Essential Forced Marriage Protection Update 2021
Good morning and welcome everybody. I'm very pleased to welcome you to today's session. My name's Safta Mahmoud Abbas Lister, author and lecturer. I'm doing this session through data law. This is of course where I'm spending some time going through with you the area surrounding forced marriage protection cases and also FGM female genital mutilation protection order cases. I'm going to be taking you through some of the key principles and so far as both of these types of applications are concerned. So this Course is split up into three sessions Sessions 1, 2 and three. Each one is approximately 30 or so minutes in length and I'll be taking you through some some of the key guiding principles in so far as these matters are concerned, there are number of slides that I'll be working through to help you in that process. So there'll be a focus on how these applications are somewhat similar to but also different. two Other applications under the Family Law Act of 1996, for example, in the case of forced marriage will also be looking at the female genital mutilation Of 2003 and looking at some of the provisions there in so far as FGM is concerned. So we're taking you through the types of orders, the position with permission drafting of orders as well as the development of some of the key case law developments insofar as this matter is concerned and in particular to see what, what the factors are that we need to bear in mind from some of the very significant judicial decisions that have been made over the years. And I'm looking at the law, as of October 2021. And as always, I put the copyright acknowledgment here acknowledging crown copyright and all sort of DF as corporate author. So today then I'm going to be spending some time going through with you the position specifically with forced marriage protection order. So I'm going to be spending some time going through with you had these operate how to work generally who can apply? We'll be looking at the contents of these will be looking at the position with can you make these without notice? Can you attach powers arrested these? Can you accept undertakings which court do you make the application the position with the actual drafting of these in terms of we should be incorporating within knees. And also, I'm going to be taken to see some of the case law developments as well. Okay, so first and foremost, really talking about the position With the general legislation and the family Law Act in 1996. Many of you will know that we've, of course, of course, God, the position With the family after 19 96, when that was first brought in in october 1997, that brought in the concept of non molestation order, an occupation order. So, you'll all be familiar with those of course that had consolidated a lot of the previous legislation that we had then we had the family procedures of Course, which became effective as from six April 2011. And insofar as that's concerned, we've got Part 11 of the FPR which is a separate part Altogether. So part 10 years Old covers the procedure Insofar as non molestation occupation orders. But part 11 is a specific part altogether which was incorporated within the roots, which covers applications on the path for a of the family lot of 1996, which relates specifically to forced marriage legislation. And in terms of the forced marriage legislation itself. This was brought in as a result of the forced Marriage Civil Protection Act of 2000 and seven. That act came into effect in November 2008. So it's been in place now for some 13 years almost and this act amended the family out of 1996 by bringing in this new part for a So when you're looking at trying to find the actual root legislation, I would suggest your you're going to be looking at the Family Law Act of 1996, Part four Way, which covers the law then on forced marriage protection orders. Okay, And the Act, the Civil Protection Act of 2000 and brought in section 63 in relation to the position with them being able to make these applications. Okay, so section 63 then contains of the family action 196, it contains a lot of the provisions that you need when you're dealing with forced marriage applications cake. So first and foremost, in section 63, A one as you can see here, dis emphasizes that these orders is forced marriage protection orders coming made bye call for the purpose of than protecting a person from being forced into a marriage or from any attempt to be forced into a marriage. Or it's also used to protect a person who has in fact been forced to intermarriage. And I think lawyers sometimes forget that forced marriage protection orders are not used to just prevent to marriage from going ahead if the marriage has already gone ahead. These orders are still very useful because you can provide protection obviously for somebody in that situation as well, in terms of prohibiting harm, prohibiting violence, threatening behavior. And also some of the ancillary orders that would look at such as handing over passports, travel documents, preventing removal as we'll see. So bear that in mind. I think sometimes people think that disorder is only to prevent the forced marriage. Actually, it can also be used thereafter as well, even if the person was forced into a marriage thereafter. Okay. And it also obviously cause only attempt to force someone to a marriage as well. And in deciding where to exercise its powers in deciding whether or not to grant the order or not. The court must have regard to order circumstances including the need to secure the health safety and well being of the party is protected. They can see therefore that Section 63 a mirrors what we've got in so far as the criteria for a non molestation order under the final 90 96 Insofar as section 42 subsection five is concerned because you'll be aware that those of you who pursue anomalous station order. The judge also has to take into account all the circumstances including the need to secure the health welfare and safety of a person to be protected. So you can see it mirrors criteria there and therefore it's a very wide element of information in that regard. So the court can consider all the circumstances which therefore makes it as wide as it needs to be to ensure that all aspects of this are carefully considered in deciding