I. Introduction
Forced marriage raises immensely complex and sensitive problems, encompassing social,Footnote 1 gender,Footnote 2 ethnic, religious and economic issues which arise from intersecting questions of gender, culture and sexuality. It is an increasing problem in both France and EnglandFootnote 3 as both countries attempt to deal with the difficulties in a sensitive and multifaceted way. A comparative study in this regard can be of value to both jurisdictions, where the issues are similar but the solutions vary, especially due to the differences between the English common law and the French civil law systems. Actions against forced marriage may, in some cases, be constituted as a threat to a community's sense of self-identity and lifestyle from the social or cultural influence of the wider society. An outraged reaction to this practice should not be perceived as a desire to punish those communities or to limit immigration. This type of response by a more dominant British or French culture would be counter-productive and, in fact, only serves to aggravate the problem.Footnote 4
The right to marry is a freedom recognized by the French Constitutional Court as having constitutional value,Footnote 5 with the conditions for marriage set out in the Civil Code, in particular the condition that there is no marriage where there is no consent.Footnote 6 For the working group ‘Femmes de l'immigration’, the right to marry is the freedom to marry or not to marry, to choose one's spouse, to break an engagement and to live as a couple outside marriage.Footnote 7 Forced marriage has been described in the French Parliament as ‘the situation in which a person is deprived of the freedom either to marry or to remain single, or to choose their spouse’.Footnote 8 Similarly, the English Government Consultation Paper defines forced marriage as ‘marriage that has taken place without the consent of one or both parties or where consent is extracted under duress’,Footnote 9 emphasizing lack of consent as the defining factor.
Approximately 300 cases of forced marriage are reported to the Foreign and Commonwealth Office in England each year.Footnote 10 Other estimates suggest that 1000 women are annually subjected to forced marriage either in England or during a visit to India, Bangladesh or Pakistan under the guise of a holiday or visiting a sick relative.Footnote 11 There are no official figures on the number of forced marriages in France as no study has been carried out in this respect, but it is generally stated that 70,000 adolescents are affected by forced marriage.Footnote 12 This phenomenon is not marginal and appears to be growing, even—paradoxically—when the practice is in decline in the country of origin.Footnote 13 The increase in forced marriages in France has been explained by a combination of demographic and administrative reasons—the young girls born into the policy of family reunion at the beginning of the 1980s are now reaching marital age.Footnote 14 It is also believed that the progressive emancipation of French women from immigrant backgrounds is contributing to the rise in this practice.Footnote 15
In both England and France, forced marriage would appear to have become a much more challenging problem for the younger generation than for the middle-aged and older groups. Although in England increased negotiation and accommodation is emerging among middle-aged parents involved in this practice, there is still a lack of clarity as to the exact definition of what constitutes coercion or lack of consent among this group. Younger people who have grown up in England or France usually have a more developed sense of individualism, largely as a result of education and social mobility. The language differences between the older and younger generations mean that oral traditions are not transmitted so easily: arranged marriages are still acceptable to some young people but with a greater degree of choice.Footnote 16
As the Mission d'information sur la famille et les droits des enfants states, ‘the number of forced marriages is not an essential question, in the respect that, even if it was rare, this practice is intolerable.’Footnote 17 It is clear that forced marriage is indicative of non-consensual sexual relations, and can lead to depression, unwanted pregnancies and physical violence, often linked to sequestration and psychological abuse.Footnote 18 A forced marriage is considered by the working group Femmes de l'immigration to be violence and a deprivation of civil liberties, which neither tradition nor custom can justify.Footnote 19 The British refusal to accept this practice is indicated by its enactment in July 2007 of the Forced Marriage (Civil Protection) Act, which will provide the victims of abuse or those assisting them with civil, human-rights-based weapons in the battle against forced marriage and also reflects a societal and ideological response to this breach of fundamental human rights.
This article aims to conduct a comparative analysis of the way in which the problem of forced marriage is being tackled in England and France. Stressing the practice as a breach of human and children's rights, the article first deals with the English and French debate on criminalization and its rejection as a solution. We note that forced marriages are not only about women—in England and Wales, 15 per cent also affect men and gender variations need to be accommodated.Footnote 20 What is proposed in this article is generally gender neutral, although proposals take into account the fact that 85 per cent of the victims are women. We turn to civil law as a more appropriate means of addressing the practice, since this is an area in which both countries have seen reforms but in which the approaches differ according to each legal system. We do not attempt to deal with the wider difficulties of immigration and international law, or the plight of dual nationals, but focus primarily on nationals of France and England who are involved in this practice and what can be done to assist them.
II. Criminalization: the Offence of ‘Forcing Someone to Marry’
There is no specific offence of ‘forcing someone to marry’ in English criminal law, but many other crimes may be committed in the context of a forced marriage such as common assault,Footnote 21 cruelty to persons under 16,Footnote 22 failure to secure regular attendance at school of a registered pupil,Footnote 23 child abduction,Footnote 24 rapeFootnote 25 or kidnapping.Footnote 26 Similarly in France, this breach of human rights is not criminalized but it is possible to bring prosecutions for various offences, particularly against the spouse for rapeFootnote 27 and the parents for complicity.Footnote 28 However, if this practice is to be described as an unconscionable breach of human and children's rights, why have England and France not made it a crime to ‘force someone to marry’, as is the case in Belgium,Footnote 29 Norway,Footnote 30 and Germany?Footnote 31 Why did the British Home Office announce in 2006 that it no longer proposed to criminalize forced marriage, scrapping earlier plans to outlaw the practice?
