Heshu was the daughter of Iraqi Kurd refugees who came to Britain in 1993. She flourished in this country and was studying for her “A” levels at the time of her death. What precipitated her death was her relationship with a Lebanese Christian boyfriend. She became a virtual prisoner in the family home and eventually she was murdered by her father in a frenzied stabbing attack. At the start of his trial he pleaded guilty and the judge took into account the cultural issues which made the defendant susceptible to responding as he had. The motivation of family “honour” is now deemed to be an aggravating feature rather than mitigation.
As with deaths of very young children, lessons have had to be learned over the years from failures of statutory agencies who were ill prepared to deal with such sensitive and difficult cases. One example is that of Banaz Mahmod, who was also an Iraqi Kurd refugee. She entered into an arranged marriage but when that proved violent she returned to her family and then formed a relationship with a young man who was considered to be unsuitable. She made contact several times over many months with the police, informing officers that she was in fear for her life from members of her family, though also expressing reluctance for the police to become involved and insisting that she felt safe at home. Following a three-month missing person inquiry, her body was discovered in a suitcase buried in a garden. Her father, uncle and another relative were convicted of her murder.
Subsequently, the Independent Police Complaints Commission found that there was a lack of awareness within the police forces concerning the trigger factors of domestic violence and the impact that cultural issues could have on outcomes. The IPCC recommended that police forces should recognise that so-called “honour based violence” is more prevalent than previously understood and that this type of crime crossed cultural boundaries. Police forces were also advised to develop awareness through training and community partnerships.
The 2007 Act
The 2007 Act inserts Pt 4A into the Family Law Act 1996 which enables the courts to prevent forced marriages and provide recourse for those already in forced marriages – the definition adopted generally by the Government and other statutory agencies is “a marriage without consent of one or both parties and where duress is a factor”. The new legislation is modelled along the framework of the domestic violence legislation under Pt 4. Under s 63A of the Act the courts have the power to make a forced marriage protection order containing prohibitions and measures appropriate to the particular circumstances of a case, in order to protect a person against conduct that may lead to them being forced to marry; or to protect a person who has already been forced into a marriage. The courts must, in deciding whether to make an order, “…have regard to all the circumstances, including the need to secure the health, safety and well-being of the person to be protected” (s 63A(2)) and must “…in particular, have such regard to the person’s wishes and feelings (so far as they are reasonably ascertainable) as the court considers appropriate in light of the person’s age and understanding” (s 63A(3)).
The Act gives the court a very wide discretion in determining what measures need to be taken and under s 63B(1) the court may include in the order “such other terms” as may be appropriate. Terms of an order could include, for example, handing over a passport; disclosure of a person’s whereabouts; preventing a person being taken abroad; repatriation of a person taken abroad; protection from intimidation, violence and retaliation; and prohibiting a marriage ceremony from taking place.
Under s 63H the court may attach a power of arrest and must do so, in applications made with notice, if the respondent has used or threatened violence (unless there would be adequate protection without the power). On an application without notice, the court may also attach a power, if there is a risk of significant harm. Where a power of arrest is attached the police may arrest without a warrant an individual whom they have reasonable cause to suspect is in breach of the order or is otherwise in contempt of court. This has a similar effect to the consequences of breaching a non-molestation order. However, the new provisions go further in that a power of arrest may be directed to any person who is, or might be, involved in a forced marriage. This is by virtue of the fact that a forced marriage protection order can be directed at individuals who are not respondents but who are, or may become, involved in some respect. Therefore the power may be used to arrest any person who breaches or frustrates the terms of an order even though they are not a party to the original proceedings.
The other main difference between the new provisions and the domestic violence legislation is that an applicant need not be the person requiring the protection of an order. This is because often the victim of a forced marriage may be restrained or intimidated from taking action, or may have been taken abroad. Moreover, there are no special requirements for leave for applicants under the age of 16.
It is anticipated that relevant third parties who may apply will not only include individuals aware of incidents but also NGOs, local, education and health authorities and the Forced Marriage Unit (through the Secretary of State). Judges are available 24 hours to deal with emergency cases.
The joint Home Office/Foreign and Commonwealth Forced Marriage Unit supplies statutory guidance to all agencies with a duty to safeguard children and adults. The guidance addresses specific arrangements that may inadvertently place a victim at risk of harm, such as failure to share information appropriately between agencies. The Unit deals with about 400 cases a year but that is not thought to be near the true total of those who are in need of help. The Association of Chief Police Officers launched a national strategy for honour based violence in September 2008. The Crown Prosecution Service has trained 22 specialist prosecutors and is currently revising its legal guidance which will be made available to all prosecutors and to counsel instructed in these cases. The Attorney General has been very supportive of these efforts.
