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by Zimran Samuel, Barrister at 42 Bedford Row
The government's most recent campaign to bring more attention to the problem of forced marriages has been welcomed by many of the professionals who deal with such cases on a daily basis. Statistics show that the cases of forced marriage are on the rise during the summer months when children are on leave from school. The government's Forced Marriage Unit received 400 reports between June and August last year.
Whilst the victims of forced marriages are wide-ranging, the vast majority of international cases relate to Pakistan. In a typical situation a young British Pakistani girl is taken to Pakistan under the pretense of a family holiday. Once there she is forced to marry someone she has never met before (often a first cousin). In some cases the victim of a forced marriage is not allowed to return to this country until she has consummated the marriage.
The case of Shafilea Ahmed last year was a tragic example of the desperation faced by someone being forced to marry. Shafilea was a student who wanted to become a lawyer. She reportedly swallowed bleach during a trip to Pakistan in 2003. Shafilea had turned down a suitor in an arranged marriage during the trip, though her parents denied any attempts to pressure her into the marriage. They were convicted of her murder last year.
Currently, the main legal protection to victims in this jurisdiction comes in the form of the Forced Marriage (Civil Protection) Act 2007. Despite the existing legal mechanisms, the 2007 Act was brought in as Parliament saw a clear need for a specific human rights based response to this issue. It was introduced as a Private Member's Bill by Lord Lester of Herne Hill who was also the pioneer behind the Human Rights Act. Since the 2007 Act came into force on 25th November 2008, it has given the courts across the country greater flexibility in dealing with forced marriages. It places victims at the centre of how protective orders are framed while providing powers of arrest and robust enforcement mechanisms to county courts across the country.
The government now intends to make forced marriage a criminal offence. Whilst in many respects this may seem like a logical step, there remains a real danger than criminalising forced marriages will make it harder for victims to come forward and seek help. Most victims of forced marriage simply want help from professionals to return to this country or want help in preventing a marriage from taking place; they do not usually want their parents to go to prison. If young girls already under intense pressure feel that those closest them will face the full force of the criminal law, they may be less likely to ask for professional help.
The proposal for a criminal law is not the first misguided approach to dealing with forced marriages. The previous government raised the minimum age for a person to be granted a visa for the purposes of settling in the United Kingdom as a spouse from 18 to 21. The purpose of the amendment was not to control immigration but to deter forced marriages. However the Supreme Court in R (Quila and another) v Sec of State for the Home Dept  UKSC 45 determined the restriction discriminatory and against the right to a family life. It was not a lawful way of preventing forced marriages and nor was there any evidence that it would deter such practices.
Sameem Ali, a councillor from Manchester has long campaigned against forced marriages and has spent a lot of time speaking to teachers and children from a safeguarding perspective. Sameem was herself taken to Pakistan and forced into a marriage when she was just 13 years old. She does not think that criminalising forced marriage will make any real difference within her community and indeed has real concerns that criminalisation would drive the practice further underground.
Needless to say that there are instances when a victim may want a prosecution and a criminal prosecution may be very much in the public interest. However there are already laws in place to relating to offences against the person, aiding rape and child abduction. There is little evidence that the threat of a criminal prosecution specific to an offence of forced marriage would act as a deterrent. The criminalisation of other practices around which similar considerations of victims not coming forward apply, such as female genital mutilation, has made little difference.
The current civil protection offered by the 2007 Act is obviously very different from a criminal law as victims of forced marriage are much more in control of whether proceedings go ahead. Judges in forced marriage proceedings are able to make protective orders preventing a marriage from taking place or ordering the return of a child to this jurisdiction from abroad. However a judge is not always compelled to make specific findings.
Campaigners and professionals welcome the latest drive towards increased awareness on this important issue. However the government must continue to keep victims at the centre of any new provisions if unintended consequences are to be avoided.
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The practice title for family lawyers engaged in/dealing with issues European and worldwide