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Addressing Forced Marriage Issues in South Asian Communities: Legal, Cultural, and Policy Perspectives

Introduction

Forced marriage can be defined as a marriage of a person where such a person is made to marry against his or her will. In other words, such marriage is without the consent of the person. The essay will walk through the various elements of a forced marriage and the complexities in the legal system associated with defining forced marriage. It will further explain the cultural and traditional set up associated with South East Asian communities. Instances of family values and traditions, cultural practices and similar factors playing a role in forced marriages will also be laid out.

It will also discuss the legislative and policy efforts of the government bodies put in place to tackle issues related to forced marriages. Principal legislations, such as, the Forced Marriage Civil Protection Act 2007 and The Anti-social Behaviour Crime and Policing Act 2014 will be discussed here. Certain other associated legislations will also be considered and mentioned in the essay.

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Besides the legislations, the efforts of the government and private agencies will also be dealt with in this essay. Roles of the Crown Prosecution Services in issues relevant to guidance on issues related to forced marriage will be discussed here. In addition, the role of non-profit organisations in creating awareness about issues and problems related to forced marriage and their role in responding to situations involving forced marriage cases will also be discussed.

This essay will also consider the secondary literature and primary studies to understand the problem of forced marriages in South Asian communities in England and Wales. This essay will deal with the various elements associated with forced marriage and the complexities associated with tackling the issues arising from it.

Elements of Forced Marriage

In England and Wales, the problem of forced marriages has become an issue that has gained national prominence. Certain communities are found to be involved in the practices of forced marriages, with reported incidents of honour killings. The government has given attention to the problem of forced marriage, and had defined forced marriage as:

“You have the right to choose who you marry, when you marry or if you marry at all.

Forced marriage is when you face physical pressure to marry (eg. threats, physical violence or sexual violence) or emotional and psychological pressure (eg. if you’re made to feel like you’re bringing shame on your family).”

The government, herein, identifies the factors of physical, emotional and psychological pressure that may coerce a person into a forced marriage. Similar recognition is provided to ‘coercion’ under Section 1 of the Forced Marriage (Civil Protection) Act 2007. It defines “force” as follows:

“Force is defined to include threats or other psychological means and may be directed against someone other than the victim.”

It is stated that there are mostly three forms of forced marriage in the UK: (i) where there is a fear of being forced to marry in the UK or overseas; (ii) where there is already a forced marriage in the UK or overseas; and (iii) where either of the spouse has come to the UK due to a forced marriage. Further, a marriage without consent or where consent is obtained through coercion or exercise of undue influence also comes under the definition of forced marriage. The essentiality of consent is evident in that the Marriage Act 1949 considers a free and voluntary consent as a condition for a valid marriage. In Hirani v Hirani, it has been held that the test for whether the

  1. C Julios, Forced Marriage and 'Honour' Killings in Britain: Private Lives, Community Crimes and Public Policy Perspectives (Oxon: Routledge 2016).
  2. GOV.UK “Forced Marriage,” accessed
  3. The Family Law Act 1996, Section 63A.
  4. Refuge, ‘Forced Marriage in the UK’, accessed .
  5. Hyde v Hyde and Woodmansee, (1866) LR 1 P&D 130.
  6. [1983] 4 FLR 232.

It is stated that there are mostly three forms of forced marriage in the UK: (i) where there is a fear of being forced to marry in the UK or overseas; (ii) where there is already a forced marriage in the UK or overseas; and (iii) where either of the spouse has come to the UK due to a forced marriage. Further, a marriage without consent or where consent is obtained through coercion or exercise of undue influence also comes under the definition of forced marriage. The essentiality of consent is evident in that the Marriage Act 1949 considers a free and voluntary consent as a condition for a valid marriage. In Hirani v Hirani, it has been held that the test for whether the consent was freely given or given under duress was not only fear of life and liberty but “whether the mind of the applicant victim has in fact been overborne, howsoever that was caused.” In Mahmood v Mahmood, where consent was given under fear of disowning from family, it was held that there was sufficient duress for vitiating consent. Similarly, in Mahmud v. Mahmud, consent was held to be vitiated by pressure including allegations that the refusal to marry by the appellant caused his father’s death and he was bringing shame and degradation on his family. In SH v NB, physical violence by the father, emotional blackmail, pressure and death threats was held to have vitiated the consent of his daughter.

As per the essential validity test laid down in Wilkinson v Kitzinger (No 2), the court observed that the capacity of the parties to marry is generally governed by each party's ante‑nuptial domicile. This has also been the position of the court in Padolecchia v Padolecchia. It was held that the courts will judge the matter of capacity by reference to the intended matrimonial home. In Vervaeke v Smith (Messina and A-G intervening, it was held that the courts may adjudge the matter of capacity by reference to the jurisdiction with which the marriage is adjudged to have its most substantial connection. In this case, the parties were both domiciled in England and Wales and, following their marriage, returned to live here. Therefore, their capacity to marry was held to be governed by the law of England.