whether or not to make the order in the circumstances and in ascertaining that person's well being. The court must have regard to that person's wishes and feelings as far as their reason backpack as the court considers in light of the age and the understanding because as you'll appreciate four smiled protection Als are not limited to just orders to protect adults. These can also be used of course to protect Children and as you know, the law as it currently stands is that it is permissible for a child at 16 or 17 to marry with parental consent Once one is 18 of course and they can marry of the old will and therefore you will have Cases where if you got 16 or 17 year old, for example, where by their parents or somebody else, maybe making arrangements for them to get married against their will. And this is where the court must insofar as reason, practical subjects of persons agent understanding ascertain that person's wishes and feelings in the circumstances. That's where that comes into play. What do we actually mean by being forced into a marriage? Because of course, there is sometimes inconsistency and uncertainty as to what is meant by being forced? Well, section 63 years of paragraph one defines this as force as including any coercion by threats, other forms of psychological means. And I think that's important because sometimes people think that To be forced, one has to be the victim of violence or threatening threats of violence and therefore physical violence. But as you can see, it's much wider than that. You can include psychological means as well. So the risk of being ostracized from the community being disowned to be shamed within the community, within the family. For example, somebody else being harmed. For example, if they don't go ahead with this parents or the person themselves frankly to harm themselves. Suddenly there's been extreme cases where sometimes a parent has set to their uh, they to a child. If you don't marry this person, we will kill ourselves. And suddenly there's, you know, you can imagine the kind of psychological pressure can then be placed upon the person in those circumstances, for example. So therefore it involves a correction by threats or other psychological means. And this is where we don't need to be clear about what these orders can and may they contain in the circumstances Section 63 B of the access this out where a forced marriage protection or to make contain such prohibitions or restrictions requirements as the court considers appropriate. So again, you can see it so it's a kind of catch all which therefore allows the court to be as expressive and as comprehensive as they need to be in the circumstances to ensure that the full uh huh force of the order is then made available to provide that level of protection in these circumstances which which of course may be necessary. So in terms of the order may for example, relate to conduct in England and Wales, for example, as well as conduct outside in the Wales, both inside and outside and inside England Wales and two response who are or may be involved with who are forced to attempt to force or may have forced me to marry or enter into a marriage and other people who may have been involved in that regard. So that's why when it comes to drafting, you may find that there will be numerous ancillary orders attached to forced marriage protection order, just like the FGM order that we'll look at later. So as to for example, required a person to be brought back to the UK, for example. So if they've been taken overseas for an order compelling the parents or other persons against whom the order is directed to ensure that the child or the person who's returned within a certain period of time. For example, for the travel documents to be handed in sort of passport, 100 and a visa to be handed in. Sometimes you can even get these location orders whereby depending on where the person has been taken, you may get an order through the tip staff, for example, whereby the person is located and then collected and then brought to the responsible persons or circumstances. These orders could be incredibly wide in that regard. These orders can also be used them to prevent removal of the person from the jurisdiction, for example, in that regard. Okay, so it can be as wide as they need to be. So, in terms of examples of involvement could be in other respects or to prohibit aiding abetting counseling, procuring encouraging or even assisting another person to force or tend to force a person into a marriage or conspiring to do so in those circumstances, you can see it can even incorporate the aiding and abetting element of this as well. Now, one of the questions that sometimes asked is do you need an application to be larger for in order to be made? And this is where sections 63 see sets this out where just like you've got the position with non molestation orders, occupation orders, and later, when we look at the FGM orders, you'll find that the courts can make these orders of their own initiative if appropriate, if it's necessary to do so. So these can be made without an application we made in practice or you will find and certainly my experience has been that these applications in practice are going to be warranting an application to be lodged quarter, but the court does again have that discretion to be able to make these of the own initiative in the circumstances, if that's felt necessary and appropriate in the circumstances and in terms of who can apply, this is Where Section 63 C sets out this position as well whereby an application made by a person needs to be protected by the order or a relevant third party. Okay, So it may be that the person themselves, if they have a sufficient depending on their age and understanding and uh level of understanding, they may apply themselves or you may Find a relevant 3rd party applies, or any other person who applies on their behalf may require leave or permission of the court, interestingly, In 2009, there was the 3rd party relevant application order which came in which has allowed local authorities To be regarded as a relevant 3rd parties so they can apply without needing permission. But interestingly, the police, if they apply on behalf of the person for forced marriage protection order, they don't come within the definition of relevant