The Home Office was clearly concerned about the number of forced marriages taking place either in England or involving British citizens. However, in 2000 a Home Office Working Group inquiry into forced marriage, ‘A Choice By Right’, concluded that no specific criminal offence was necessary to deal with forced marriage.Footnote 32 Despite this, in 2005, the later Consultation Paper of the Home Office, ‘Forced Marriage: A Wrong Not a Right’, revised its view and suggested a new and separate crime of ‘forcing someone to marry’.Footnote 33 Only five grounds were cited in favour of a new criminal offence. The reasons given in support of criminalization were that it could change people's views about forced marriage; criminalization could act as a deterrent; it might empower victims to negotiate with parents; it could raise awareness of public sector employees and increase confidence in tackling forced marriage; and it could be easier to prosecute perpetrators. The arguments against criminalization were also forceful—namely that victims may not ask for help for fear of their families being prosecuted; or parents may remove children from the country at an earlier age. It was also argued that sufficient offences already exist in the criminal law to prosecute those involved in the practice, although there might be a need to amend the territorial application of some of these offences. Furthermore, successful prosecutions are no more likely to succeed than those for current criminal offences. Such prosecutions also have a disproportionate effect in black and ethnic communities and they may be financially costly. Reconciliation with families might be more difficult and involvement in prosecution could be harrowing for the victims.
One hundred and fifty seven organizations responded to the proposal to criminalize forced marriage, including the Crown Prosecution Service and marriage registrars, most of them opposing it.Footnote 34 The Liberty Report argued both that the deterrent and conscious-raising effects of criminalization were doubtful, and that remedies already existed within criminal law to deal with such types of marriage.Footnote 35 Liberty further suggested that criminalization could be counter-productive in driving forced marriage underground and leading to even less reporting of the practice.Footnote 36 Liberty proposed that the Government should continue with various practical and non-legal steps which have formed the core of its action plan on forced marriage to date. In June 2006, the plan to introduce a specific offence of forced marriage was abandoned and the Home Office decided that such a law was not required in England.Footnote 37
In France, consideration has also been given to the creation of a criminal offence specific to forced marriages, as has been the case for the crime of circumcision causing permanent mutilation or infirmity.Footnote 38 Dekeuwer-DéfossezFootnote 39 believes that qualifying the use of pressure with a view to marriage as an offence would affirm the illegal and illegitimate character of this practice, just as making excision a crime was an effective means of underlining its unacceptable character for French society.Footnote 40 Larribau-TerneyreFootnote 41 has also defended the ideological value of such a measure, considering that ‘the populations concerned are still not afraid of the criminal law’.Footnote 42 The report of the working group ‘Women of immigration’ advocated the protection of victims by the punishment of those responsible for forced marriages with the creation of an offence of constraint to marry, contrainte au mariage.Footnote 43 However, as in England, there have been numerous criticisms of the move to introduce a new criminal offence; the reasons for opposing such an adoption are similar to those given in England. One of the main arguments against a change in the law is the concern that girls affected by forced marriages will not speak out if there is a possibility that their parents will face criminal sanctions.Footnote 44 At present, such girls rarely make a complaint, feeling guilt, and do everything to spare their parents, even in situations of extreme violence.Footnote 45 There is also a fear that the parents could, in reaction, adopt new approaches, such as sending young girls to their country of origin to be married, which would be an additional injustice for victims of forced marriages.Footnote 46 The Mission d'information sur la famille et les droits des enfants, in two reports of 2005 and 2006, advised Parliament against the creation of a new offence, considering, inter alia, that these practices belong to archaic customs, which the force of criminal law is not qualified to attempt to quell. However, conscious of the symbolic nature of the law and its pedagogic effect, it recommended that the Civil Code clarify that ‘constraint to marry’ may constitute a cause for annulment of a marriage, allowing the spouse who has been the victim of pressure to request such an annulment.
The Mouvement Français pour le Planning Familial (MFPF) further questions the sense of a criminal sanction in these complex situations of intra-family violence and has concerns with regard to its application and consequences, particularly when the issue of forced marriages has not been the subject of a study in France.Footnote 47 It argues that the implementation of the proposed new offence is unclear, enquiring at what stage an action would be brought: when the family informs the woman of the planned marriage; when the civil marriage is celebrated in France or abroad; or when the marriage, be it religious or civil, is consummated in France or abroad? Under which conditions would the procedure be put into place? Who must inform the competent authority? Would the criminal sanctions only concern the father and/or the mother, or others—perhaps distant relatives in France and abroad?
These seemingly impossible questions and the other problems facing the issue of criminalization in England and France inevitably focus the debate on the possibility of tightening up on civil remedies and the introduction of new civil law protective mechanisms. Greater success seems to lie in this course of action, especially if combined with increased collaboration between social services, consular sections, the police and housing authorities.
