Forced Marriage Statutory Guidance

Appendix B - Definitions

The list below includes both legal and non-legal definitions and is designed to be a reference point for some of the terms within this guidance.

Adult

A person aged 16 or over, or a person aged 18 or over, depending on the legal context (see also below the definition of child, children and young people).

Adult at risk

The Adult Support and Protection (Scotland) Act 2007^[143] 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.

'Risk of harm' for these purposes is if:

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

Arranged marriage

An arranged marriage is one in which the families of both spouses are primarily responsible for choosing a marriage partner for their child or relative, but the final decision as to whether or not to accept the arrangement lies with the potential spouses: both spouses give their full and free consent. The tradition of arranged marriage has operated successfully within many communities for generations.

Child, children and young people

The protection of children and young people includes unborn babies, and children and young people under the age of 18 years. UNCRC rights apply to anyone under the age of 18. The UNCRC (Incorporation)(Scotland) Act 2024, which seeks to incorporate the UNCRC into Scots law, defines child as "every human below the age of eighteen years". The Act incorporates the UNCRC within domestic law as far as possible within the legislative competence of the Scottish Parliament.

It is essential that Child Protection Committees and Adult Protection Committees work together to best protect children and young people at key transition periods, for example, transition from children's to adult's services. The independent legal status of a child commences at birth. In any action to safeguard and protect an unborn child, the needs and rights of the mother must be taken into account. The needs, rights and mutual significance of siblings will be considered in any process that has a focus on a single child.

While child protection procedures may be considered for any person up to the age of 18, the legal boundaries of childhood and adulthood can be differently defined in different legal contexts. For more detail, see the National Child Protection Guidance (updated 2021), in particular paragraphs 1.7 to 1.22^[144].

Domestic abuse

The Domestic Abuse (Scotland) Act 2018^[145] provides that a person is considered to have committed an offence of domestic abuse under that Act if:

a) The person ("A") engages in a course of behavior which is abusive of A's partner or ex-partner ("B"), and

b) Both of the further conditions below are met.

The further conditions are:

a) That a reasonable person would consider the course of behaviour to be likely to cause B to suffer physical or psychological harm,

b) That either

i. A intends by the course of behaviour to cause B to suffer physical or psychological harm, or

ii. A is reckless as to whether the course of behaviour causes B to suffer physical or psychological harm.

In the further conditions, the references to psychological harm include fear, alarm and distress. For more on this statutory definition, please see the Domestic Abuse (Scotland) Act 2018^[146].

Forced marriage

The Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011^[147] defines a forced marriage as a marriage conducted without the full and free consent of both parties, and where "force" is a factor (it is important to note that in the case of children and young people under 16, and some adults, consent cannot be given). Force can be coercion by physical, verbal or psychological means, threatening conduct, harassment or other means. It is also force to knowingly take advantage of a person's incapacity to consent to marriage, or to understand the nature of the marriage.

Section 122 of the Anti-social Behaviour, Crime and Policing Act 2014^[148] defines an offence of forced marriage under the law in Scotland if a person uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without full and free consent. Furthermore, in relation to a victim who is incapable of consenting to marriage by reason of mental disorder, the offence 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 of coercion).

For the more on the legal definition, see the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011^[149] and the Anti-social Behaviour, Crime and Policing Act 2014 ^[150].

Gender based violence

The Equally Safe Strategy^[151] sets out a shared understanding of violence against women and girls which is based on the United Nations Declaration on the Elimination of Violence Against Women (1993. This says 'Gender based violence is a function of gender inequality, and an abuse of male power and privilege. It takes the form of actions that result in physical, sexual and psychological harm or suffering to women and children, or affront to their human dignity, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. It is men who predominately carry out such violence, and women who are predominately the victims of such violence. By referring to violence as "gender based" this definition highlights the need to understand violence within the context of women's and girl's subordinate status in society. Therefore, such violence cannot be understood in isolation from the norms, social structure and gender roles within the community, which greatly influence women's vulnerability to violence.'

Honour based abuse

The terms 'honour based abuse,' 'honour crime,' and 'izzat' embrace a collection of practices used to control behaviour within families, communities or other social groups, to protect perceived cultural and religious beliefs and/or 'honour.' Such abuse can occur, for example, when perpetrators perceive that a relative has shamed, or may potentially shame, the family and/or community by breaking their honour code. This abuse can take many forms, including threatening behaviour, emotional blackmail, assault, rape, abduction, forced marriage, confinement and 'honour killing.'

Perpetrator

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

Protected Person

The Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 defines a "protected person" by virtue of section 1(1) of that Act^[152], which provides that:

"The court may make an order for the purposes of protecting a person (a "protected person")

(a) from being forced into a marriage or from any attempt to force the person into a marriage, or

(b) who has been forced into a marriage."

Relevant third party (RTP)

Under the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011^[153] a relevant third party (RTP) can apply for a Forced Marriage Protection Order without the permission of the court (see page 18 of this guidance). RTPs are specified as a local authority, the Lord Advocate, the chief constable of the Police Service of Scotland, and others specified by order made by the Scottish Ministers. Any other third party can apply for a FMPO but they need the court's permission to do so.

Violence against women and girls

The Scottish Government defines forced marriage as a form of violence against women. The Equally Safe Strategy^[154] definition of violence against women and girls includes the actual and threat of:

• physical, sexual, psychological, emotional, and financial abuse occurring in the family, within the general community, and in institutions in both physical and digital spaces and places
• domestic abuse/coercive controlling behaviours, stalking, rape, incest, sexual harassment, bullying, and intimidation
• commercial sexual exploitation (CSE), including prostitution, lap dancing, stripping, pornography
• human trafficking, including for the purposes of domestic servitude, sexual exploitation and child criminal exploitation, which may include gangs and organised criminal networks
• child abuse occurring within family settings, including domestic abuse, and sexual abuse by male family members including siblings
• child sexual abuse and exploitation including the production and sharing of indecent images of children
• honour-based abuse, including forced marriages, female genital mutilation (FGM), dowry abuse and 'honour based' coercive control and killings

Victim

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