third parties that they would require leave of the court. In my experience, obtaining leave is not necessarily difficult. You don't have to carry out a substantive assessment of the Merits of the application for the order. one is looking at what what connection have you got with that person? Why are you applying on their behalf? What connection? What interest have you got in seeking this order? And they stay a legitimate interests. That's what one is looking at. Looking to see whether or not leave is required or not in those circumstances. And therefore, as I just mentioning deciding whether to grant leave or not. The court will then take into account the applicants connection with the person concerned. So for example, a mother may apply for leave for forced marriage protection order for her, for her son or daughter, for example, and the mother herself required to leave indoor circumstances like maybe they say the father is the one who is four single attempted to force procured of entering into a marriage against a child or adults wishes. And that's why I said the mother may apply on behalf of the child or the adult in those circumstances. So this is where she would require leave and therefore the court take into account her connection with the person to be protected. Her knowledge of the circumstances of the person to be protected. And also the wishes and feelings of the person be protected so far as reasonably ascertainable. And where's the court considers that appropriate light of their age and understanding. So you can see These are the three factors which will be considered in deciding whether or not to grant to leave in those circumstances. Now, one of the other questions that sometimes asked is can without notice orders be made for forced marriage protection orders. And simple answer to that is yes they can. And indeed in appropriate cases, these will be absolutely necessary. Just like you've got the Family Law Act, you've got section 45 of the act which specifies the situations in which without notice, normal estacion order and sometimes not without notice occupation order maybe sort similarly in this context, you may find that there is a need for a without notice order to be made. So section 63 d specifies that the court may in any case where it considers States just and convenient to do so make a forced marriage protection order. Even though the respondent hasn't been given notice, you can see this mirrors Very much what we have garbage section 45 of the family law act in relation to non molestation occupational applications, the type of situation I would suggest where you may want to think about it without notice orders. If there is a concern for example that if the family are going to be notified, let's say if it's a concern that there are concerns that the family Are making arrangements for, say the 17 year old, for example, to be taken overseas to be married against a wish. The concern may be that if there is evidence that if the family I informed about the application, which if it's made on notice, they're likely to abduct a person concerned or they are to replace such a person at risk or somebody else. And therefore, by giving them notice, it may potentially place a child at risk in those circumstances or some other person, then that's where without notice order may well be justified. And just like you've got with without notice, normal estacion occupation, or that it was necessary to ensure that the order is obviously served upon the respondent's as soon as is possible thereafter, so that they are aware this order has been made in the circumstances. So it is possible to make these orders without notice. And then if it is then it may be made for a period of time before then a return date is listed. Whether they're looking to see whether the order should be extended beyond that. So, you can see the the thinking behind that. And just like we've got with the position With normal estacion occupation orders, where it is possible, of course, for the court to accept undertakings percent sexual 46 of the act. Similarly, for the purpose of forced marriage legislation, you've got Section 63 E of the act, which specifically provides that it is permissible to accept an undertaking for the response to respondents for forced marriage protection order if it has power to make an order. So just like we've got a position with like, say non one occupation orders, undertakings can be given by exceptional undertaking. There is no funding. The fact made, of course, there are no findings, you cannot get the power of rest attached to the undertaking, there is no finding made, there is no admission of fault in that regard. But of course it carries with it. The provisions whereby the court can of course entertaining the application Apart. of the family procedures of 2010 for the purposes of committal bill. As a reminder, just Remind yourself that since 13 July this year 2021, there is The new UFC 600 form that came in which is a new commit or form which you should be using in family proceedings. So, if say there parents, for example, given the takings to not force or attempt to force the person concerned, what I gave undertakings for the return of a certain documents, passports, travel documents, and they failed to do so and they are now proven it is proven beyond reasonable Doubt percentage Part 37 application that that is the case Using the FC 600 formed and of course, that's where court and then impose the sentence pursuant to the Contempt of Court Act of 1929 regarding these various options, for example, is finding the person, there's committal up to two years in prison. That's suspended orders, for example, so they can make a more defined order if needs be. So, there's various options as you know, insofar as that's concerned. Okay, so that's a position with undertakings and obviously breech of orders as well in terms of the length of orders. This is where section 63 f is particularly helpful when the court can make the order for a specified period or until it's varied or discharge. That's the other thing to bear in mind. So you may find that if I without no disorders made, it may be made for a short period of time, maybe for a week or two, and then you're gonna return date. And that's where on the return date there may be a long road and made