The Crown Prosecution Services, on its Guidance regarding honour based violence and forced marriages, provides a list of forced marriage situations, which include: harassment, kidnap, blackmail, false, imprisonment, common assault, actual/grievous bodily harm, threats to kill, child abduction, rape or other sexual offences, immigration offences, fraud, marriage offences, people trafficking, and controlling, causing or inciting prostitution. These are the various situations, which may be involved in a case where a person has been forced to enter a marriage against their will.

  1. [1993] SLT 589.
  2. [1994] S.L.T. 599.
  3. (2009) EWHC 3274.
  4. [2006] EWHC 2022 (Fam).
  5. [1968] P 314.
  6. [1983] AC 145.
  7. Crown Prosecution Services, ‘Guidance regarding honour based violence and forced marriages’, accessed .

South Asian Communities

Incidence of forced marriages is reportedly higher in South Asian communities. The statistics maintained by the Forced Marriage Protection Unit (FMU) in 2012 provides the following:

“The FMU gave advice or support related to a possible forced marriage in 1485 cases…. The FMU handled cases involving 60 different countries, including Pakistan (47.1%), Bangladesh (11%), India (8%), Afghanistan (2.1%), Somalia (1.2%), Turkey (1.1%), Iraq (1%), Iran (0.9%), Nigeria (0.9%), Sri Lanka (0.9%), Egypt (0.6%), Saudi Arabia (0.6%), Yemen (0.6%), The Gambia (0.5%), Morocco (0.5%), and Ukraine (0.5%). The origin was unknown in 7.7% of cases.”

As these statistics demonstrate, the maximum number of forced marriage cases handled by the FMU is from South Asian communities, wherein Pakistan, Bangladesh and India combined are 66 % of the total statistics. Pakistan shows the maximum incidence of forced marriage at 47.1% followed by Bangladesh and India at 11 % and 8 % respectively. Also, a 2008 FMU report revealed that around 12 per cent of cases referred to the FMU in 2008 involved women from Africa, the Middle East, Europe and East Asia.

Determining the presence of free and voluntary consent no longer remains a simple test to decide upon the validity of a marriage. There are aspects of social and cultural complexities that are bound to the consent. These factors act as deterrents in determining absence or presence of consent or coercion or similar pressure in a marriage. There can be many factors that motivate perpetrators of this crime to force someone into a marriage. Some of them are discussed below.

It may be noted that the South East Asian community is multicultural and is bound or subjugated by multiple social practices and norms. Further, family values are essential within the negotiated social and moral order of these communities, establishing values and beliefs with which community members are identified. So, these values and beliefs bind the determination of parties

  1. Oonah Gay, ‘Forced Marriage’ (Standard note SN/HA/1003, 21 January 2015).
  2. Ibid, 5.
  3. Refuge, ‘Forced Marriage in the UK’, accessed .

It may be noted that the South East Asian community is multicultural and is bound or subjugated by multiple social practices and norms. Further, family values are essential within the negotiated social and moral order of these communities, establishing values and beliefs with which community members are identified. So, these values and beliefs bind the determination of parties and their social and family duties, including marriage. Bound directly or indirectly by such norms and practices, members of the community are subjected to complex layers of pressure and passive coercion. This pressure or coercion may take different forms, namely, physical pressure including threats, physical violence and sexual violence; emotional and psychological pressure for example, when someone is made to feel like they’re bringing shame on their family; or financial pressure.

Multiculturalism in South Asian community has often led to cultural conflicts and identity crisis for the members of the community. This is considered to be one of the reasons for forced marriages in England and Wales. A study conducted among the Minority Ethnic communities in the parts of Sunderland, Newcastle and South Tyneside showed that the issues of identity crises among the parents include the fear that their offspring would lose their roots or identity by becoming too ‘westernised’. Such approach and belief is evidently the reason why forced marriage is considered to be a result of immigrant experience.

An understanding of socio-cultural aspects of womanhood will show inequalities in the social structure prevalent among South Asian community. In England and Wales, women of South Asian community go through high level of constraints. They are subjected to constant socio-cultural expectations, family influence and persuasion. Socio-cultural expectations often lead to elements of pressure, threat and force, which are instrumental in obtaining consent for marriage.

The issues related to forced marriages may intertwine with those related to honour based crimes and domestic violence, and it may be impossible to separate these issues, as was seen in the

  1. Ralph Grillo, ‘Marriages, arranged and forced: The UK debate." Gender, generations and the family in international migration’ (2011) Amsterdam University Press 77.
  2. Queen Mary University of London, ‘Forced Marriage’, accessed .
  3. Geetanjali Gangoli, Amina Razak, and Melanie McCarry, Forced marriage and domestic violence among South Asian communities in North East England, (University of Bristol 2006).
  4. Sundari Anitha, Aisha Gill, ‘Coercion, Consent and the Forced Marriage Debate in the UK’ (2009) 17(2), Feminist Legal Studies 165
  5. C Julios, Forced Marriage and 'Honour' Killings in Britain: Private Lives, Community Crimes and Public Policy Perspectives (Oxon: Routledge 2016).

