Forced Marriage (Civil Protection) Bill [HL]

moved, as an amendment to Amendment No. 1, Amendment No. 2: 2: After Clause 1, leave out lines 16 to 19 The noble Baroness said: I need not repeat my introduction to the series of amendments I will move today. The majority are merely probing and I look forward to the Minister’s response to the questions I will raise. Amendment No. 2 probes the meaning of ““wishes and feelings”” in proposed new Section 63A, which has provoked a number of questions. The phrase ““wishes and feelings”” strikes me as somewhat infelicitous language—I am happy to be corrected—as it seems to be setting up an objective test of the value of a person’s wishes and feelings. Subsection (3) states that when deciding a person’s well-being for the purposes of deciding whether to make a forced marriage protection order, "““the court must, in particular, have such regard to the person’s wishes and feelings … as the court considers appropriate””." At what level does the consideration of a person’s wishes and feelings cease to be appropriate? Does the Minister believe that consideration of wishes and feelings implies the need for an objective judgment on the value of those wishes and feelings? I have a few more questions with regard to the implementation and effects of orders made under new Section 63A. Does the Minister envisage that when an order is made under that section, it will encourage, or be of especial assistance to, individuals who makean application for nullity? If a forced marriage protection order is made, will that suffice as evidence under Section 12C of the matrimonial proceedings Act 1973 that a marriage shall be avoidable on the ground that either party of the marriage did not validly consent to it? I am grateful for the advice of Alicia Collinson of 2 Harcourt Chambers on many aspects of these amendments, in particular the effect of the Bill on the concept of duress. The Bill appears to replace the concept of duress with prohibition against forced marriage. I am concerned about that for two reasons. First, recent interpretation of duress in the courts has been wide enough to meet the purposes of the Bill; and, secondly, it could result in certain legal precedents of duress not being applicable to future forced marriage cases. I hope that the Minister can reassure me on these points. The regulatory impact assessment estimates that under the Bill there will be five to 50 applicants a year. Has the Minister considered that the number could be larger, given that many divorce cases among the targeted communities arise out of forced marriages—or, to put in another way, that there are more forced marriages than the Government have estimated? Has she considered that in future many more victims of forced marriage will seek to use this legislation than is estimated by the Forced Marriage Unit? Has the Minister also considered the implications of the extra cost in this regard? I am grateful for advice on the Government’s amendments from Usha Sood, a family barrister in Nottingham for 40 years who has specialised in cases of forced marriage. She notes that the number of petitioners could be far greater than the Government’s estimate, given that many cases are dealt with in the quickest way possible and often out of court within the community or in the divorce courts as opposed to applications for nullity. Her main concern, which I share entirely, is that there is no explicit definition of forced marriage in the Bill. It is her opinion that a failure to provide any definition of forced marriage—even an open-ended definition that could be subject to the interpretation of the courts—will send to communities precisely the wrong message: that legislation is being introduced that could threaten arranged marriages. I hope that the Minister will be able to take this suggestion away and consider an amendment to make it clear that the legislation in no way seeks to trespass on the acceptable cultural practice of arranged marriages. I refer the Minister to the judgment of Justice Singer in Re SK, as quoted in paragraph 15 of Justice Munby’s judgment in NS v MI, where he states: "““There is a spectrum of forced marriage from physical force or fear of injury or death … through to the undue imposition of emotional pressure … and that a great area then separates unacceptable forced marriage from marriages arranged traditionally which are in no way to be condemned””." In order for it to be effective, it is vital that this legislation is respected by and integrated into communities. Indeed, I am surprised that it is not being conducted in tandem with the Departmentof Communities and Local Government. The integration of new laws can be achieved to a certain extent through concerted effort within communities, but it is vitally important in the first place that legislation is unequivocal in its purpose. I wonder whether the Minister has considered how this legislation may be presented to communities in the context of existing cultural laws. Usha Sood recalled a case presided over by the noble and learned Baroness, Lady Butler-Sloss, where two girls, after having annulled their forced marriages, were able to apply for a religious nullity or faksh from the Sharia Council that bolstered their dignity in the eyes of their own community. I believe that the message that needs to be conveyed to communities is that this Bill will not threaten arranged marriage and that, in the words of Justice Singer, "““arranged may become forced but forced is always different from arranged””." I beg to move, as an amendment to Amendment No. 1, Amendment No. 2.