III. Civil Law Remedies to Counteract Forced Marriage
A. Preventative Pre-Marriage Measures
Due to the trauma suffered by victims in cases of a forced marriage, and the difficulties they may face in bringing the marriage to an end, it is essential that initially emphasis is placed on preventative measures against forced marriages. Preventative pre-marriage measures are vital in the battle against the practice, including increased regulation and checks on marriage, such as increasing the age of marriage and providing more careful monitoring in this regard. It has been recognized that more stringent restrictions on marriageable age alone are not enough to combat the problem of forced marriages, as they do not protect adults who are affected by such unions.Footnote 48 Moreover, numerous countries, to which those forced to marry may be taken, have legislation which permits young marriages.Footnote 49 In this respect, the French system has focused more trenchantly on the use of officials to detect forced marriage whereas the English legislature has elected to come to the rescue of victims.Footnote 50
1. France
(a) Marriageable age
A fundamental obstacle to combating forced marriages in France has been the legislative requirement for the minimum age of marriage. Until recently, the Civil Code fixed the minimum ages for marriage at 18 for men and 15 for women,Footnote 51 with a possible dispensation by a decision of the procureur de la République Footnote 52 on a case-by-case basis for serious reasons, such as when a young girl is pregnant.Footnote 53 Within FranceFootnote 54 and international organizationsFootnote 55 this difference in age, dating from a law of 1803,Footnote 56 was criticized as being discriminatory and was accompanied by calls to raise the legal age of marriage for women to 18, to bring it in line with that for men.Footnote 57 A change in the law was considered essential in the fight against forced marriages, as it would protect minors who are particularly vulnerable due to their immaturity, dependence on their family and legal incapacity.Footnote 58 Those threatened with forced marriages would be adults, and thus more mature, having the legal means to defend themselves and greater independence from their families.Footnote 59
The Civil Code was amended by the law of April 2006 reinforcing the prevention and repression of violence within couples and committed against minors.Footnote 60 The provision now states that both men and women must be at least 18 years old before they can marry.Footnote 61 This reform was unanimously adopted by both houses of parliament, as a change in the law had the backing of French political parties from all sides. As with a number of other amendments adopted by this law, it was done with the particular aim of combating forced marriages.Footnote 62 However, no changes have been made to the possibility of a dispensation being obtained for those under 18 and minors wishing to marry must have the consent of their father and mother.Footnote 63 There had been calls for such derogations to be repealed, especially as, in the case of a disagreement between the parents, this difference is taken to be consent.Footnote 64 Furthermore, whilst marriage has the effect of emancipating a child, the consequence of annulment of the marriage is that the spouse who is a minor loses the benefit of emancipation. Children forced into marriage by their parents may thus, paradoxically, fall back under parental authority.Footnote 65
(b) Interviewing future spouses prior to the publication of the banns
In France, the publication of banns by the registrar is compulsory before the celebration of a marriage.Footnote 66 Prior to 2003, the registrar was only required to receive a medical certificate from each future spouse before the publication of the banns. This procedure was considered to be insufficient to fight against fictitious and forced marriages.Footnote 67 Registrars had noted an increase in the number of marriages which they strongly suspected were forced unions and deplored the fact that they could not prevent their celebration.Footnote 68
Since a law of 2003,Footnote 69 an essential step in preparation for the publication of the banns is that the registrar must first interview the future spouses, unless such an interview is impossible or deemed unnecessary.Footnote 70 Whilst the law was introduced primarily to stop fictitious marriages, this provision can also be used to detect the occurrence of a forced marriage. If the registrar considers it necessary, they can request separate interviews with each person.Footnote 71 To offer greater protection to minors and ensure that they have the opportunity to express themselves freely, a legislative reform of November 2006Footnote 72 provides that where one of the couple is a minor, the interview must take place without the presence of the person's parents, legal representative or future spouse.Footnote 73 It has been suggested that the preliminary interviews should be made systematic as this would prevent automatic suspicion falling on those of immigrant origins.Footnote 74 However, the Mission d'information sur la famille et les droits des enfants believes this to be unnecessary and maintains that it would give rise not only to practical difficulties but also compromise the right to marry.Footnote 75
There had been concerns that interviews were not taking place in cases where they could be important in detecting forced marriages, for example when it was deemed impossible because one of the couple was abroad and required a visa to be interviewed in France.Footnote 76 There was also the problem that, with an increased workload and no possibility for registrars to delegate their work, some interviews did not take place due to lack of time.Footnote 77 A solution to these obstacles was provided by the law of April 2006, which empowered the registrar to delegate the interviews to other members of the registry service.Footnote 78 In addition, if a future spouse lives abroad, the registrar can now request that a French diplomatic or consular agent interview this person.
A circular from the Minister of Justice of May 2005Footnote 79 provides a list of the signs that may indicate the absence of free consent: one of the spouses is vulnerable, in a precarious personal or social situation (alone, delicate financial situation, difficult physical or mental health); the registrar is aware of a particular personal or social situation which leads them to presume that the person concerned, given their living or housing conditions, cannot freely accept the union; at the time of the submission of the dossier or at the ceremony, one of the future spouses is in a state of stupor or presents signs of recently having been hit; one of the prospective spouses has made statements, even if they are later withdrawn, about pressure from a third party, the other prospective spouse, their parents or close relatives.
(c) French procureurs' ability to investigate proposed marriages
In the case of a serious doubt as to the reality or existence of a person's intention to marry,Footnote 80 the registrar may notify the procureur de la République who can oppose the marriage.Footnote 81 The procureur then has a period of two weeks in which to decide either to allow the celebration of the marriage, to immediately oppose the marriage, or to suspend the celebration of the marriage to complete an inquiry.Footnote 82 On the expiry of the suspension, the procureur informs the registrar whether they will permit the marriage to take place or if they will oppose its celebration. The decision to suspend the marriage ceremony taken by the procureur may be contested by a future spouse, adult or minor, before the Tribunal de grande instance.Footnote 83
(d) Opposition to the celebration of a marriage
The banns are published in the town hall for 10 days, and no marriage can take place before the expiry of this period.Footnote 84 During this time certain family members of a future spouse or the procureur de la République may oppose the planned union,Footnote 85 which has the effect of prohibiting the registrar from celebrating the marriage.Footnote 86 Until recently, any opposition to a marriage was invalid after one year, and positive steps were required to renew the opposition after this time.Footnote 87 It was argued that as the procureurs oppose marriages as guardians of the public interest, it would be logical for their decisions to persist in time.Footnote 88 Following the legislative reform of November 2006, the period of invalidity no longer applies to an opposition from the State representative, which will only become ineffectual after a court decision to this effect.Footnote 89