for a longer period of time. It's not uncommon to have these orders made for maybe six months a year. If not longer sometimes does depend very much upon the particular circumstances of the case and that that the need to ensure the adequate detection is in place thereafter. What's the position with powers of arrest? Well, this Is where section 60 three H then comes into play. And just like we have with the position of powers arrest attached to occupation Orders. Section 47 of the It's a similar test here. So you can see here, it provides, they have to court considers that the respondent has used or threatened violence against the person being protection. Otherwise the protection of the matter is dealt with. Then there may be a touch of power of arrest in one or more provisions unless it considers the north circumstances that there will be adequate protection without it. So you can see this mirrors the position that we've got under section 47 of the Family Law Act. When one is looking at attaching or seeking to attach a power of arrest to an occupation orders, you can see mirrors that. So if there is evidence of violence or threats of violence, then the court may then indoor circumstances. A touch of power rest to the various provisions under a touch to the forced marriage protection order unless they feel that it would not be necessary and the person would be otherwise adequately protected without the need for this. So that's what you need to be weighing up. So you can see powers of arrest can be touched and therefore they serve the same purpose as they will. If you have a power rest attached to an occupation order in that regard, In that the police for example, would then be able to arrest without the need for warrant. They would then be able to criminal seems if they need to but if not today more likely than not will enable that person than to be brought back before the family cord on having had been arrested. And that's where if you're enacting for the applicant in that situation, you may then wish to consider committal proceedings Under Part 37 route. So that's obviously the advantage of having the power of arrest in those circumstances. Now the other thing wants to raise with you at this stage is the fact that there are of course criminal penalties also associated with forced marriage. So even though we've got the Civil Protection under the Civil Protection Act of 2007, which obviously brought Indy Section of 63 that I've been discussing with you a few years ago, we also had the criminalization of forced marriage and that was brought in as a result of the anti social Behavior Crime and Policing Act of 2014. So as of 16 June 20 14, we had these provisions that came into effect and the net effect of these is that there are two offenses. There is first and foremost the offense of ah breaching a forced marriage protection order. Safety was a civil order made i e if I was acting for say the alleged victim and we pursue successfully and we obtained a forced marriage protection order and say they're person concerned who is to be protected and caused the police to say that the respondents have allegedly breached the terms of the order and as we mentioned, we want can go down the route of power to the rest, you can bring the matter back before the family court for dealing with enforcement that way. But actually, in addition to that, there is also the alternative option. Instead of the police decided to bring proceedings for breach of the forced marriage protection order. Now, just like we have with the double jeopardy rule in the case of uh the position with breaches of non molestation orders in that breach of that, as you know, is a criminal offense. One wouldn't be expecting to have somebody punished in a criminal court and the family court and therefore effectively being punished twice for the same. Like the same principle would apply here in that regard. But like, so the police can prosecute, they can prosecute for breach of forced marriage protection order and therefore, the Family Law Act was amended so that you've got section 63C which relates to 63 would specifically relates to the offense of breaching the order. Okay, so you got that provision, that's the first, that carries a maximum penalty of up to five years in prison. And the other provisions under section 1-1, anti social behavior, crime and Policing Act of 20 14, which brought into second offense of forced marriage. So it's actually now offense of forced marriage. So irrespective of whether you've got a forced marriage protection order or not, one can prosecute for this offense and this is where somebody else to force somebody to marry or or coerce them into marry in those circumstances and that's where they can be convicted for this offense. So therefore, if they use violence threats, other form of coercion for the purpose of causing another person to enter into a marriage and they believe reasonable to believe that their conduct may cause the other person to enter into marriage without their fault and free consent, Then this is where they could be guilty of this offense. This is where this particular offense then comes into play and a person guilty of this offense is liable on summary conviction To imprisonment for a term vaccine, 12 months or fine. But an indictment, you can see the maxim pen off to foot. This is actually five years for a term not exceeding seven years. And there have been cases where people have been convicted for forcing persons to marry in these circumstances. So you can see it's obviously a very, very significant and necessary a set of Offenses that have come into play back in 2014. Right now, when you are dealing with cases involving forced marriage, I would suggest that you also have a look at the websites and there's some very useful websites in particular. There's a forced marriage unit website which is part of the following common government commonwealth offices, forced Marriage unit website. There's a lot of very, very useful information on that and I'll put the link there for you. But also there's some very useful statistics which are made available every year. And I just access to these statistics On 30 October 2021. So just yesterday, in fact, and these statistics are as of one July 2021, they do relate to the stats of 2020. They are always a year