Understanding forced marriage in Scotland

5: The impact of civil and criminal legislation for forced marriage

In efforts to respond to forced marriage the Scottish Government has introduced both civil and criminal legislation relating to forced marriage. The Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 provides civil protection in the form of Forced Marriage Protection Orders ( FMPO) for those at risk of forced marriage as well as those already in forced marriages. Breaching a FMPO is a criminal offence. A specific criminal offence of forcing someone to marry in Scotland was created under section 122 of the Anti-Social Behaviour, Crime and Policing Act 2014 and came into force on 30th September 2014.

5.1 Civil legislation

A substantial minority of professionals interviewed reported that they did not have much information about potential civil remedies:

I don't know a lot about that, no.
Case study area 2, third sector organisation 2A

I am aware of it, but I have not fully read it.
Case study area 2, third sector organisation 2D

However, when the legislation was explained, most professionals interviewed supported the creation of civil legislation. Most of these respondents also said they would routinely inform victims of forced marriage of FMPOs, although respondents also reported that this should be done in a sensitive manner, where appropriate rather than routinely. Just under half (47%) of organisations who participated in the survey and who provided forced marriage support reported that FMPOs were discussed, and discussed successfully, with victims; however 20% indicated they were not discussed at all. One organisation indicated that they were discussed but rarely successfully and just over a quarter (27%) felt unsure as to whether they were discussed or not. One organisation took the view that:

If we can support a woman without a FMPO, we will.
Case study area 5, third sector organisation 5B

But generally, the respondents reported that a FMPO is a positive tool of support not only for the safety of the victims, but as a resource for practitioners. One respondent described it as:

…brilliant…deterrent for parents and 'safety net' for victims.
Case study area 5, third sector organisation 5B

The FMPO's capacity to act as a 'safety net' was central to one survivor who did lodge an FMPO. Her family members have challenged it, and at the point of the interview the case was still ongoing, but she reported feeling more protected having the interim order in place:

It feels a lot safer just having the interim order. I obviously don't like that it's temporary but it does help quite a lot.
Survivor 5

I would have considered it because I really didn't want to get married…but I might have even threatened my parents with it, saying 'listen, I don't want to do this and there's legislation' I think.
Survivor 2

Other survivors also largely supported civil remedies

[in relation to FMPOs] Oh, that's really good, I mean that is really good. At least it's the law going to deal with them so the child doesn't have to marry.
Survivor 6

Service providers generally spoke of victims being routinely informed about FMPOs, but being reluctant to pursue it:

She was baffled by it at the start. She didn't want anything legal against her family, and then obviously with it making them aware where she was living, she didn't want it either.
Case study area 2, third sector organisation 2A

However, most survivors were concerned about elements that included criminalisation (discussed below). In general, there was widespread support for civil remedies, but those who had experience of the process discussed a number of difficulties of implementation.

Difficulties of implementation

Whilst the idea of civil legislation was widely welcomed, its implementation raised several issues that act as a deterrent to using the legislation. Interviews with professionals showed that it is a minority of organisations who have experience of dealing with forced marriage, and these professionals articulated a nuanced and sophisticated view of the civil legislation. In particular, reference was made to the decision in the case of The City of Edinburgh Council v S (Sheriff Court, Edinburgh, 3 March 2015 ^[5] ), which was thought to make it more difficult to bring future cases forward. One participant's reading of the judgement was that it shifted the evidential threshold required in civil legislation to the test applied in criminal proceedings, and that it minimised the violence experienced by the women because of cultural framing of this behaviour. It was argued that this would probably make it more difficult for local authorities to apply for FMPOs.

They [social workers] would be very nervous to use the law, because the test applied is 'beyond reasonable doubt' rather than 'balance of probabilities', and also from a very cultural perspective rather than a GBV perspective.
Case study area 4, third sector organisation 4B

This suggests that how the civil legislation is interpreted is central to its successful up-take. Given the difficulties that victims have in coming forward and in pursuing legal remedies, a refusal to grant an order or an interim order on the basis of insufficient evidence, as well as potentially not stopping that forced marriage going ahead, may also deter victims from pursuing legal remedies in the future. Some respondents were of the view that that too high a threshold has been applied for sufficient evidence to grant a FMPO, and that this is due to some legal professionals conceptualising forced marriage as an event rather than a process of 'grooming' or socialisation.

The biggest flaw we have around our understanding of forced marriage and how the law has been used in specific cases, particularly the legal profession's understanding, is that they are too focused on a wedding, and we don't see risk as a wedding. Because they are saying 'where is the groom?' and 'where is the bride?' and 'when is the wedding date?', and I find that highly problematic. But I think social workers, and to some extent police officers, are increasingly able, where they have had some intervention and discussion on it, able to look at FM more as a process rather than an event.
Case study area 4, third sector organisation 4B

Finding an experienced solicitor was also an issue for Survivor 5, whose situation was complicated by her immigration status:

We were still trying to get things moving for the Forced Marriage Protection Order. I think, also because my solicitor wasn't experienced about matters and I think there were very few cases at the time so very few people had knowledge about Forced Marriage Protection Order as well, so most of the time were trying to find a good solicitor who… who knew about the Forced Marriage Protection Order.
Survivor 5