(e) Further protective measures
If the health, security or morality of a non-emancipated minor is in danger, measures of assistance éducative Footnote 90 can be ordered by the juge des enfants.Footnote 91 This can be at the request of one of the parents, the minors themselvesFootnote 92 or the procureur.Footnote 93 The juge des enfants exceptionally may act automatically, without having received a request, if they are made aware of such conditions. In these circumstances, persons under the age of 21 are regarded as children.Footnote 94 The juge des enfants has extensive powers, and whilst the emphasis is on keeping children with their families, the judge can remove children from their parents and place them in care. The judge may also order an interdiction de sortie du territoire, prohibiting a child from travelling abroad.Footnote 95 In the case of a prospective forced marriage, whether the judge takes action or not will depend on the judge in question, and his or her individual response to the problem.Footnote 96
A person travelling abroad who thinks he may be the victim of a forced marriage can alert the customs or Air and Border Police of his fears.Footnote 97 The police have a duty to assist any national who states that he does not wish to leave the French territory and must protect citizens who believe they will be the victim of a crime, particularly in the case of minors where the police report may lead to the intervention of the judiciary.Footnote 98 The Mission Femmes Françaises à l'Etranger, Ministry for Foreign Affairs, has published a practical and legal guide for French women who are travelling abroad, which covers the question of marriage and provides advice on what to do if a woman suspects she will be the victim of a forced marriage.Footnote 99 This has been criticized, however, for being written in a way which is not accessible to all women.Footnote 100
The Mission d'information sur la famille et les droits des enfants has stressed that the professionals involved must learn to recognize the signs of forced marriage and know the means at their disposal to avoid the practice taking place in France and abroad.Footnote 101 The working group ‘Femmes de l'immigration’ has proposed the creation of a specific module of initial and continuous training for officials.Footnote 102 Such training would hopefully meet the criticism that the pre-marriage interviews have mainly been carried out with a view to stopping a union to enable a foreigner to obtain a residence permit or French nationality, and that they should also be orientated towards protecting the freedom of consent to marry and preventing forced marriages.Footnote 103 The authorities should be reminded that the interviews must be carried out in good conditions, with humanity and so as to provide individuals with a place to speak freely.Footnote 104
2. England
(a) Marriageable Age
In England, the minimum age of consent to marriage is 16.Footnote 105 Between the ages of 16 and 18 persons may not marry without parental consent but, despite this lack of parental consent—curiously—the marriage is still valid.Footnote 106 It is suggested that this anomaly needs to be removed from English law with concomitant increased regulation on the issue of marriageable age. The law could, for example, be changed to provide that where one of the parties is under the age of 18, the marriage is not valid, irrespective of parental consent. Consideration should be given in both England and France to the possibility of minors requiring a special permit in order to marry, a condition which has existed in Sweden since 2004.Footnote 107
(b) The Forced Marriage (Civil Protection) Act
The Forced Marriage (Civil Protection) Act, introduced in January 2007 as a Private Member's Bill by Lord Lester QC, a Liberal Democrat peer, aims to provide protection for the victims of forced marriage by means of civil remedies in the family courts.Footnote 108 Following the Second Reading, Lord Lester and the Odysseus Trust consulted on various proposals to amend the Bill before it proceeded to the House of Lords Grand Committee. Suggested changes included incorporating the Act into a new Part 4A of the Family Law Act 1996, extending the time limit for nullity petitions in cases of forced marriage and putting forced marriage guidance on a statutory footing. The final Act, which received Royal Assent on 26 July 2007 (and is to be implemented in Autumn 2008), amends the Family Law Act 1996 by inserting a new set of sections, which empower the High Court and county courts to make forced marriage protection orders (FMPOs).Footnote 109 The courts are given wide powers to include in FMPOs such prohibitions, restrictions or requirements, or such other terms as are considered appropriate and these may extend to conduct outside England.Footnote 110 An application to the court may be made by the person to be protected but may also be made by a relevant third party.Footnote 111 ‘Relevant third party’ means a person or body to be specified by order of the Lord Chancellor and could include relatives or social services departments of Local Authorities.Footnote 112 Any other person, such as a boyfriend, girlfriend, teacher or friend, may make an application with the leave of the court.Footnote 113 In certain circumstances, the court may make an order even though no application has been made.Footnote 114
An organization or person who is a ‘relevant third party’ assumes the responsibility of making applications on behalf of the victim. Such third party will need to be able to complete court forms, gather and produce evidence to the court, attend court for any hearings and apply for warrants of arrest. Support staff and legal expertise may be needed to assist a relevant third party, who must ensure that they have access to appropriate legal expertise both to conduct the application and to ensure that the correct procedure is followed.Footnote 115 Many organizations support victims of forced marriage, such as voluntary and charitable organizations dedicated to offering support and assistance to forced marriage victims. Government organizations also have a role to play in protecting people from forced marriage such as the Forced Marriage Unit; the Home Office; the police; Cafcass, who are appointed by the court to look after the interests of children in family cases; and local authorities. The relevant third party should be an organization or person who can gain and maintain the confidence of the victim.Footnote 116
There are no criteria set down in the Act for the Lord Chancellor to consider when making an order specifying who should become a relevant third party. The relevant third party is not required to seek the permission of the victim before they make an application, but the court will always be required to take into account the ascertainable feelings and wishes of the victim when considering whether to make an order. It is essential that only competent organizations or people should act as third parties in order to ensure that the victim is protected and to avoid possible misuse.
The Act specifically provides that the court may, in any case where it considers that it is just and convenient to do so, make a FMPO, even though the respondent has not been given notice of the proceedings.Footnote 117 Generally, the new legislation provides flexible remedies which can be adapted to the unique situations of different victims. It does not make it a criminal offence to force a person into marriage, but failure to comply with the terms of a FMPO will constitute contempt of court. Provision has been made for powers of arrest to be attached to an FMPO if the court considers that the respondent has used or threatened violence against the person being protected.Footnote 118 In these circumstances, police constables may arrest without warrant persons whom they have reasonable cause to suspect may be in breach of the order.Footnote 119
Adopting a ‘victim centred human rights approach’, the Act seeks to promote access to justice in county courts as well as in the High Court. The new law promises to be a skilful attempt to combat forced marriage at its inception. The emphasis is away from criminal law remedies and towards a type of hybrid which provides for a warrant of arrest where there is domestic violence but otherwise avoids the penal consequences of the criminal law. Clearly highlighting the importance of victim protection, this legislation is to be commended for neither attempting to criminalize the practice nor making it an immigration issue.
