Last week the Ministry of Justice announced a consultation on the Forced Marriage (Civil Protection) Act 2007 which is due to come into force in the autumn of this year (date to be appointed). It will be enacted by way of amendments to Part IV of the Family Law Act 1996, which contain existing powers to make non-molestation orders and occupation orders (often referred to in the press as ‘restraining orders’ or ‘injunctions’).
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Forced Marriage Orders look set under the Act to be wide injunctive type orders which can be tailored to meet the needs of an individual case and which will be enforceable by way of imprisonment or fine. The terminology and framework used is in many respects borrowed from the original Part IV (for example the courtmust have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected), but obviously new definitions are added (‘forced marriage’, ‘free and full consent’) which will have to be tested by caselaw. Applicants may include the victim her/himself, any other person with permission or any ‘relevant third person’ (as defined by the Secretary of State, and without the need for permission).
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The consultation concerns the relatively limited issue of who should be a ‘relevant third party’. Under the Act such a person or organisation will be allowed to make an application to the court for an order on behalf of the victim (prospective or actual) of a forced marriage, without first obtaining the permission of the court. I anticipate that social services departments are likely to be on the list, but I wonder how consistently or assiduously they are likely to make such applications where the victim is a young adult as opposed to a child. In cases involving children the local authority has clear statutory duties towards children in need or children who are at risk of significant harm, and although to some extent protection against forced marriage for a child could be obtained via s31 care proceedings no doubt these provisions will be helpful for local authorities in cases where young girls (and boys) disappear from school or where there are other markers of a possible abduction and / or forced marriage. Indeed the prospect of using these powers in the first instance as opposed to care proceedings may well be very attractive to a local authority wishing to avoid the exorbitant court fees of several thousand pounds which come into force under the new Public Law Outline as of April. The fee for this type of application looks likely to be set at a far lower figure, although I suppose it is likely that in due course someone will get wise to this and up the fee where a local authority is concerned. Outside the statutory framework of duties towards children, how often will Local Authorities consider it appropriate to intervene in this kind of case?
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Other ‘relevant third parties’ might include women’s groups, cultural groups or domestic violence support organisations. However, in reality these organisations are unlikely to have the knowhow or resources to properly pursue these applications and their ethos may be against making such applications where a woman or girl does not feel able to apply herself. It might be helpful instead to see some sort of system in place where such community organisations could refer to the Local Authority for them to fund and make an application.
The Act looks likely to provoke some interesting caselaw surrounding the legal definitions of forced marriage, consent, and the appropriate way to ascertain the true wishes and feelings of the victim and to weigh them into the balance when deciding whether to make an order.
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Interestingly, the Act (as is foreshadowed in the title) gives only the ‘old style’ enforcement powers that were applicable to breaches of non-molestation orders prior to the enactment of the Domestic Violence, Crime and Victims Act 2004 which made breaches of non-molestation orders a criminal offence with a maximum penalty of five years. I would have thought that logic dictated that a breach of a Forced Marriage Order under the same act ought also to be covered by the same provisions, but in fact those orders will only be punishable by way of contempt proceedings in the family courts (I had thought my days of traipsing to court with wig and gown to deal with Pt IV contempts were over but perhaps I’d better not burn the wig just yet). This seems very odd when, as acknowledged in the press release, forced marriage is viewed (rightly) as a form of domestic violence (which in individual cases may incorporate offences as serious as rape or child abduction) and where government policy is clearly to treat domestic violence seriously by pursuing criminal rather than civil remedies wherever possible. I don’t understand the logic of treating forced marriage differently, notwithstanding that of course the CPS can always prosecute for existing offences as appropriate as it always could (rape, assault, kidnapping etc).
The other complicating factor is that this reintroduces to the Family Law Act the notion of a power of arrest, the use of which had been greatly reduced by the Domestic Violence, Crime and Victims Act 2004 since all breaches of non-molestation orders were converted automatically to arrestable offences (although the power of arrest remains applicable to occupation orders).
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Based on recent experience I know that many police officers have not yet sussed out these changes in the law (viz one client who was told her ex could not be arrested for a breach of a non-molestation order because the judge had forgotten to attach a power of arrest, despite the clear warning on the order that a breach WAS arrestable without such power). It seems retrograde to reintroduce the power of arrest for this type of order – although both cases leave the discretion as to whether or not to arrest to the police officer in question, the clear intention behind the blanket provision to make all breaches arrestable is to encourage the police to arrest at the outset and leave the decision on prosecution to the CPS. I hope that local police forces will ensure that the relevant staff are adequately trained in the now quite complex provisions of Part IV Family Law Act 1996 before the new amendments come into force.
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I suppose one benefit of using old style arrest and contempt provisions for a breach of a Forced Marriage order is to ensure that the matter (and the breachor) are brought promptly before a court for an immediate rollicking and if necessary further swift action to ensure the safety of the victim.
POSTSCRIPT – the reason I think for the non-criminal nature of the provisions in this act is because the knowledge that criminal sanctions would apply to family members may be a strong deterrent for victims of forced marriage in pursuing their remedies. And of course for that reason there would often be huge evidential difficulties with prosecuting such matters where victims were unwilling to testify against family members.