Other professionals discussed that:

There needs to be an easier pathway to implement the legislation, because right now it requires umpteen meetings, numerous meetings to decide who's going for a FMPO. So for me it should be as easy as getting a children's order but it's not.
Case study area 5, third sector organisation 5B

Others doubted the legal process and judicial understanding of forced marriage:

Even if we get it all the way to court, what is the understanding of the judge?
Case Study area 5, third sector organisation 5B

Onus of responsibility

The multi-agency statutory guidance on forced marriage makes it clear that local authorities have an obligation to offer support to those experiencing forced marriage. However, it appears that some local authorities are unwilling to discharge their duties as Relevant Third Parties under the forced marriage legislation, or are not aware that they do, in fact, have such duties. Respondents' experience is that local authorities are only willing to become involved in seeking a FMPO through the courts, or offer support, where they are compelled to intervene under other existing statutory obligations, namely those involving child and adult protection. Responses under other statutes are taking precedence over responses due under the forced marriage legislation.

The survey component of the study revealed that most reported cases of forced marriage in Scotland involved people over 16, so processes to support adult victims of forced marriage are crucial. The Adult Support and Protection (Scotland) Act 2007 stipulates the roles and responsibilities of all agencies regarding adult protection, but each local Adult Protection Committee is responsible for developing their own guidance and training. Section 3(1) of the 2007 act defines 'adults at risk' as adults who i) are unable to safeguard their own well-being, property rights or other interests; ii) are at risk of harm; and iii) 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. All three criteria have to be met to trigger access to adult protection.

It's very, very difficult…there's criteria that have to be filled as far as social work are concerned and your typical, if you can call it that, forced marriage victim, will probably not tick correct criteria for that…if it's an adult I mean.
Case study area 5, Police

A number of interviews with professionals and the policy analysis illustrated a lack of robust local authority procedures for supporting adult victims of forced marriage who have capacity ( i.e. who do not meet the criteria to trigger access to adult protection).

Forced marriage per se does not, of course, elicit an automatic adult protection response, unless the legislative criteria of the 2007 Act are met. However, a common perception was that the local authority would only intervene in cases of forced marriage where an adult lacked capacity or where a child was being forced into marriage. Importantly, the 'capacity', or otherwise, of a person at risk of forced marriage should not be seen as a barrier to local authority intervention, as to do so would further undermine those at risk. The issue of 'capacity' in this sense is, in fact, immaterial since local authorities already have the power to act in relation to adults with capacity, under the Relevant Third Party provisions of the Forced Marriage legislation.

However, a few participants also discussed that one's capacity to consent to a forced marriage might be compromised even without other risk factors. Both the professionals quoted below had direct experience of supporting a victim of forced marriage, and were arguing for a different understanding of capacity than that stipulated in the 2007 Act:

Does this person have capacity to consent in the context of her family?
Case study area 4, third sector organisation 4B

…it's a different scenario, it's not like the person's not able to make a decision like…you know, lacking capacity…what they're having to do is to turn their whole…upbringing upside down and say 'I can no longer be…forced into certain situations that I don't want…they're going against the family, there's notions that they've been brought…of dishonouring the family…completely alien to them to do that…I think it's a far more difficult situation for an adult than a normal…you know, lack of capacity as …I would look at it, where someone can't decide on a decision
Case study area 5, social worker

However, as illustrated above, there is confusion about what the appropriate local authority response should be towards victims of forced marriage, despite the forced marriage legislation being clear that local authorities are empowered to intervene under the Relevant Third Party provisions. The misconception that local authorities can intervene only if there are child or adult protection matters needs to be addressed as a matter of priority. The current situation leaves the onus of responsibility for pursuing a FMPO either with another third party to apply on their behalf and meet the costs, or, in the majority of cases, with the victim. Hence, if the local authority considers that it has no locus to act in terms of adult protection and the adult at risk of forced marriage is ineligible for civil legal aid to pay for their application, then they will be required to pursue the FMPO personally (albeit with the opportunity to access support in doing so from the various organisations mentioned). In essence, they will be 'largely on their own', as explained by this police officer:

… a stumbling point for females who have capacity …is that they…have to apply…make that application on their own…in their own name…and finance it.
Case study area 4, Police

The bigger reason is probably that people don't understand the risk and how forced marriage plays itself out and also we are still in an environment where it is only when the young person or the adult at risk says 'I'm at risk' that's when people are getting involved so they find it easier when the child is defining it and its more complicated or difficult to see the continuum of control and abuse that leads to and that is not happening yet and if that was recognised we might use the legislation better.
Case study area 4, third sector

At a time when victims are feeling vulnerable and when it appears that legal expertise in this field is relatively new, the notion that a victim might pursue a FMPO on their own is doubtful. In a similar vein, interviews with professionals highlighted that any breaches of FMPOs have to be acted upon by the victim in terms of re-contacting the relevant authorities. The following quote advocates the importance of being aware of the elements of actual or implied force, threats, manipulation and control, enabling earlier intervention and support.