The issues related to forced marriages may intertwine with those related to honour based crimes and domestic violence, and it may be impossible to separate these issues, as was seen in the cases of Rukshana Naz and Heshu Yones. A recent House of Commons’ report related the issue of forced marriage to an increasing incidence of honour based violence. The government gives recognition to the element of ‘shame’, which is peculiarly associated with South Asian communities and their sense of family or community honour. Honour based violence usually involves members of the family or at times, members of the wider community who often perpetrate violence. Victims may be men as well as women, and the incidence is seen across religious spectrum, and encompasses Christian, Muslim, Hindu, Sikh and Jewish communities. Forced marriage is associated with use of distinct threat of violence to restore honour to the family. In certain cases, honour based violence can even extend to murder.

Definition of honour based violence finds its link with forced marriage, as adopted by the Forced Marriage Unit: "'So-called honour based violence' is a crime or incident, which has or may have been committed to protect or defend the honour of the family and/or community." Most South Asian Communities are male dominated or patriarchal and the reputation of the family is believed to rest on women. Cultural and religious values of these communities are conservative and orthodox and rooted in age old practices and norms. This results in using honour as a justification to honour based violence and even domestic violence that are normally found in forced marriage. Situations such as these remain explicit in these communities.

  1. H Siddiqui, “There is no Honour in Domestic Violence, Only Shame! Women's Struggles Against Honour Crimes in the UK,” in S. Hossain & L. Welchman (eds.). 'Honour': Crimes, Paradigms and Violence Against Women (London: Zed Books, 2005).
  2. T. H. o. C., Domestic Violence, Forced Marriage and 'honour'-Based Violence: Sixth Report of Session 2007-08, Volume 1 (London: The Stationary Office 2009) 12.
  3. H Siddiqui, ‘There is no Honour in Domestic Violence, Only Shame! Women's Struggles Against Honour Crimes in the UK,’ in S. Hossain & L. Welchman (eds.). 'Honour': Crimes, Paradigms and Violence Against Women (London: Zed Books, 2005).
  4. T. H. o. C., Domestic Violence, Forced Marriage and 'honour'-Based Violence: Sixth Report of Session 2007-08, Volume 1 (London: The Stationary Office 2009) 13.
  5. Ibid
  6. Cynthia Helba and others, 'Report on Exploratory Study into Honor Violence Measurement Methods' (2014) United States Department of Justice.
  7. The Crown Prosecution Services, ‘Forced Marriage And Honour Based Violence Cases Guidance On Flagging And Identifying Cases’, accessed .
  8. Liz Kelly, Moving in the shadows: Violence in the lives of minority women and children (2nd Edition, Routledge 2016).

Within the South Asian communities, the issue of forced marriages is complicated by the fact that many of these marriages may take place outside the territory of England and Wales. In England and Wales, for an overseas marriage to be valid, one of the requirements is that each of the parties to the marriage must have capacity, under the law of the place where he or she is domiciled at the time of the marriage, to marry the other party in the manner proposed. The rule of “Lex loci celebrationis” is applicable and therefore, the capacity of marriage has to be seen as per the local law of the place where marriage has taken place. In Luton Borough Council v SB, RS, the court held that capacity “is an intrinsic, indivisible facet of both psychological and moral integrity.” Its absence distorts the commitments in a marriage and a party without such capacity is not likely to understand their marital obligations. Many cases related to overseas marriage relate to the issues of lack of capacity, which make the marriage invalid. Also, victims of such marriages are threatened with dis-ownership from the family. The motivations of perpetrators to force somebody into marriage may include what most families see as ‘positive’ reasons. These reasons may take the form of securing children's future and financial requirements, preserving cultural and traditional practices, extending family ties, or keeping long-standing promises. Such reasons are advanced as justifications for forced marriage.

In the context of forced overseas marriage, Common law provides three tests to be satisfied for the validity of overseas marriage. The first is the test of formal validity, which requires that the marriage be formally valid as per the law of the country where it took place. The second is the test of essential validity laid down by the House of Lords in Brook v Brook, as per which the parties must have the legal capacity to marry one another according to the respective laws of their ante-nuptial domicile. The third is the test of public policy, which is applied as per the discretion of the courts.

  1. J Murphy, International Dimensions in Family Law (Manchester University Press 2005) 33.
  2. [2015] EWHC 3534 (Fam).
  3. Joanne Baker, 'Forced Marriage: A Review of Literature' (2015) Ending Violence Association of British Columbia
  4. Clawson R, Vallance P, ‘Forced Marriage and Learning Disabilities: Multi-Agency Practice Guidelines’ (2010) HM Government.
  5. Ratnaike D, ‘I don't: escaping forced marriage: RCM Midwives’ (10) PubMed 312.
  6. (1861) 9 HL Cas 193.
  7. J Murphy, International Dimensions in Family Law (Manchester University Press 2005) 36.

Instances of forced marriages in South Asian communities are also found with persons with mental illness or disability. They are more prone to the risk of forced marriage and its effects.

A study conducted in east London borough of Tower Hamlets found that all of intellectually disabled Bangladeshi women were married. They did not have the required mental capability to have had given their consent to marriage. This implies they were forced into getting married. It was reported in 2010 that there were cases of 1735 contacts with the Forced Marriage Unit out of which there were 70 cases involving mentally disabled people. Forced Marriages can happen with both the men and the women. In KC & NNC v City of Westminster v IC, a severe intellectually disabled young man with autism was married off on the telephone to an intellectually abled woman residing in Bangladesh. The Court of Appeal did not recognise the validity of this marriage and held that any consummation of the marriage would be tantamount to rape or indecent assault.

