Forced Marriage (Civil Protection) Bill [HL]

moved Amendment No. 1: 1: After Clause 1, insert the following new Clause— ““Protection against forced marriage: England and Wales After Part 4 of the Family Law Act 1996 (c. 27) insert— ““PART 4A Forced marriage Forced marriage protection orders 63A Forced marriage protection orders (1) The court may make an order for the purposes of protecting— (a) a person from being forced into a marriage or from any attempt to be forced into a marriage; or (b) a person who has been forced into a marriage. (2) In deciding whether to exercise its powers under this section and, if so, in what manner, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected. (3) In deciding that person’s well-being, the court 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 the light of the person’s age and understanding. (4) For the purposes of this Part a person (““A””) is forced into a marriage if another person (““B””) forces A to enter into a marriage (whether with B or another person) without A’s free and full consent. (5) For the purposes of subsection (4) it does not matter whether the conduct of B which forces A to enter into a marriage is directed against A, B or another person. (6) In this Part— ““force”” includes coerce by threats or other psychological means (and related expressions are to be read accordingly); and ““forced marriage protection order”” means an order under this section. 63B Contents of orders (1) A forced marriage protection order may contain— (a) such prohibitions, restrictions or requirements; and (b) such other terms; as the court considers appropriate for the purposes of the order. (2) The terms of such orders may, in particular, relate to— (a) conduct outside England and Wales as well as (or instead of) conduct within England and Wales; (b) respondents who— (i) aid, abet, counsel, procure, encourage or assist another person to force, or attempt to force, a person to enter into a marriage; or (ii) conspire to force, or to attempt to force, a person to enter into a marriage; as well as (or instead of) respondents who force, or attempt to force, the person to enter into the marriage. 63C Applications and other occasions for making orders (1) The court may make a forced marriage protection order— (a) on an application being made to it; or (b) without an application being made to it but in the circumstances mentioned in subsection (6). (2) An application may be made by— (a) the person who is to be protected by the order; or (b) a relevant third party. (3) An application may be made by any other person with the leave of the court. (4) In deciding whether to grant leave, the court must have regard to all the circumstances including— (a) the applicant’s connection with the person to be protected; (b) the applicant’s knowledge of the circumstances of the person to be protected; and (c) the wishes and feelings of the person to be protected so far as they are reasonably ascertainable and so far as the court considers it appropriate, in the light of the person’s age and understanding, to have regard to them. (5) An application under this section may be made in other family proceedings or without any other family proceedings being instituted. (6) The circumstances in which the court may make an order without an application being made are where— (a) any other family proceedings are before the court (““the current proceedings””); (b) the court considers that a forced marriage protection order should be made to protect a person (whether or not a party to the current proceedings); and (c) a person who would be a respondent to any such proceedings for a forced marriage protection order is a party to the current proceedings. (7) In this section— ““family proceedings”” has the same meaning as in Part 4 (see section 63(1) and (2)) but also includes— (a) proceedings under the inherent jurisdiction of the High Court in relation to adults; (b) proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 (c. 41) which includes an exclusion requirement (as defined in section 44A(3) of that Act); and (c) proceedings in which the court has made an order under section 50 of the Act of 1989 (recovery of abducted children etc.); and ““relevant third party”” means a person specified, or falling within a description of persons specified, by order of the Lord Chancellor. (8) An order of the Lord Chancellor under subsection (7) may, in particular, specify the Secretary of State. Further provision about orders 63D Ex parte orders: Part 4A (1) The court may, in any case where it considers that it is just and convenient to do so, make a forced marriage protection order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court. (2) In deciding whether to exercise its powers under subsection (1), the court must have regard to all the circumstances including— (a) any risk of significant harm to the person to be protected or another person if the order is not made immediately; (b) whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately; and (c) whether there is reason to believe that— (i) the respondent is aware of the proceedings but is deliberately evading service; and (ii) the delay involved in effecting substituted service will cause serious prejudice to the person to be protected or (if a different person) an applicant. (3) The court must give the respondent an opportunity to make representations about any order made by virtue of subsection (1). (4) The opportunity must be— (a) as soon as just and convenient; and (b) at a hearing of which notice has been given to all the parties in accordance with rules of court. 