behind because obviously need that time to be able to gather them. But these were published on one July this year. So as new as they can be a most recent and it's worth looking at these because it gives you a very good demography of actually where forced marriage is taking place. And not just here in England Wales, but across the UK and indeed across the world. And it's really good to see the statistics to see where forced marriages occurring more in some areas than in others. But also to me it highlights the sheer volume of cases and it really is quite significant to show that there's a lot of advice given. So the forced marriage unit, for example, as of that period In 2020 gave advice or support In 759 cases relating to a possible force marriage. So you can see obviously to force my unit are playing a significant role here and it's good to see that so many people are seeking the advice and the support that they require in these circumstances and like they forced marriage isn't something that is necessarily taking place in a particular community or particular area. This is worldwide it supplies across the world and I think sometimes people do get, for example, the concept of forced marriage and arranged marriage mixed up as arranged marriages which are prevalent in many cultures and religions all around the world work fantastically well and most arranged marriages work brilliant. But sadly some marriages which are arranged, it will be forced and and it's important to bear in mind that we do make that distinction because there is obviously a very, very big distinction between them. This is where I wanted to also inform you about this case of West Sussex County Council and Chief constable of Sussex Police. This was a very useful case a few years ago and what this really looks like is emphasizing the importance in the drafting to make sure that the orders that one is seeking are clear and affair to all parties, not just to the applicant, but indeed also to the respondent as well. So, this is a 20 18 decision had done by Mr Justice Williams, sitting in the family division of the High Court. And it was a case involving one whereby two Children who were taken to Pakistan by their parents and there aren't and the police in fact applied and successfully obtained a without notice forced marriage protection order for the benefit of these two Children who were taken overseas with a view to being married, I'm forced against their will. So the order was made, It was emailed across to the parents in Pakistan and the aunt. But the order specifically required for them to ensure that the Children were returned back to the UK Within 24 hours. And that was a difficulty here because even though those mandatory orders are made to ancillary orders that I mentioned earlier, which get attached to the forced marriage protection order, of course, to ensure that the person concerned is adequately protected, that his lordship did say that whilst his mandatory orders are being sword, whilst the Section 63 criteria still applies, I. E. Taking into account all the circumstances of the case. The court nonetheless has to be satisfied un appropriate evidence that the making of these orders is both necessary and a proportionate step. And what his lordship was really emphasizing on was was was this problem here, was that because the orders required the Children be returned within such a short period of time. There were overseas though in Pakistan obviously they had to be returned flights book. They had to be the confirmations of that had to be brought back within that very short period of time. And his lordship said that where the order is to bite as his lordship described it almost immediately. I once it's served upon them, the order immediately becomes effective and any to act upon it and where it's going to be placing them on this under this obligation to ensure that Children are returned within this very short period of time if they were unable to do so which then carries with it potential penal consequences, Both civil and criminal penalties for breach. Then in your circumstances one has to ensure that they do have the benefit of being able to take legal advice and to be able to return the matter back before the court to seek variation. So the net effect of these orders were this even though they were necessary and the orders were made and were made without notice basis and it was served. Nobody was disputing the fact that the forced marriage protection orders were necessary. But the concern here was the ancillary provisions requiring the Children to be returned within that very short period of time because in fact on the facts that the Children were returned But it took about a week for them to be brought back. And that wasn't for one to try and that was simply because that was the earliest way in which the return flights could be obtained and the Children brought back. But even though they were returned within that time, clearly the parents and the aunt was still at risk of being both criminally and civilly liable. And that's why it's very important when you are dry to need orders to make sure that respondents do have the opportunity of complying with the various provisions and the order. But secondly that they have the opportunity of being able to take appropriate legal advice should they need to return the matter back before the court for variation or discharge. Otherwise, you can see that the orders will be somewhat disproportion and therefore won't give the respondents that right to a fair trial in that regard, particularly where as in this case the orders are being made without notice. Well obviously they would not have been a tennis court at the point at which the order was made. Okay? So that brings this first session to an end. So you can see of code, a fair bit of information with you are looking at a position of forced marriage in particular would be developing this further in the next session, I'll be going through some more case law with you and also. Then we'll start looking at so many elements surrounding female genital mutilation protection orders also. So thank you very much indeed for listening. I hope that's being used for so far. And I speak to you next time. Thank you very much. Bye for now.
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