Forced Marriage (Civil Protection) Bill [HL]

I oppose the Question whether Clause 1 shall stand part of the Bill. In doing so, I will speak to government Amendment No. 1, which contains 19 new sections to be inserted into the Family Law Act 1996, and to government Amendment No. 14, which amends the Long Title of the Bill. Many noble Lords will be familiar with the history of this policy. In September 2005, the Government launched a consultation on whether a specific criminal offence of forcing someone into marriage should be created. Many respondents worried that criminalising forced marriage would force the issue under ground, leaving victims even more isolated and vulnerable. Others commented that reconciliation with family members would be prevented if criminal action were taken, and that victims would be less likely to seek help if there were a risk that their family might be criminalised. The noble Lord, Lord Lester, deserves great praise for the approach taken in his Bill, which empowers victims to seek protection through civil remedies. Since the Bill’s Second Reading, the Government have worked closely with the noble Lord to fine-tune its provisions to make them more effective, and our amendments today largely follow that approach. The Bill’s aim remains to protect victims by preventing and deterring forced marriage, and to provide protection for those who have already been forced into marriage. It is hoped that by looking to the civil, rather than the criminal, courts for a solution to this problem, we can minimise, if not entirely eliminate, the risk that, by coming forward to seek protection, the victim finds that they have driven a wedge between themselves and their family. Similarly, we hope that more victims will feel able to come forward and seek protection, knowing that the courts have the means to help them without criminalising members of their family. The Bill puts the civil remedies available to a potential victim of forced marriage on a statutory footing and extends the jurisdiction to county court level, which provides for a more effective enforcement mechanism through the power of arrest. The Bill provides a clearer and more accessible remedy to those who need it. The provisions do not create a new statutory claim for damages. In the case of forced marriage, a claim for damages may be particularly unsuitable, as it prolongs adversarial contact between the victim and the respondent, who in many cases will be a close family member. The Bill’s focus is on protecting victims in a way that enables and assists them to preserve family links wherever possible. I highlight the fact that the Bill in no way affects an individual making other claims for compensation to which they might be entitled; for example, for assault, injury or wrongful imprisonment. The main amendment takes the form of a newPart 4A to the Family Law Act 1996. As such, it goes one step further than the original Bill by embedding these new provisions even more firmly in the family jurisdiction. I hope that this will send out an important signal about how the Bill should be approached. Amending the Family Law Act in this way places forced marriage more robustly in the wider context of violence against women. Many of the problems facing those confronted by forced marriage are similar to those facing victims of domestic violence. Both the Government and the voluntary organisations with which I have been privileged to discuss this want forced marriage to be put into mainstream domestic violence legislation and not dealt with as an entirely separate issue. As a result, forced marriage will enjoy a central role in the Government’s national anti-domestic violence delivery plan. There is also a clear practical advantage to this approach in that it has links to other statutes. In dealing with cases of forced marriage involving children, the courts may also make use of powers under the Children Act 1989. For example, if the court is concerned about the welfare of the child, it can make an interim care or interim supervision order and instruct the local authority to investigate the situation. Where domestic violence is involved, the courts will also have in mind the relevant provisions of the Family Law Act 1996 to provide adequate protection for the victim. Although the Bill does not change the law of nullity, it will enable victims to annul their marriages with the benefit of an order providing for their protection. As we have drafted our amendments, I have had the opportunity to consult with senior figures in the judiciary who are experienced in hearing these cases. I am pleased to say that they have expressed their support for this approach. I would also like to reiterate the important point made by many speakers at Second Reading that forced marriage does not affect just one part of our society, but women and men from all races and religions. The practice and threat of forced marriage engages human rights; most notably the Article 8 convention right to respect private life and personal autonomy. Article 8 includes the right to form relationships and to live as a family. The state is under a positive obligation to see that steps are taken to ensure the enjoyment of these rights is real and substantial. Noble Lords will know that I have the privilege of being the Minister responsible for human rights within government. Forced marriage also engages Article 12, the right to marry, as marriage requires free consent. Marriage against someone’s will is a violation of that right. It is clear that this Bill represents a positive for the protection of human rights. The problem of forced marriage is undoubtedly complex, but I hope that we have struck the right balance with the approach we have taken with the Bill. Our aim is to provide the courts with powers that will enable them to deal effectively with these cases and to offer protection to those faced with the prospect of a forced marriage, without driving the practice further under ground and making the situation worse for those we aim to protect. I accept that there are always risks in any approach one might take, but I believe that the greater evil would be not to take steps to tackle this