63E Undertakings instead of orders (1) The court may, subject to subsection (3), accept an undertaking from the respondent to proceedings for a forced marriage protection order if it has power to make such an order. (2) No power of arrest may be attached to an undertaking given under subsection (1). (3) The court may not accept an undertaking under subsection (1) instead of making an order if a power of arrest would otherwise have been attached to the order. (4) An undertaking given to the court under subsection (1) is enforceable as if the court had made the order in terms corresponding to those of the undertaking. (5) This section is without prejudice to the powers of the court apart from this section. 63F Duration of orders A forced marriage protection order may be made for a specified period or until varied or discharged. 63G Variation of orders and their discharge (1) The court may vary or discharge a forced marriage protection order on an application by— (a) any party to the proceedings for the order; (b) the person being protected by the order (if not a party to the proceedings for the order); or (c) any person affected by the order. (2) In addition, the court may vary or discharge a forced marriage protection order made by virtue of section 63C(1)(b) even though no application under subsection (1) above has been made to the court. (3) Section 63D applies to a variation of a forced marriage protection order as it applies to the making of such an order. (4) Section 63E applies to proceedings for a variation of a forced marriage protection order as it applies to proceedings for the making of such an order. (5) Accordingly, references in sections 63D and 63E to making a forced marriage protection order are to be read for the purposes of subsections (3) and (4) above as references to varying such an order. (6) Subsection (7) applies if a power of arrest has been attached to provisions of a forced marriage protection order by virtue of section 63H. (7) The court may vary or discharge the order under this section so far as it confers a power of arrest (whether or not there is a variation or discharge of any other provision of the order). Arrest for breach of orders 63H Attachment of powers of arrest to orders (1) Subsection (2) applies if the court— (a) intends to make a forced marriage protection order otherwise than by virtue of section 63D; and (b) considers that the respondent has used or threatened violence against the person being protected or otherwise in connection with the matters being dealt with by the order. (2) The court must attach a power of arrest to one or more provisions of the order unless it considers that, in all the circumstances of the case, there will be adequate protection without such a power. (3) Subsection (4) applies if the court— (a) intends to make a forced marriage protection order by virtue of section 63D; and (b) considers that the respondent has used or threatened violence against the person being protected or otherwise in connection with the matters being dealt with by the order. (4) The court may attach a power of arrest to one or more provisions of the order if it considers that there is a risk of significant harm to a person, attributable to conduct of the respondent, if the power of arrest is not attached to the provisions immediately. (5) The court may provide for a power of arrest attached to any provisions of an order under subsection (4) to have effect for a shorter period than the other provisions of the order. (6) Any period specified for the purposes of subsection (5) may be extended by the court (on one or more occasions) on an application to vary or discharge the order. 63I Arrest under attached powers (1) Subsection (2) applies if a power of arrest is attachedto provisions of a forced marriage protection order undersection 63H. (2) A constable may arrest without warrant a person whom the constable has reasonable cause for suspecting to be in breach of any such provision or otherwise in contempt of court in relation to the order. (3) A person arrested under subsection (2) must be brought before the relevant judge within the period of 24 hours beginning at the time of the person’s arrest. (4) In calculating any period of 24 hours for the purposes of subsection (3), Christmas Day, Good Friday and any Sunday are to be ignored. 63J Arrest under warrant (1) Subsection (2) applies if the court has made a forced marriage protection order but— (a) no power of arrest is attached to any provision of the order under section 63H; (b) such a power is attached only to certain provisions of the order; or (c) such a power was attached for a shorter period than other provisions of the order and that period has expired. (2) An interested party may apply to the relevant judge for the issue of a warrant for the arrest of a person if the interested party considers that the person has failed to comply with the order or is otherwise in contempt of court in relation to the order. (3) The relevant judge must not issue a warrant on an application under subsection (2) unless— (a) the application is substantiated on oath; and (b) the relevant judge has reasonable grounds for believing that the person to be arrested has failed to comply with the order or is otherwise in contempt of court in relation to the order. (4) In this section ““interested party””, in relation to a forced marriage protection order, means— (a) the person being protected by the order; or (b) (if a different person) the person who applied for the order. 