Given the identified lack of public awareness of forced marriage, it is difficult to envisage victims coming forward and self-identifying as victims of forced marriage in this context.

As emphasised above local authorities already have the power to act in relation to adults with capacity, under the Relevant Third Party provisions of the Forced Marriage legislation. Therefore, one potential way of ensuring that these powers are exercised consistently would be to strengthen the existing forced marriage statutory guidance, to make it clear that local authorities are obligated to provide support (legal or other) when any adult or child at risk of forced marriage is identified. This should include cases where the adult concerned has capacity, and also those where the adult concerned does not want to proceed to a FMPO, but does require other forms of support: emotional support and safety.

Maintaining confidentiality

One survivor reported that, while she was pursuing a FMPO, her family had succeeded in extracting information about the survivor, including her whereabouts, from statutory sector professionals involved in her case. This example serves as a reminder to uphold the highest professional standards and to recognise the lengths to which perpetrators of forced marriage will go to undermine the victim. If the victim is pursuing a FMPO under her own steam, then the application for the Order, as part of the court process mean that documents sent to the perpetrators and their lawyers, will reveal her address, unless the solicitor is sufficiently aware, or is so instructed by the victim, and possibly the organisation supporting her, (depending on their own understanding of legal process and organisational-generated risk) to put her address as c/o the solicitor. Failure to understand the need for confidentiality and to 'think outside' routine procedures when dealing with forced marriage and information sharing increases risk to the victim's safety and well-being. Victims' concerns about the potential for confidentiality to be compromised therefore represent a further barrier to them pursuing FMPOs.

5.2 Criminal legislation

Most respondents from the interviews with professionals described the criminal legislation as a positive step forward in tackling forced marriage:

It shows that the government are taking the matter seriously, that they are in tune with the minority population, that they understand certain issues
Case study area 4, legal professional 4A

Survivor 5, who had an interim order FMPO, also advocated criminalisation, particularly as an instrument of last resort:

I think it's kind of a good idea because, I hope, and I don't want anyone to be put behind bars but just making it a civil case, giving them a fine or something like that, it's not really going to stop them. I think when you've exhausted every other option then that's the only option you have left…
Survivor 5

However, respondents also reported that the move to criminalise carries risks and new dangers for victims. For instance, some respondents reported that criminalisation will not increase the number of victims coming forward:

Forced marriage shouldn't be criminalised … we don't think it will bring any more people forward
Case study area 5, third sector organisation 5B

The danger is when you criminalise something, particularly something of this sort, that it tends to go underground a lot more. The majority of victims that are going to come forward, their perpetrators are going to be, for example, parents or guardians or elderly, siblings and it could be very difficult for victims to speak up.
Case Study area 4, legal professional 4B

The majority of service providers discussed victims' reluctance to use legal measures, and this was echoed by most of the survivors (apart from Survivor 5), who described their views on criminalisation as 'definitely not' (Survivor 8). The potential criminalisation of perpetrators, which are most likely to be parents, was reported as the main issue:

… it's very difficult to get anyone to actually tell you that that is what's happening to them purely because they know that someone in their family or whatever is going to be criminalised for that. And that's where the difficulty comes in.
Case Study area 5, Police

Can I prosecute my mum? Can I prosecute my dad? Can I face the fact that my dad might go to prison?
Case study area 2, third sector organisation 2A

Because you love them, you know, there's no way you're gonna, I don't know, put a criminal record against them or want to do something that will, you know, they get letters through the courts or anything.
Survivor 1

Survivors were generally supportive of some form of legal protection, but were not convinced that criminalisation is an appropriate response or something that victims would consider, due the ramifications of pursuing this. Referring to civil protection, this survivor reported that she would have used it:

An Act where it would make an offence for them to take me out of the country, I would definitely, I would have gone for that.
Survivor 3

But in relation to criminalisation, she continues:

Whereas the prison thing… I'm thinking it from my emotional lens, you don't want people that you care for to be sent to prison…Because you're in that group, you're going to be, feel pressure from them… everybody saying 'don't do that, don't do that'.
Survivor 3

Other than such pressure, both professionals and survivors mentioned the fear of ostracisation and isolation as a barrier to using forced marriage criminal legislation.

Summary

There was widespread support for civil remedies for dealing with Forced Marriage from professionals interviewed and survivors. A number of issues were identified with regard to the implementation of civil remedies. These related to:

i) a lack of consensus about what constitutes 'sufficient' evidence to justify granting a Forced Marriage Protection Order

ii) the onus of responsibility being placed on the victim, particularly where the victim is an adult who does not meet the criteria for accessing adult protection

iii) confidentiality of the victim not always being maintained

In relation to criminalisation, most professionals interviewed thought it sent a strong message to the public that forced marriage was unacceptable in Scotland. However, many professionals also raised concerns about the potential for forced marriage to 'go underground', as victims would not wish to criminalise their families. It is too early to say whether this position is justified. All survivors welcomed legal protection but most were not supportive of criminalisation. However, one survivor who had pursued an FMPO stated that criminal procedures should be used, but only as a last resort.