Legislation and Regulation

The part of the essay will discuss government initiatives on laying down appropriate legislations and rules to tackle the growing incidence of forced marriages. The section will discuss the principal legislations together with other legislations that recognise and support the protection of victims of forced marriages.

Initially, the legal system treated forced marriage as a civil case rather than a criminal case. Such treatment indicated that the government heavily considered influences of cultural practices on national legislation. Further, during that time not enough arguments were available to determine any criminal legislation as a tool to tackle violence against women. It therefore recognised forced marriage as being a violation of choice rather than violence against women. Clearly, the

  1. O'Hara J, Hemmie M, ‘Parents with learning disabilities: a study of gender and cultural perspectives in East London’ (2003) 31 British Journal of Learning Disabilities 18–24.
  2. Singh MK, ‘Forced Marriage and Mental Health: Better Health Briefing Paper’ (2011) 24 Race Equality Foundation.
  3. [2008] EWCA Civ 198.
  4. Ibid.
  5. Kaye Quek, “A Civil Rather than Criminal Offence? Forced Marriage, Harm and the Politics of Multiculturalism in the UK” (20 August 2012) 15 (4) The British Journal of Politics and International Relations 626.

approach to forced marriages was inadequate to deal with the problem.

Inadequacy of existing legislations to tackle issues of forced marriage could also be explained from a refugee perspective. A survey carried out for the period between 2006 to 2007 by the charity Women's Aid, revealed that 870 women in refuge accommodations were victims of forced marriage and were actually fleeing from their marriages. Also, an analysis of 120 refugee cases from Australia, Canada, and Britain found forced marriage to be one of the reasons for seeking refugee protection. However, during that time, refugee decision makers were not in favour of considering issues and effects related to forced marriage. Any case related to forced marriage was thus dealt with under existing legislations covering either offence of violence, kidnapping, false imprisonment, etc. However, the situation changed for good with recognition given to forced marriage as a specific criminal offence under Section 121 of the Anti-Social Behaviour, Crime and Policing Act 2014, which came into force on 16th June 2014. The following part will deal with this and other relevant legislations and regulations that cover cases of forced marriages.

Forced Marriage (Civil Protection) Act 2007

There has been strong condemnation against forced marriages in the England and Wales. Courts showed high level of intolerance towards such form of marriage as they felt forced marriages involved blatant violation of human rights and are regarded as a form of domestic violence. In NS v MI, court strongly condemned forced marriages. It acknowledged the fact that forced marriages are common in certain communities and ethnic groups and that such a marriage is also used as a tool to immigrate into UK. In Re K; Local Authority v N and Others, forced marriage was perceived to be a gross abuse of human rights, and also a incident of domestic violence.

  1. Bushra Rauf, Nadia Saleem, Rachael Clawson, Mandy Sanghera, Geoff Marston, ‘Forced marriage: implications for mental health and intellectual disability services’ (2013) 19 (2) Advances in Psychiatric Treatment 135-143.
  2. Catherine Dauvergne, Jenni Millbank, ‘Forced Marriage as a Harm in Domestic and International Law’ (2010) 73(1) The Modern Law Review 57.
  3. The Crown Prosecution Service, ‘Honour Based Violence and Forced Marriage’, accessed .
  4. Stephen Gilmore, Lisa Glennon, Hayes and Williams' Family Law (Oxford: Oxford University Press 2016).
  5. [2006] EWHC 1646 (Fam), [2007] I FLR 444.
  6. [2005] EWHC 2956 (Fam), [2007] 1 FLR 399.

In response to similar issues arising out of forced marriages, the Forced Marriage (Civil Protection) Act 2007 was enacted and enforced on 25th November 2008. Victims of forced marriage can seek civil remedies under this Act. The Act is applicable within and outside both England and Wales. It aims to prohibit forced marriages and empowers a court to issue FMPO in order to protect potential victims of forced marriages. Chapter 20, Section 1 of the Act inserted Part 4A, in Family Law Act 1996, under which the court is empowered to issue a Forced Marriage Protection Order that acts as a prohibition or restriction against forced marriage. Such as order protects a person “from being forced into a marriage or from any attempt to be forced into a marriage”. The section recognises the element of free and full consent, the lack of which determines a forced marriage, and also recognises the element of force as meaning coercion through threats or psychological means. The victim or a relevant third party, on behalf of the victim, may apply to the court for a Forced Marriage Protection Order (FMPO). At the time of making the order, the court can make appropriate directions requiring that the behaviour or conduct of those forcing another into marriage should change or stop. Breach of FMPO is treated as a contempt of court. In case a person fails to comply with the order or violates a forced marriage protection order, he/she is liable on summary conviction: (i) to a fine not exceeding level 5 on the standard scale; (ii) to imprisonment for a term not exceeding 6 months; or (iii) to both.

The Crown Prosecution Services (CPS) lays down that FMPO protects a victim from all civil or religious ceremonies that lead to forced marriage. Section 120 of the Anti-Social Behaviour, Crime and Policing Act 2014 (discussed later) recognises the breach of a FMPO as a criminal offence. The police can refer such breach to the CPS if reported by the victim in the first instance.