(c) Pre-marriage formalities
As far as pre-marriage formalities are concerned there is no formal provision for the interviewing of the parties prior to the marriage.Footnote 120 There are no special provisions requiring marriage officers to be on the lookout for cases of forced marriages or for interviewing prior to the marriage. In the case of a civil marriage, both of the parties have to give notice of the marriage to the superintendent registrar in the district or districts in which each of them has resided for at least the previous seven days.Footnote 121 Both parties must attend in person to give notice and this notice must be accompanied by a solemn declaration that there are no lawful impediments to the marriage and that the required consents have been given.Footnote 122 After 15 days, (during which time the notice is publicly displayed in the registry office), provided that there has been no objection to the marriage, the superintendent registrar issues a certificate.Footnote 123 A Church of England marriage must be solemnized after the publication of banns, displayed in the church, generally during morning services for three successive Sundays, at which point a third party could object to the marriage, although this is rare.Footnote 124
(d) Public law measures to protect children threatened by forced marriage
There are public law measures available to protect children threatened with forced marriage, provided an application is made. An application may be made for an Emergency Protection Order (EPO).Footnote 125 This may be made by anyone but only lasts for eight days, although it may be renewed for a further seven days. The Local Authority then need not release details of the whereabouts of the young person. However, when an EPO is made, parental responsibility is still shared with the parents. Where parents are a threat to the child, the court should be asked for a presumption of non-contact for the duration of the EPO. An Interim Care Order may follow an EPO.Footnote 126 The applicant will need to show the presence of a threat of significant harm to the child. A Prohibited Steps Order may also be obtained by a Local Authority to prohibit the removal of the child from the country without the permission of the court.Footnote 127 The Local Authority would need to seek the leave of the court before it obtained such an order. This order does not confer parental responsibility on the Local Authority. It would appear that in England, unlike France, there is no provision for the Crown Prosecution Service to oppose a threatened forced marriage.
(e) Wardship for children threatened with forced marriage
Sometimes young people are taken overseas on the false pretext of a family holiday or the wedding of a relative but are in fact to be married themselves. On arrival, their passports may be taken away from them. Once a young person has left the country, the options open to social services, other agencies or another person to recover the young person and bring that person back to the United Kingdom are limited. The normal course of action is to seek the return of the young person to the jurisdiction of England and Wales by making him or her a ward of court. Application for wardship is made to the High Court Family DivisionFootnote 128 and may be made by a relative, friend close to the young person or by the Child and Family Court Advisory Support Service (CAFCASS) legal services department. With the implementation of the Forced Marriage (Civil Protection) Act, there will be easier and cheaper means to approach the court for a remedy. Applications will then be able to be made in the county courts for a Family Protection Order even beyond the borders of this country.
In Re KR (a Child) (Abduction: Forcible removal by Parents) Footnote 129 KR, aged 16 and a British citizen of Indian origin, left her parents' home and attempted to establish herself in the home of her sister, P, who had previously left home and established a relationship with a man, to the deep disapproval of her parents. KR's father reported her to the police as a missing person and alleged that P had in effect kidnapped her. With the assistance of the police, KR was returned to the care of her father and he removed her to India where she was left in the custody of a relative. KR wrote to P, stating that she had been beaten by her father after being returned to his care, describing her condition in India as like being in a prison and asking P to help. On an application by P, Judge Singer made KR a ward of court. He then drew up an order in which he invited the Indian authorities to establish KR's whereabouts and to arrange for her to be put in contact with the British High Commission. KR succeeded in persuading her guards to take her to the High Commission and she was duly returned to England. The court emphasized that any sensitivity to consideration of traditional values and the concept of family authority should, in such circumstances, give way to the integrity of the individual child or young person. The voice of the young person was to be heard and should prevail in the highly personal context of an arranged or forced marriage.Footnote 130
(f) The inherent jurisdiction of the court for adults threatened with forced marriage
As the wardship jurisdiction comes to an end, the inherent jurisdiction of the High Court comes into effect.Footnote 131 That inherent jurisdiction can be used in the same way as wardship where there is evidence of an adult person being constrained, placed under undue influence or suffering under other disabling circumstances which may reduce the vulnerable adult's understanding and reasoning power so as to prevent him or her from expressing a real and genuine consent.Footnote 132 In this respect, the powers of the High Court, which it exercises in respect of its wardship and the inherent jurisdiction are, for all intents and purposes, identical.
An illustrative case concerned a deaf 17-year-old girl who was unable to speak.Footnote 133 The Local Authority was concerned that the family might take her to Pakistan to be married there to some unknown person, contrary to her will. The Local Authority accordingly applied to the court to invoke the inherent jurisdiction of wardship. As she was still under the age of 18, the girl could be made a ward of court, and injunctions were granted to prevent her from being removed from the jurisdiction or married. However, the main issue in the proceedings was what would happen to her once she was an adult. Both the Local Authority and the guardian took the view that, even as an adult, the daughter would need continued protection by the court, in relation of the specific issue of her proposed arranged marriage. The girl's expert evidence was that she wished to marry, but not yet, and she wanted to live in England with a husband who could speak English. The court held that its inherent jurisdiction could be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, was or was reasonably believed to be either under constraint or subject to coercion or undue influence or for some other reason deprived of the capacity to make a free choice.Footnote 134
The court also held, inter alia, that there was nothing to prevent a Local Authority from commencing wardship proceedings or proceedings under the inherent jurisdiction in an appropriate case. As a body with a genuine and legitimate interest in the welfare of the individual in question, a Local Authority should be given locus standi to apply. Guidance to the contrary in the document Young People and Vulnerable Adults Facing Forced Marriage: Practice Guidance for Social Workers (The Foreign and Commonwealth Office, 2004) was held to be ‘simply wrong’.Footnote 135 This case clearly acknowledged the broad inherent powers of the court in such cases and recognizes a wider locus standi to bring such an application. The locus standi issue has been addressed by the Forced Marriage (Civil Protection) Act, which, once operative, will allow ‘relevant third parties’ to make an application for a Forced Marriage Protection Order.Footnote 136
Despite the enactment of the Forced Marriage (Civil Protection) Act, it would appear that more could be done to control marriage at the preventative pre-marriage stage. In 1997, the Blair Government proposed ‘measures to strengthen the institution of marriage, including an enhanced role for marriage registrars’.Footnote 137 Improved arrangements to help people prepare for marriage were to include a ‘wider role for registrars to give better support to marrying couples’.Footnote 138 The proposals with regard to requiring both parties to give notice of the intended marriage, lengthening the time which has to elapse between giving notice and the celebration of the marriage were hastily incorporated into the Immigration and Asylum Act 1999 to tighten up on those acquiring British citizenship via the marriage route. However, recommendations to enhance the role of the registrars encountered greater difficulties.Footnote 139 The White Paper Civil Registration: Vital Change was eventually published in 2002, but none of these proposals have been implemented. With the increasing problem of forced marriage, further legislative reviews of the law on formalitiesFootnote 140 are urgently required in England. Some of the French legislative solutions might be adapted to attempt to curb non-consensual and/or under-age marriage.