problem. I have had meetings with several organisations in the voluntary sector. They have years of experience of dealing with this problem. Their support for what we are trying to do has strengthened this view. I put on record my thanks to the Southall Black Sisters, Imkaan and Newham Asian Women’s Project and the many other voluntary organisations which do such excellent work in this area for their contribution in shaping and improving these amendments, and, of course, the Forced Marriage Unit in the Foreign and Commonwealth Office which does such excellent and sterling work. I will now turn to the detail within the proposed new clause. Proposed new Section 63A enables the court to make an order to prevent a person from being forced into marriage or to make orders to protect a victim who has already been forced into marriage. It is very important to remember that not only must we work to prevent forced marriages occurring but that we must offer some means by which those who have already been forced into marriage can extricate themselves from their plight. The provisions require that the court should have regard to the need to secure the health, safety and well-being of the potential victim, and must have regard to the victim’s wishes and feelings. That enables the victim to have a voice and to let the court know what they believe will be best for them. Many victims want to ask for help but are afraid of the consequences for their family. They rarely want them to get into trouble with the law. A key advantage of the civil legislation of the noble Lord, Lord Lester, is that victims need not be put off from using it by fears over reporting their close relatives for committing criminal offences. The legislation makes clear that a person is forced into marriage if they are forced by another person to enter into that marriage without having given their free and full consent. These provisions give the court wide discretion to consider any case where a person is in danger of being forced into marriage or who has already been forced into marriage, ensuring that we do not leave any potential victims out of scope. The force used can be verbal, physical or mental. We are not dealing necessarily with cases where victims are physically beaten; often the force is much more subtle. There may be threats of violence, actual violence or mental pressure. The force may not even be directed against the victim; it can be indirect, against a third party or on the perpetrator themselves. For example, there have been cases where pressure is put by a mother on her daughter by threatening physical harm to herself. She may say, ““I will kill myself if you don’t go ahead with this marriage””. All these actions are harmful and would fall within the scope of this clause, so the court would have the power to offer protection to the victim. New Section 63B provides that a protection order can contain any terms the court considers appropriate, including prohibitions, restrictions or specific requirements. Again, these provisions give the court wide discretion to select and tailor an order to suit the needs of the case, bearing in mind the wishes of the victim. The kind of orders that may be made are those prohibiting violence or requiring a personto surrender a passport for as long as appropriate to protect the victim. The provisions can relate to conduct outside of England and Wales, which will be crucial as many cases involve an overseas element. The order can also apply to those who have assisted or encouraged a person to force another into marriage. Noble Lords will be aware that often whole families may be complicit in forcing a person into marriage. New Section 63C details who may apply to the court for a forced marriage protection order. It provides for both the victim and a relevant party to apply without leave. A relevant third party is a person or class of persons that the Lord Chancellor may specify. For example, the Forced Marriage Unit, to which I have already paid tribute, could one day be a relevant third party. Any other person wishing to apply would need to seek leave of the court, and the court would consider what connection the victim had with them and the ascertainable wishes of the victim. I have already made it clear that it is essential that the court considers the wishes and feelings of the victim. Under our proposals, the court will therefore be required always to take these into account where they are ascertainable. One of the harmful results of forced marriage is that it takes away the victim’s power to control their own life, and it is vital that we do not disempower them further, but engage them in the process wherever possible. Importantly, the courtscan also make an order without there being an application. This may arise if the courts are already considering another family proceedings matter related to the case. New Sections 63D to 63L are modelled on Part 4 of the Family Law Act 1996 and provide the mechanics of this clause. As the framework behind these provisions is already established within the domestic violence provision of the 1996 Act, I do not intend to go through each one of them at length, but I hope that noble Lords will allow me to say a few words about them. New Section 63D concerns ex parte orders, so that in emergencies orders may be made without the respondent being notified of the proceedings. In deciding whether this is appropriate, the court will consider the risk of significant harm to the victim or a third party if the order is not made immediately. If the order is made, the respondent will still be given the opportunity to make representations on an order as soon as is just and convenient. This ensures that there is a balance between protecting someone in need of immediate help and providing access to justice for the respondent concerned. New Section 63E provides that the court may accept an undertaking from the respondent as an alternative to making a protection order. A court would not accept an undertaking if the respondent had previously used or threatened violence in relation to the matter concerned. In these cases, it is clear that an undertaking would not go far enough. However,it