63K Remand: general (1) The court before which an arrested person is brought under section 63I(3) or by virtue of a warrant issued under section 63J may, if the matter is not then disposed of immediately, remand the person concerned. (2) Schedule 5 has effect in relation to the powers of the court to remand a person by virtue of this section but as if the following modifications were made to the Schedule. (3) The modifications are that— (a) in paragraph 2(1) of Schedule 5, the reference to section 47 is to be read as a reference to this section; and (b) in paragraph 2(5)(b) of the Schedule, the referenceto section 48(1) is to be read as a reference tosection 63L(1). (4) Subsection (5) applies if a person remanded under this section is granted bail under Schedule 5 as modified above. (5) The person may be required by the relevant judge to comply, before release on bail or later, with such requirements as appear to the relevant judge to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice. 63L Remand: medical examination and report (1) Any power to remand a person under section 63K(1) may be exercised for the purpose of enabling a medical examination and report to be made if the relevant judge has reason to consider that a medical report will be required. (2) If such a power is so exercised, the adjournment must not be for more than 4 weeks at a time unless the relevant judge remands the accused in custody. (3) If the relevant judge remands the accused in custody, the adjournment must not be for more than 3 weeks at a time. (4) Subsection (5) applies if there is reason to suspect that a person who has been arrested— (a) under section 63I(2); or (b) under a warrant issued on an application made under section 63J(2); is suffering from mental illness or severe mental impairment. (5) The relevant judge has the same power to make an order under section 35 of the Mental Health Act 1983 (c. 20) (remand for report on accused’s mental condition) as the Crown Court has under section 35 of that Act in the case of an accused person within the meaning of that section. Jurisdiction and procedure 63M Jurisdiction of courts: Part 4A (1) For the purposes of this Part ““the court”” means the High Court or a county court. (2) Subsection (1) is subject to any provision made by virtue of subsections (3) and (4). (3) Section 57(3) to (12) (allocation of proceedings to courts etc.) apply for the purposes of this Part as they apply for the purposes of Part 4 but as if the following modification were made. (4) The modification is that section 57(8) is to be read as if there were substituted for it— ““(8) For the purposes of subsections (3), (4) and (5), there are two levels of court— (a) the High Court; and (b) any county court.”” 63N Power to extend jurisdiction to magistrates’ courts (1) The Lord Chancellor may, after consulting the Lord Chief Justice, by order provide for magistrates’ courts to be included among the courts who may hear proceedings under this Part. (2) An order under subsection (1) may, in particular, make any provision in relation to magistrates’ courts which corresponds to provision made in relation to such courts by or under Part 4. (3) Any power to make an order under this section (including that power as extended by section 65(2)) may, in particular,be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under this Part or any other enactment. (4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) to exercise the Lord Chief Justice’s functions under this section. 63O Contempt proceedings: Part 4A The powers of the court in relation to contempt of court arising out of a person’s failure to comply with a forced marriage protection order or otherwise in connection with such an order may be exercised by the relevant judge. 63P Appeals: Part 4A (1) The Lord Chancellor may, after consulting the Lord Chief Justice, by order make provision as to the circumstances in which appeals may be made against decisions taken by courts on questions arising in connection with the transfer, or proposed transfer, of proceedings by virtue of an order made undersection 57(5) as applied by section 63M(3) and (4). (2) Except so far as provided for in any order made under subsection (1), no appeal may be made against any decision of a kind mentioned in that subsection. (3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) to exercise the Lord Chief Justice’s functions under this section. Supplementary 63Q Guidance (1) The Secretary of State may from time to time prepare and publish guidance to such descriptions of persons as the Secretary of State considers appropriate about— (a) the effect of this Part or any provision of this Part; or (b) other matters relating to forced marriages. (2) A person exercising public functions to whom guidance is given under this section must have regard to it in the exercise of those functions. 63R Other protection or assistance against forced marriage (1) This Part does not affect any other protection or assistance available to a person who— (a) is being, or may be, forced into a marriage or subjected to an attempt to be forced into a marriage; or (b) has been forced into a marriage. (2) In particular, it does not affect— (a) the inherent jurisdiction of the High Court; (b) any criminal liability; (c) any civil remedies under the Protection from Harassment Act 1997 (c. 40); (d) any right to an occupation order or a non-molestation order under Part 4 of this Act; (e) any protection or assistance under the Children Act 1989 (c. 41); (f) any claim in tort; or (g) the law of marriage. 63S Interpretation of Part 4A In this Part— ““the court”” is to be read with section 63M; ““force”” (and related expressions), in relation to a marriage, are to be read in accordance with section 63A(4) to (6); ““forced marriage protection order”” has the meaning given by section 63A(6); ““marriage”” means any religious or civil ceremony of marriage (whether or not legally binding); and ““the relevant judge””, in relation to any order under this Part, means— (a) where the order was made by the High Court, a judge of that court; and (b) where the order was made by a county court, a judge or district judge of that or any other county court.””.””