Forced Marriage Unit (FMU)

The Forced Marriage Unit (FMU) was set up in January 2005. It is a joint Foreign and Commonwealth Office and Home Office unit. According to FMU, a forced marriage involves

  1. The Crown Prosecution Service, ‘Honour Based Violence and Forced Marriage’, accessed .
  2. GOV.UK, ‘Guidance Forced Marriage’ (9th March 2017), accessed .

physical and emotional duress and coercion to force someone to marry against their will. Forced marriage violates human rights and there cannot be a religious or cultural justification for it.

According to a report dated June 16, 2014 in New York Times, forced marriage is reportedly more common among South Asian communities in England and Wales. It is stated that two-thirds of the cases with FMU originated from these communities. Arranged marriage, considered a common cultural practice, sometimes become forced marriage in extreme cases. The news report further states that some families forcefully fly their children to countries, like Pakistan, India or Bangladesh, and force them into an arranged marriage. In Re P, it was observed that it was common to forcefully take a victim to another country and marry her off to a local man with whom the victim has never met. To tackle such issues and problem related to forced marriage, FMU operates both inside the UK, where support is provided to any individual, and overseas, where consular assistance is provided to British nationals, including dual nationals.

The FMU deals with forced marriage cases and also provides advice to victims through its public helpline. It deals with ‘reluctant sponsor’ cases by providing support such as aiding a victim to prohibit unwanted spouse from coming to the UK. The FMU is authorised to rescue victims forcefully held at overseas locations. Besides these functions, FMU conducts training programmes and events and media campaigns. An example of such a campaign is 2015’s ‘Right to choose’ campaign, aimed to create and raise awareness related to forced marriages. The following summary of FMU’s 2016 report on forced marriage cases will show that a higher percentage of cases stem from certain South Asian countries:

  1. Ralph Grillo, ‘Marriages, arranged and forced: The UK debate, Gender, generations and the family in international migration’ (2011) Amsterdam University Press 77.
  2. The New York Times, ‘Marriage by Force Is Addressed in Britain UNE’ (June 16, 2014), accessed .
  3. [2011] EWHC 3467.
  4. GOV.UK, ‘Guidance Forced marriage’ (9th March 2017), accessed .
  5. Ibid.
  6. “Forced Marriage Unit Statistics 2016”, accessed < https://www.gov.uk/government/statistics/forced-marriage-unit-statistics-2016 >
  1. Out of the 69 focus countries, Pakistan with 612 cases amounting to 43% ranks the highest, followed by Bangladesh ranking second with 121 cases at 8%, and India ranking third with 79 cases at 6%. Besides these three countries, Afghanistan has 39 cases at 3% and Sri Lanka has 11 cases at 1%.
  2. 30 cases amounting to 2% involved LGBT as victims.
  3. 140 cases (10%) involved victims with intellectual disability.
  4. 15% cases involved below 16 years old minor victims; 26% involved victims below 18 year; and 35% involved victims between 18-25 years.

The Anti-social Behaviour Crime and Policing Act, 2014

The Anti-social Behaviour Crime and Policing Act, 2014 was enacted to tackle the vacuum found in the Forced Marriage (Civil Protection) Act 2007. The Act of 2007 does not recognise forced marriage as a criminal offence and it provides only civil remedies. This was not sufficient to enforce rights of women, particularly belonging to a minority group. This was evident in the way the judicial system dealt with the case of Bedfordshire Police v U and another. The court was inhibited to deal with a breach of a FMPO due to apparent absence of enforcement provisions. The result of the decision was that despite the presence of a FMPO, the victim's mother arranged the marriage ceremony at the victim's home.

The Anti-social Behaviour Crime and Policing Act (ASBCPA) was passed in 2014 to fill the gaps left by the Forced Marriage (Civil Protection) Act 2007. The Act makes forced marriage a criminal offence by laying down the following elements: (i) taking someone overseas to force them to marry; (ii) marrying someone who is mentally incapable to give consent; (iii) violating Forced Marriage Protection Order. ASBCPA is applicable in both England and Wales. Part 10 of ASBCPA recognizes forced marriage as a criminal offence. Section 120 of ASBCPA has inserted 63CA to the Family Law Act 1996.

  1. Kaye Quek, “A Civil Rather than Criminal Offence? Forced Marriage, Harm and the Politics of Multiculturalism in the UK” (2012) 15 (4) The British Journal of Politics and International Relations P 626.
  2. [2013] EWHC 2350.
  3. GOV.UK, “Forced Marriage” (9 March 2017), accessed, < https://www.gov.uk/guidance/forced-marriage#legislation-on-forced-marriage>.

Section 121 of ASBCPA provides the components of forced marriage as including “violence, threats or any other form of coercion” and a reasonable belief of causing a person to enter into the marriage without his or her free and full consent. The section further provides a list of components comprising a forced marriage, including deception of any kind to cause a person to leave the UK, or with an intention to subject the potential victim to conduct a marriage outside the UK. This section also covers cases that involve forcing an individual to go overseas to be married. The section also defines the scope of coercion as including threat of physical force and financial pressure, physical force, or emotional force.