One of the first forced marriage orders under the new Act was served on the family of Dr Humayra Abedin, a trainee GP based in London. In August 2008 Dr Abedin flew to Bangladesh believing that her mother was very ill. Once in Bangladesh she was imprisoned by members of her family in their home and her travel documents were taken from her. She managed to alert friends in Britain by text message but that prompted her family to confiscate her phone. She was bound, gagged and taken to a psychiatric hospital in Dhaka where she was injected daily with mood stabilisers. Her parents wanted her to marry a man she refused to marry and they disapproved of her relationship with her non-Muslim boyfriend back in London. In November 2008, under the influence of drugs, Dr Abedin entered into a marriage against her will and under duress. Subsequently, the High Court in London issued an injunction under the new legislation against the perpetrators of this forced marriage and with the cooperation of the Bangladeshi courts the doctor was able to return to Britain. It is important to note that Dr Abedin was not someone who would usually be considered to be a vulnerable adult. It is also worth noting that the law applied to her as someone resident in this country although not a British national.
The way forward
The importance of this area of law prompted the recent seminar, “Forced Marriage: Law, Religion and Practice” (see box, left) and demonstrates the shared commitment across all sectors in tackling the issue. The way forward, the panel was clear, was information and education.
Thus far the enactment of the forced marriage legislation has been a positive step in encouraging those affected to come forward and assuring them of protection under the law. Where a forced marriage protection order is in place a victim, or potential victim, of a forced marriage has a civil remedy in place without necessarily criminalising those against whom the order is made. Practitioners dealing with such cases will need to be alive to the practices and nuances within minority communities through greater cultural awareness and be creative in considering a range of different measures that may need to be enforced under the court’s wide discretion to protect those affected.
Khadija Ali is a family barrister and Joint Head of “Pro Bono in the LMC”– organisers of the Forced Marriage Seminar. Lynne Townley is a criminal barrister and a senior policy adviser to the CPS
Forced marriage: the seminar
In April 2009 the seminar, Forced Marriage: Law, Religion and Practice, was held at the London Muslim Centre. Speakers on the panel were the President of the Family Division, Sir Mark Potter, Mr Justice Munby, Anne-Marie Hutchinson OBE, who was the solicitor in the Dr Abedin case, and the Imam of the East London Mosque. The seminar brought together a large audience from the legal, religious, charitable and community sectors.
As Mr Justice Munby pointed out, the tradition of arranged marriage operates successfully in many communities and should be respected. Forced marriage, on the other hand, “is a gross abuse of human rights and an appalling practice with no social or cultural imperative or one that recourse to any religious belief can justify.”
The seminar raised the following important points.
- The test for undue pressure must have a subjective element. In determining what amounts to undue pressure on a particular person it is necessary to take a subjective consideration, based on their age, background and personality.
- Education is the best way to get to the root of the social problem.
- Education and awareness programmes not only for those directly affected but also for parents, families, the wider community and even the media about practices which are acceptable and those which are totally abhorrent was a welcomed suggestion put forward by the Imam. He further emphasised that “marriage is an important part of Islam; a free and willing contract between a man and woman to spend their lives together. Islam teaches us that parents are the guardians of their children’s welfare and security; forced marriages go against this teaching.”
- Applications under the 2007 Act are likely to increase. Although the 2007 Act has not been in force for long the judges expect that over time there will be an increase in the number of cases that come to court.
- There is a danger of stereotyping based on bias and ignorance and careful scrutiny of the evidence is required. When asked about how profound the issue of evidence is in such cases, the judges answered that it was no more or less of a problem than in most family cases. The real danger arises from stereotyping based on bias and ignorance. Allegations may be made for collateral purposes and therefore judges will have to be careful not to make assumptions but listen to the evidence carefully.
The chairman, Robin Knowles CBE QC, closed the discussion by highlighting with reference to a document signed by Muslim organisations that “the legacy of this seminar is that these three points have been agreed by the leading Islamic institutions in UK: that forced marriages are wrong, that they should be condemned by all and that individuals have to give their consent before marriage.”
The panel were unanimous in their view that information and education was a key part of the solution; the community should take the lead in promoting a better understanding of acceptable practices from a social, cultural and religious perspective. And as for the law, Mr Justice Munby emphasised that the message is clear: “spread the word and make sure the message gets to everyone – forced marriage will not be tolerated; the law is there to protect everyone.”