B. Protective Post-Marriage Measures
Once a marriage has taken place, the most obvious remedy is to bring an action for nullity. In England applications for nullity are rare, largely owing to the ease of divorce.Footnote 141 However, for those from a cultural background which does not easily sanction divorce, an application for nullity would seem the best route. For many victims of forced marriage, an application for nullity is not an easy course of action. The application does require some legal awareness of its availability and ability to access the legal system. Victims must establish their case of duress by oral evidence in open court. There may be cases where an applicant would be reluctant to give such evidence with members of his or her family present. Case law has recognized the need for public funding to be made available so that such cases can be brought before the court.Footnote 142 In France, however, since legislation in 2006, the procureur may bring an application for annulment where consent has not been given freely.Footnote 143 The procureurs are now able to request annulment of the marriage for vitiated consent of their own accord and the time available for the parties themselves to bring such actions has been extended. It is hoped that in England the Forced Marriage (Civil Protection) Act, once implemented, will facilitate such actions and use the lighter hand of the civil law to penalize the perpetrators.
1. Annulment
In England, a marriage is voidable if either party to the marriage did not validly consent to it either through duress, mistake, or unsoundness of mind.Footnote 144 In earlier cases, it was held that a spouse pleading duress must prove that his or her will had been overborne by genuine and reasonably held fear caused by the threat of immediate danger to life, limb or liberty so that the constraint destroys the reality of consent to ordinary wedlock.Footnote 145 This strict test was followed in two cases involving young immigrant girls who had been forced into marriage by their parents. In Singh v Singh Footnote 146 and in Singh v Kaur Footnote 147 the women were held not to have fulfilled the requirements of the objective test. Their age and cultural background, which demanded parental obedience, were not taken into account. However, in Hirani's Footnote 148 case, a simple subjective test was adopted which measured whether the pressure was such as to destroy the reality of consent and overbear the freedom of will of the individual.Footnote 149 This allowed the young girl to have the marriage invalidated on the ground of duress in terms of the Matrimonial Causes Act.Footnote 150 It is essential that those who are forced to marry because of cultural and family pressure should be able to obtain a decree of nullity where there is evidence of duress based on the subjective test laid down in Hirani's case.Footnote 151
In France, before 2006, the Civil Code provided for two types of vices du consentement, vitiated consent, with regard to marriages, absence of free consent and mistake as to the person or the substantial qualities of the person.Footnote 152 The request for annulment is made by the spouse whose consent was not freely given.Footnote 153 For many years, fear of one's parents was not accepted as a reason for nullity because ‘reverential fear’ is specifically excluded as a ground of annulment in the general context of the law of contract and the rule was applied to contracts of marriage.Footnote 154 However, there was a change in the case law with ‘reverential fear’ being considered as creating an absence of freedom where the constraint was abusive.Footnote 155 Furthermore, the court could take into account the cultural background of the case.Footnote 156
In numerous cases of forced marriage, there is only emotional pressure exercised by the parents, as opposed to physical violence, but the victims do not dare oppose them and it is this pressure which vitiates the consent.Footnote 157 There were therefore calls for it to be made clear that the general provisions of the Civil code regulating contracts which prohibit ‘reverential fear’ as a ground of annulment do not apply to marriage contracts. The law of April 2006 added that the exercise of constraint on the spouses or on one of them, including reverential fear towards an ascendant, constitutes a case of annulment of a marriage.Footnote 158 This amendment has a wider impact as reference to this condition is now found in provisions providing for the interviewing of future spouses, opposing a proposed marriage and transcribing a foreign marriage on the French consular register of births, deaths and marriages (discussed below).Footnote 159 Registrars and diplomatic or consular agents should now look, not only for signs of lack of consent, but also whether consent is given freely.
Before the reform of April 2006, the application for annulment was no longer admissible whenever there had been continuous cohabitation for six months from the moment when the spouse acquired his or her full freedom or he or she discovered the mistake.Footnote 160 This time period was deemed to be problematic as six months was considered too short and the starting point for this period too difficult to establish.Footnote 161 The law of 2006 increased the length of time to five years from the marriage.Footnote 162
Victims are not always in a position to request the annulment of their marriage due to social and family pressures.Footnote 163 In practice, these situations are often denounced by people close to them— friends, class mates—and not by the victims themselves, who have sometimes been sent abroad by their family.Footnote 164 Such difficulties led to a suggested reform to allow the procureur de la Republique to bring an action for annulment where the consent was not given freely.Footnote 165 The procureur could only request annulment, inter alia, when there was a lack of consent by one of the spouses.Footnote 166 However, this was interpreted to mean a total absence of consent, and thus did not cover the situation where a person had gone through with a marriage due to family pressure. The law of April 2006 expressly provides that the procureur may bring an application for annulment where consent has not been given freely.Footnote 167
2. Forced Marriage (Civil Protection) Orders
In England, the county courts or High Court will have the power to grant a Forced Marriage Protection Order in respect of a person who has been forced into marriage (FMPO).Footnote 168 Such an order may contain any prohibition, restrictions or requirements as the court considers appropriate for the purposes of the order and relating to conduct outside England as well as within the country.Footnote 169
C. Extra-Territorial Measures
Many victims are taken abroad where they are forced into marriage with the result that regulation of the practice territorially only assists a minority of victims. Both the French and English foreign offices have committed themselves to helping those persons stranded abroad. Each jurisdiction has stressed the distinction between arranged and forced marriages, and committed themselves to a thorough investigation of the nature and extent of the problem. Both countries are attempting to assist the victims of forced marriage through Consular staff overseas.