The passing of the Act has made possible the enforcement of criminalising forced marriage. In the reportedly first ever case of forced marriage, a 34-year-old Cardiff man from South Wales was sentenced to 16 years' imprisonment in 2015. This is considered the first conviction under the Anti-social Behaviour Crime and Policing Act, 2014. The man was held guilty to one count of voyeurism, one count of bigamy and four counts of rape. Before forcing the victim to marry him, he repeatedly raped and threatened the victim, who was a devout Muslim. He even threatened to kill members of victim’s family if she revealed his acts to her family or any one else. Clearly, criminal law is engaged in the case.

Section 121 of ASBCPA also covers any conduct purposefully causing the victim who lacks the capacity to consent (within the meaning of the Mental Capacity Act 2005) to marry. It does not matter whether there is existence or non existence of the element of violence, threats or any other form of coercion. The section seems to cover cases related to a minor who is not mentally capable of giving consent to marry.

As discussed above, forced marriages are also prevalent in overseas locations. This issue can be best tackled with by enforcing sub-sections 7 and 8 of section 121. These provisions cover cases

  1. The Crown Prosecution Services, ‘UK's first forced marriage conviction’ (10/06/2015), accessed .
  2. BBC News, ‘Forced marriage jail first as Cardiff man sentenced’ (10 June 2015), accessed .
  3. Bridget Clark and Claudina Richards, 'The prevention and Prohibition of Forced Marriages: A Comparative Approach (2008) 57(3) International and Comparative Law Quarterly 501.

As discussed above, forced marriages are also prevalent in overseas locations. This issue can be best tackled with by enforcing sub-sections 7 and 8 of section 121. These provisions cover cases involving coercion and deception elements and accruing extra-territorial jurisdiction. The provisions cover any offence that occurred to a national or person habitually resident in England or Wales or occurred outside the UK by a UK national or person habitually resident in England or Wales. Such offence can be tried under domestic law and in the courts of England and Wales. Sub-sections 9 and 10 provide the penalties for offences related to forced marriages. On summary conviction, there is a fine or twelve months' imprisonment or both, and conviction on indictment accrues seven years' imprisonment. For offences before commencement of section 154(1) of the Criminal Justice Act 2003, the imprisonment is for six months on summary conviction.

The remedies provided under ASBCPA are in addition to the civil remedies provided under Forced Marriage (Civil Protection) Act, 2007. Also, this Act treats forced marriage as a specific criminal offence despite existing criminal legislation covering grievous bodily harm, abduction, and rape.

Children Act 1989

There are instances where children are victims of forced marriage. It is therefore appropriate to extend the provisions under the Children Act 1989 to forced marriage cases. In the event a child becomes a victim of forced marriage, relevant provisions of the Act should be extended alongside FMPOs. As seen earlier, the FMU 2016 report shows children as also being vulnerable to forced marriages. Besides being prevalent in other communities, cases of forced marriage involving minors are reportedly most prevalent in South East Asian communities.

  1. GOV.UK, “Forced Marriage” (9 March 2017), accessed, < https://www.gov.uk/guidance/forced-marriage#legislation-on-forced-marriage>.
  2. Christina Julios, Forced marriage and honour killings in Britain: private lives, community crimes and public policy perspectives (2015) Ashgate Publishing, Ltd.
  3. Cathy Humphreys, Nicky Stanley, Domestic Violence and Protecting Children: New Thinking and Approaches (2015) Jessica Kingsley Publishers.
  4. “Forced Marriage Unit Statistics 2016”, accessed < https://www.gov.uk/government/statistics/forced-marriage-unit-statistics-2016 >.
  5. Ibid.

A case study of Manchester shows that forced marriage involving children is given serious consideration and priorities. According to available 2014 statistics with the City Council, Manchester has over 33% ethnic group with South Asian community comprising more than half of this group. As a step to provide protection to children from falling prey to forced marriage, policies related domestic violence and child protection are provided to schools and other agencies working with children. Such policies have constant references to issues involving forced marriage.

Matrimonial Causes Act 1973

Matrimonial Causes Act 1973 provides that a marriage may be held to be void or voidable based on specific reasons provided under the Act. Section 12 of the Act lays down that a marriage is voidable when a party did not give valid consent because of “duress, mistake, unsoundness of mind or otherwise mental disorder venereal disease”. In P v R, forced marriage led the court to declare nullity of the marriage.

This Act covers the components of forced marriage and therefore extends its coverage to issues related to forced marriage. A victim can enforce Section 12 and can seek a divorce based on the grounds provided above to protect himself or herself from forced marriage.

Mental Capacity Act 2005

This Act applies to England and Wales. The existing protection related to forced marriage is extended by Section 27 of the Act entitled “Family relationships, etc.” It prohibits a person from consenting to a marriage or a civil partnership on behalf of another person. This section is read with the Mental Capacity Act 2005 that prohibits a court and/or any individual (including a parent) to give consent to marriage on behalf of “an adult who lacks the capacity to give his/her own consent”. This Act determines that a marriage involving an incapacitous person to be a forced marriage. Remedies available under both the Forced Marriage (Civil Protection) Act 2007

  1. Cathy Humphreys, Nicky Stanley, Domestic Violence and Protecting Children: New Thinking and Approaches (2015) Jessica Kingsley Publishers.
  2. Ibid.
  3. [2003] 1 FLR 661.

and Mental Capacity Act 2005 are available to the victim. Mental Capacity Act 2005 will provide protection related to healthcare, property, affairs and personal welfare for victims who lack capacity. The Forced Marriage (Civil Protection) Act 2007 can prevent family members into forcing or attempt to force a victim into forced marriage.