is important to note that an undertaking is enforceable, as a breach would be a contempt of court and punishable by committal proceedings. New Section 63F provides that an order may be made for a set period or may run until another order is made. Again, this gives the court flexibility in dealing with each case. New Section 63G provides that orders and undertakings can be varied or be discharged on application by the victim or any party affected by the proceedings. The court may also vary or discharge an order without application. New Section 63H deals with powers of arrest and provides that the court must attach a power of arrest if it intends to make a forced marriage protection order and considers that the respondent has used or threatened violence against the victim, a third party or the respondent themselves. The provision to attach a power of arrest if threats or violence are directed to a third party is a departure from Part 4 of the Family Law Act 1996 where powers of arrest are available only if the violence is addressed to the applicant or a relevant child. However, I consider this to be vital in dealing with those cases which can so often involve indirect threats. The ability of the court to attach a power of arrest to injunctions will provide an important further protection for victims in these circumstances and act as a strong deterrent against further actions by those covered by the order. New Section 63I provides that a police officer may arrest a person without a warrant if they have reasonable cause to suspect that the person has breached an order. Again, this goes beyond Part 4 of the 1996 Act as it would allow the power of arrest to be used to arrest a third party who is in breach of the terms of the order, not only the respondent of the original proceedings. This is a necessary departure as cases can involve whole families or communities working together to force a marriage. New Section 63J provides that where an order had no power of arrest attached, the victim or person who applied for the order may apply for the issue of a warrant of arrest if he considers that the person has failed to comply with the order or is in contempt of court. The court must issue the warrant only where it has reasonable grounds for believing that a person has failed to comply with the order or is in contempt of court. For the same reasons as I have previously explained, this goes beyond Part 4 of the Family Law Act 1996 as it would allow a warrant to be issued against someone who was not a respondent to the original proceedings. New Section 63K provides that an arrested person may be remanded if the matter is not dealt with when first brought before the court. Conditions may also be imposed on bail such as those necessary to ensure witnesses are not interfered with. New Section 63L provides for remands for the purpose of enabling a medical examination and report if there is a reason to consider a medical report is required. New Sections 63M and 63N are not modelled under the Family Law Act 1996. Section 63M reserves forced marriage protection orders to be heard in the High Court and county court. New Section 63N provides that the Lord Chancellor, after consultation with the Lord Chief Justice, may extend jurisdiction to magistrates’ courts by affirmative order. This provision is in preparation for a single family court. However, there are no immediate plans to extend to magistrates’ courts. It is instead intended that expertise be built up in specialist county courts and High Courts. Proposed new Sections 63O and 63P are again modelled on Part 4 of the Family Law Act 1996. Members of the Committee may be aware that where a person is found to be in contempt of court, he or she may be committed to prison for up to two years under the Contempt of Court Act 1981. New Section 63O provides that the court’s powers in relation to contempt may be exercised by the same level of judge who made the original forced marriage protection order. The intention is that the same level of court will deal with a breach as dealt with the original order. New Section 63P enables the Lord Chancellor, in consultation with the Lord Chief Justice, to make provisions for appeals concerning the transfer of proceedings and orders in respect of the management of the case. New Section 63Q makes provision for the Secretary of State to issue guidance to public bodies on how to deal with cases of forced marriage. At Second Reading, there was much debate about the need to work with the many organisations in the voluntary sector to ensure that this Bill makes a real difference to those threatened with forced marriage. Ensuring that all agencies are working together is crucial and guidelines, such as the one currently issued by the Forced Marriage Unit, for social workers, teachers, police officers and doctors are a key part in ensuring this. There was also discussion at Second Reading about putting this guidance on a statutory footing. This provision will give a statutory home to guidance on dealing with forced marriage cases. It requires that public authorities should have due regard to any guidance produced under it which would ensure that they are followed. New Section 63R signposts the protection which may be available from the High Court, criminal law, Protection from Harassment Act 1997, Family Law Act 1996, a civil claim for damages and a claim inthe Children Act 1989. New Section 63S defines important terms used in the Bill. One significant definition is that given to marriage, which makes clear that when we refer to ““forced marriage””, we are referring to both religious and civil ceremonies whether or not they are legally recognised. Some religious ceremonies may not have legal recognition in the United Kingdom, but a person will still be treated by family and the wider community as though they were married, so the effect is just as damaging. It is vital therefore that we provide for this. Finally, government Amendment No. 14 amends the Title to make it clear that the aim of the Bill is not just to provide protection against people being forced into marriage, but also to protect those who have already been forced into marriage. I beg to move.