A French national may marry abroad before a French diplomatic agentFootnote 170 with the marriage celebrated in accordance with French lawFootnote 171 and the diplomatic or consular agent thus has the possibility of verifying the consent of the interested parties, before or at the time of the ceremony. However, only a small minority of French nationals marry before embassy or consular officials.Footnote 172 Most marriages between two French nationals or a French national and a foreign national are celebrated before the authorities of another country.Footnote 173 Until recently, such marriages were subject to the prior publication of banns with the diplomatic or consular agent of the country in question.Footnote 174 Diplomatic and consular agents attested to the respect of this requirement by issuing a certificate of capacity to marry to the French national(s). These officials were also responsible for transcribing the marriage celebrated abroad onto the French register of births, deaths and marriages, état civil consulaire français, at the request of the French national(s).
From 2003, when the diplomatic or consular agent had a doubt as to the freedom of consent of one of the spouses, they were required to interview them, either when a certificate of capacity to marry was requested, at the time it was issued, or following an application for transcription of the foreign marriage onto the French register.Footnote 175 This procedural requirement was introduced primarily to stop marriages by foreign nationals solely for the purpose of obtaining a residence permit or French nationality,Footnote 176 although these measures were also seen as a way of combating forced marriages.Footnote 177 Prior to this, diplomatic and consular agents did not have sufficient means to control the reality of the consent of spouses if the union respected the relevant legal requirements of the country in which the marriage took place. They were obliged to transcribe the foreign marriage certificate onto the French register, which was not considered satisfactory from the point of view of women's rights.Footnote 178
If the diplomatic or consular agent charged with transcribing the foreign marriage certificate on to the French register considered that there were serious indications that the marriage could incur annulment, they had to inform the procureur and suspend the transcription. The possibility for such officials to stay the transcription and for the procureur to request annulment of the marriage had existed since 1993,Footnote 179 but was rarely used.Footnote 180 Following the introduction of interviews in 2003, changes began to happen, for example with the French consulate in Turkey refusing to transcribe several marriages due to the lack of consent of one of the spouses.Footnote 181 According to the Ministry of Foreign Affairs, the number of times the procureur was contacted by consular posts following a request for a transcription of a marriage certificate tripled in three years, increasing from 500 in 2001 to close to 1,500 in 2004.Footnote 182 Most cases concerned marriages of convenience, but around 20 cases per year involved suspicions of forced marriage.Footnote 183 Conversely, there have been alarming reports of the French consulate in Morocco transcribing marriages at which the woman has not even been present.Footnote 184
In practice, very few French nationals requested a certificate of capacity to marry and there were no real sanctions for not obtaining one.Footnote 185 The control of the celebration of a marriage abroad was therefore mainly at the time of the request for transcription of the marriage onto the French register.Footnote 186 However, even if the marriage certificate was not so transcribed, it was considered as valid and could be relied upon in France. The two situations in which transcription was required were if the foreign spouse wished to obtain a residence permitFootnote 187 or French nationality by declaration.Footnote 188 A new law of November 2006 now shifts the control primarily to one prior to the celebration of the marriage.Footnote 189 Again, this law was adopted with the main objective of stopping sham marriages, but the procedures put in place should assist in preventing forced marriages.
Prior to the celebration of the marriage, a French national must first obtain a certificate of capacity to marry from the diplomatic authority in the relevant place of marriage.Footnote 190 This document attests that the same pre-marriage formalities as required in France have been carried out by the diplomatic authority in question. The banns are not only published with the diplomatic authority at the place of the celebration of the marriage, but also with the registrar or diplomatic authority where the future spouse(s) has/have their domicile or residence,Footnote 191 which should allow a greater opportunity to third parties to oppose the marriage. The couple are interviewed by the diplomatic authorityFootnote 192 and, where there are serious indications that the consent to marry has been obtained under pressure, the diplomatic authority must notify the procureur.Footnote 193 The procureur may then oppose the marriage and this opposition can only be lifted if the future spouses obtain a court ruling to this effect.Footnote 194
In France, to inform third parties, a foreign marriage certificate must be transcribed into the register.Footnote 195 If the marriage certificate is not so transcribed, the marriage will only produce legal effects between the spouses and their children.Footnote 196 When the marriage has been celebrated despite the opposition of the procureur, a consular registrar cannot transcribe the marriage until the spouses have obtained a court decision removing the opposition.Footnote 197 Where the marriage has been celebrated without requesting a certificate of capacity to marry, the transcription must be preceded by an interview with the spouses, together or separately, unless there is information establishing that the validity of the marriage is not in question.Footnote 198 Once again, where there are serious indications which lead the diplomatic authority to believe that the marriage would be annulled under French law, they must immediately refer the matter to the procureur and suspend the transcription, allowing the procureur to request annulment of the marriage before the French courts.Footnote 199 Transcription of the marriage onto the register does not bar a future action for annulment of the marriage.Footnote 200
The procureur in question is that of the Tribunal de grande instance (TGI) in Nantes where the central services of the register of births, deaths and marriages of the Ministry of Foreign Affairs are located.Footnote 201 It is before the TGI in Nantes that the request for annulment is made. Prior to a décret of 2005, all procureurs and all TGIs could be seized with this procedure,Footnote 202 but to avoid conflicting decisions the Ministry of Justice decided to centralize these procedures with the office of the procureur in Nantes.Footnote 203 It is hoped that this will be a pertinent tool for fighting forced marriages as it will contribute to increasing uniformity in the case law whenever a lack of intention to marry is suspected.Footnote 204 An exception exists, however, for Algeria where the number of consular personnel has been reduced for security reasons.Footnote 205 The transcription of a marriage certificate from Algeria is done through a written procedure, managed directly by a specialized cell of the registry service in Nantes.Footnote 206 French nationals must certify in writing that they consented. The verifications carried out by the registry services can be delayed and the wholly written procedure does not allow for the detection of a possible forced marriage.Footnote 207