Policing and Crime Act 2017

Section 173 of the Policing and Crime Act 2017 was adopted for the purpose of providing lifelong anonymity to victims of forced marriages. The provision provides a broad and wide-ranging protection in that the protection starts from the time an allegation is made. Any kind of public disclosure of information related to identity of the victim is an offence. The objective of this measure is to encourage victims to seek support and help bring perpetrators to justice.

Efforts of Government and Private Agencies

Private Agencies

There are many non-profit organisations, such as Freedom Charity, Muslim Women’s Network UK, Refuge, and Minority Ethnic Children, that are working either independently or with government agencies to tackle issues related to forced marriages. These organisations work in not only South Asian communities but other ethnic minority groups as well.

Many victims do not seek remedies provided in the available legislations because of lack of awareness about the law as well as the available remedies. Independent initiatives and studies undertaken by private bodies or sponsored studies and awareness programmes have led to better

  1. Bushra Rauf, Nadia Saleem, Rachael Clawson, Mandy Sanghera, Geoff Marston, ‘Forced marriage: implications for mental health and intellectual disability services’ (2013) 19 (2) Advances in Psychiatric Treatment 135.
  2. The Crown Prosecution Service, ‘Honour Based Violence and Forced Marriage’, accessed .
  3. Christina Julios, Forced marriage and'honour'killings in Britain: private lives, community crimes and public policy perspectives ( Ashgate Publishing, Ltd. 2015).

understanding of perceptions of the South Asian community related to forced marriage. Among these communities, family or community honour prevails over the integrity or independence of victims of forced marriage. Forced marriage can also be examined as an abuse of women’s rights as most victims of forced marriages are women. Reports from the Foreign and Commonwealth Office and Department of Health consider forced marriage to be a form of domestic violence.

The Crown Prosecution Service (CPS)

Guidance provided by the Crown Prosecution Service covers provisions laid down under the various legislations noted above. Crown Prosecution Service lays down that any behaviour, violence or abuse, including elements of psychological, physical, sexual, financial or emotional pressure committed with the intention and purpose of forcing someone to marriage, is a criminal offence. The person will be prosecuted as perpetrator of forced marriage. If there is element of coercion, the act will be prosecuted as an offence, such as harassment, kidnapping, or threat to kill, as the case may be. If there is an element of duress or forcing someone to get married without consent, perpetrators will be prosecuted for offence, such as rape, or sexual assault. For the purposes of monitoring forced marriage, CPS also provides guidance for the prosecutor to flag forced marriage along with honour crimes, domestic violence, rape, etc.

Muslim Arbitration Tribunal (MAT)

Muslim Arbitration Tribunal (MAT) deals with the crisis of forced marriage by laying down relevant measures. MAT appoints judges to scrutinise depositions of a British partner to determine presence or absence of forced marriage. In the event of a forced marriage, MAT may seek FMPO.

  1. Alexia Sabbe, Marleen Temmerman, Eva Brems & Els Leye, ‘Forced marriage: an analysis of legislation and political measures in Europe’ Crime, Law and Social Change.
  2. Aisha K.Gill, Sundari Anitha, Forced Marriage: Introducing a social justice and human rights perspective (Zed Books 2011).
  3. The Crown Prosecution Service, ‘Honour Based Violence and Forced Marriage: Guidance on Identifying and Flagging cases’ (June 2014), accessed .
  4. Ralph Grillo, Marriages, arranged and forced: The UK debate." Gender, generations and the family in international migration’ (2011) Amsterdam University Press 77.

Conclusion

In a community that seems to be inherent with hidden complexities, the availability of sufficient legislation and statutory safeguard available to tackle issues of forced marriage does not seem to have the expected effect. The South Asian communities look like a closed system where understanding the structural elements involving cultural and traditional practices would take ages.

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Forced marriage is an abuse of human rights and amounts to a criminal offence. Unfortunately, the available legislations do not seem to pierce through the thick cover of traditions involved in these communities. As seen in the 2016 report by FMU, incidence of forced marriage is quite prevalent among these communities. It is also quite surprising to see cases of forced marriage involving minors and people who lack mental capability. It appears that there is still a gap in enforcement even after the adopting of the The Forced Marriage (Civil Protection) Act 2007 and the Anti-social Behaviour Crime and Policing Act 2014. The main flaw in the legislations is the lack of enforcement capabilities. This is evident from the number of cases reported by FMU and the rare convictions of perpetrators involved in forced marriage. Even the criminalisation of forced marriage has not been able to respond to the severity of the problems arising out of a forced marriage.

