and taking on board advice regarding family/community dynamics and risks.