In England the Government established a Joint Action Plan in 2000 to deal with persons being married against their will. This was followed, in 2005, by the Government launch of a joint Forced Marriage Unit between the Home Office and the Foreign and Commonwealth Office in order to deal with the increasing problems of this practice. The remit of this unit was to determine policy, set up projects and give practical advice to those at risk of being forced into marriage. In addition to providing a source of advice, the Forced Marriage Unit requires overseas consular staff to work with local police and the judiciary to help recover victims who have been taken abroad against their will.Footnote 208
The Joint Action Plan from the Home Office primarily committed the Home Office to tackling forced marriages abroad.Footnote 209 The Home Office dedicated itself to helping those women and men stranded abroad as victims of forced marriage. Stressing the distinction between arranged marriages and forced marriages, the Action Plan pledged itself to a thorough investigation of the nature and extent of the problem through the collation and examination of statistics. The Joint Action Plan further promised to assist the victims of forced marriage through its Consular staff overseas and by a thorough review of procedures to ensure that the protection and safeguards offered were of the highest order. This Home Office 10-point Action Plan also involved exploring the possibility of a 24-hour helpline in the UK and overseas for victims of forced marriage.Footnote 210 Consular officials were to attend key court hearings, clear guides were to be published to raise public awareness and victims were to be referred to Social Services in the UK so that they knew where to turn when they came back to the UK. The Home Office was to ensure that victims knew where to resort to for help by distribution of Foreign and Commonwealth Office (FCO) forced marriage leaflets and increasing accessibility to consular sections for victims. Access to legal remedies was to be improved by the production of a basic guide and by publishing the criminal law remedies. Programmes were to be set up for judicial cooperation and the links with NGOs such as REUNITE, which deals with child abduction, were to be encouraged. Police links have been encouraged by structured programmes between overseas forces and UK forces. Hopefully, once the Forced Marriage (Civil Protection) Act is put into operation (which it is due to be in August 2008) it will serve to assist the over-worked and strained resources of the Forced Marriage Unit.
It is suggested that, as in France, English law should require the delivery of a certificate of capacity to marry. It also suggested that marriage should be subject to the formality of the publication of banns, both at the place of the celebration of the marriage and the place of residence. Furthermore, the foreign marriage certificate should be transcribed on the marriage register which would presuppose the prior examination of the validity of the marriage.Footnote 211 The English reforms so far are much more generalized; it is suggested that additional measures should be taken to tackle the problem with greater specificity, as the French have done. However, great care and sensitivity in the handling of these issues is essential to ensure that the innocent do not feel victimized. Although the provision of legal measures to detect, prevent and annul forced marriages is necessary, these measures cannot function adequately unless the State officials, non-legal organizations and support services are fully involved, aware of and sensitive to the problems of forced marriages.
IV. Conclusion
There are widespread pleas for an increasingly multifaceted approach to deal with the issue of forced marriage.Footnote 212 The needs of victims of domestic and child abuse and those of forced marriage cut across the boundaries of many social service providers. The rise of individualism has led to a change in tradition, increased language differences and the growth of scepticism among the younger generation of those for whom the practice of arranged marriage is part of their cultural identity.Footnote 213 Conversely, it would seem that the continued practice of transcontinental marriage and the lack of recognition or differentiation between a forced and an arranged marriage have led in many cases to a denial by many of the older generation of the problem of the continued practice of forced marriage.Footnote 214 A sensitive multi-dimensional approach is needed which takes into account the power of the traditionally structured family.Footnote 215 The essential differentiating factor is the issue of choice, but, of course, that itself is affected by education, urbanization and parental influence. Parents of such children need to understand that they face considerable difficulties if they hope to bring up children in an English or French society and education system, but, at the same time, to retain every aspect of their own tradition and expectations.
The most promising solution is one in which young persons in such communities find a way to create a position of empowered self-identification which is recognized by their parents and the community.Footnote 216 The connection between honour and forced marriage gives opponents of forced marriage the choice as to whether to challenge the centrality of honour within the community by the possible criminalization of forced marriage or to attempt to transform the communal understanding of honour to include the personal autonomy of potential victims of the practice and their economic and social contribution to the life of the community.Footnote 217
The blunt instrument of criminalization alone is not, in our view, the way to encourage such change in perceptions of what characterizes the consent required for arranged marriage and what constitutes an unconscionable invasion of rights.Footnote 218 It would appear that, in this respect, despite the marked differences in the way in which the two legal systems function, both have recognized that it is possible by civil remedies to protect victims. Civil law remedies, on the one hand, are able to protect and empower victims of forced marriage, and importantly, unlike criminal sanctions, allow them to initiate and cease proceedings. On the other hand, such remedies also give the judges handling these cases wide powers to decide upon the appropriate solution. In line with French practice, such officials will need to exercise sensitivity to the cultural and religious context of the case. There is always the danger that concern to protect vulnerable children and adults may lead to inappropriate interference with families merely because they cling to cultural practices which are different from those who view life from a purely Euro-centric perspective.Footnote 219
The comparison between the approach of France, a codified legal system, and England, a common law system, indicates many differences in the procedure adopted by each legal system to curb the practice of forced marriage. France has endeavoured, albeit in a somewhat piecemeal fashion, to use legislation to root out the practice by investing registrars, procureurs and diplomatic officials with greater control over marriages. In England, it is the courts which have, in many cases, come to the rescue of such parties, either through the use of wardship, in the case of minors, or the use of their inherent jurisdiction, in the case of adults. After a marriage has taken place, the courts may intervene by subsequently nullifying the marriage on the grounds of duress.Footnote 220 The effect of the Forced Marriage (Civil Protection) Act will be to greatly widen access in such cases by giving jurisdiction to the county courts Footnote 221 and by allowing relevant third parties,Footnote 222 even without leave, to apply for a Forced Marriage Protection Order on behalf of a victim in certain circumstances.Footnote 223 We would suggest that in both France and England civil practice and procedure is a possible tool to shape the ideology of the community without the risk of antagonizing or polarizing such communities and time will tell as to whether the criminal route favoured by Belgium, Germany and Norway will be more successful than the civil law approach of France and England.