There is a strong element of ‘culture’ and gendered roles and expectations prevalent in Sout Asian communities. The reason for such blatant practices of forced marriage seems to stem from the lack of awareness on available legislative remedies. Patriarchal mindsets have also added to the incidence of forced marriages that victimise women. It is therefore important to give top priority to safety of women and girls while dealing with issues related to forced marriage.

  1. Marai Larasi, Sumanta Roy, Imkaan and Ruth Tweedale, ‘This is not my destiny. Reflecting on responses to forced marriage in England and Wales’ (2014) Rights of Women.

Bibliography

Books

      Gangoli G, Razak A, and McCarry M, Forced marriage and domestic violence among South Asian communities in North East England, (University of Bristol 2006).
      Gilmore S, Glennon L, Hayes and Williams' Family Law (Oxford: Oxford University Press 2016).
      Gill AK, and Anitha S, Forced Marriage: Introducing a social justice and human rights perspective (Zed Books 2011).
      Humphreys C, and Stanley N, Domestic Violence and Protecting Children: New Thinking and Approaches (2015) Jessica Kingsley Publishers.
      Julios C, Forced Marriage and 'Honour' Killings in Britain: Private Lives, Community Crimes and Public Policy Perspectives (Oxon: Routledge 2016).
      Kelly L, Moving in the shadows: Violence in the lives of minority women and children (2nd Edition, Routledge 2016).
      Larasi M, Roy S, Imkaan and Ruth Tweedale, ‘This is not my destiny. Reflecting on responses to forced marriage in England and Wales’ (2014) Rights of Women.
      Murphy J, International Dimensions in Family Law (Manchester University Press 2005).
      Sabbe A, Temmerman M, Brems E and Els Leye, ‘Forced marriage: an analysis of legislation and political measures in Europe’ Crime, Law and Social Change.
      Siddiqui H, “There is no Honour in Domestic Violence, Only Shame! Women's Struggles Against Honour Crimes in the UK,” in S. Hossain & L. Welchman (eds.). 'Honour': Crimes, Paradigms and Violence Against Women (London: Zed Books, 2005).

Journals

  • Anitha S, Gill A, ‘Coercion, Consent and the Forced Marriage Debate in the UK’ (2009) 17(2), Feminist Legal Studies 165
  • Baker J, 'Forced Marriage: A Review of Literature' (2015) Ending Violence Association of British Columbia
  • Clark B and Richards C, 'The prevention and Prohibition of Forced Marriages: A Comparative Approach (2008) 57(3) International and Comparative Law Quarterly 501.
  • Dauvergne C, Millbank J, ‘Forced Marriage as a Harm in Domestic and International Law’ (2010) 73(1) The Modern Law Review 57.
  • Grillo R, ‘Marriages, arranged and forced: The UK debate." Gender, generations and the family in international migration’ (2011) Amsterdam University Press 77.
  • O'Hara J, Hemmie M, ‘Parents with learning disabilities: a study of gender and cultural perspectives in East London’ (2003) 31 British Journal of Learning Disabilities 18–24.
  • Quek K, “A Civil Rather than Criminal Offence? Forced Marriage, Harm and the Politics of Multiculturalism in the UK” (20 August 2012) 15 (4) The British Journal of Politics and International Relations 626.
  • Ratnaike D, ‘I don't: escaping forced marriage: RCM Midwives’ (10) PubMed 312.
  • Rauf B, Saleem N, Clawson R, Sanghera M, Marston G, ‘Forced marriage: implications for mental health and intellectual disability services’ (2013) 19 (2) Advances in Psychiatric Treatment 135-143.
  • Singh MK, ‘Forced Marriage and Mental Health: Better Health Briefing Paper’ (2011) 24 Race Equality Foundation.

Reports

  • Clawson R, Vallance P, ‘Forced Marriage and Learning Disabilities: Multi-Agency Practice Guidelines’ (2010) HM Government.
  • Gay O, ‘Forced Marriage’ (Standard note SN/HA/1003, 21 January 2015).
  • Helba C and others, 'Report on Exploratory Study into Honor Violence Measurement Methods' (2014) United States Department of Justice.
  • T. H. o. C., Domestic Violence, Forced Marriage and 'honour'-Based Violence: Sixth Report of Session 2007-08, Volume 1 (London: The Stationary Office 2009)
  • BBC News, ‘Forced marriage jail first as Cardiff man sentenced’ (10 June 2015), accessed .
  • Crown Prosecution Services, ‘Guidance regarding honour based violence and forced marriages’, accessed .
  • Crown Prosecution Services, ‘Forced Marriage And Honour Based Violence Cases Guidance On Flagging And Identifying Cases’, accessed .
  • Crown Prosecution Service, ‘Honour Based Violence and Forced Marriage’, accessed .
  • Crown Prosecution Services, ‘UK's first forced marriage conviction’ (10/06/2015), accessed .
  • “Forced Marriage Unit Statistics 2016”, accessed < https://www.gov.uk/government/statistics/forced-marriage-unit-statistics-2016 >
  • GOV.UK “Forced Marriage,” accessed
  • New York Times, ‘Marriage by Force Is Addressed in Britain UNE’ (June 16, 2014), accessed .
  • Queen Mary University of London, ‘Forced Marriage’, accessed .
  • Refuge, ‘Forced Marriage in the UK’, accessed .

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