My Lords, first, I reassure my noble friend that her curiosity is always welcome on these Benches. That is well acknowledged by my noble friend Lord McNally.
Turning to her specific amendments, as she rightly said, we are moving on to the subject of forced marriages. This is an important subject to address. It is unfortunate that we have to address it but it is a reality that exists. As my noble friend said, we will move on to other elements of this. I say from the outset that the Government take this particular issue very seriously. It tragically impacts on people in this country and it needs to be tackled and dealt with. I hope that through our discussions this afternoon we will be able to throw further light on what is a very important matter.
The new offence of the breach of a forced marriage protection order mirrors closely the existing offence of the breach of a non-molestation order in Part 4 of the Family Law Act 1996. This approach of closely following the non-molestation order precedent is the proposal on which the Government consulted in 2012, as noble Lords will know, and with which a large majority of respondents—71%—agreed.
Consistent with the existing offence, new Section 63CA of the Family Law Act provides that, first, a person can be guilty of an offence under Section 63CA only in respect of conduct engaged in at a time when the person was aware of the existence of the order and, secondly, where a person is convicted of a breach of a forced marriage protection order, they cannot be punished subsequently for contempt in relation to subsections (3) and (4).
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Specifically on the questions raised, the effect of Amendments 3 and 4 would be to remove subsections (2), (3) and (4), and it may assist the Committee if I explain the provisions in more detail.
Making the breach of a forced marriage protection order a criminal offence, for which arrest without warrant is possible, will mean that the police are always able to arrest a person who breaches an order without the need for the court to attach a power of arrest, or for the victim to apply to the civil court for an arrest warrant. Subsection (1) provides some protection for the person who will be arrested in recognition of the fact that orders may be obtained without notice, just as with non-molestation orders. The protection is afforded by making it clear that they will be guilty of the criminal offence only if they were aware of the existence of the order.
That does not mean that the order has to have been served on the person, or that they need to know the exact contents of the order, provided that they are aware that an order has been made prohibiting certain acts or behaviour. Therefore, a respondent who is aware of the existence of an order but who has not been served with the order, or who does not know precisely what it prohibits, could be liable for breaching the order. The provision is not a licence to evade service and wilfully maintain ignorance with a view to a defence. However, subsection (1) provides that a person can be found guilty of breaching the order only if the breach is “without reasonable excuse”. That provides a safeguard for a person who has been accused of a breach and who has, for example, genuinely not been served with an order or who has been unable to establish its contents.
Ultimately it will be for the court to determine, on the facts of each case, whether the accused person had a reasonable excuse for the breach and whether they should have been aware of the order. The court will then determine whether in the light of that knowledge the person was indeed in breach of the order. On the issue of burden of proof that my noble friend raised, the court will need to be satisfied, to the criminal standard, that the elements of the offence have been made out. This includes that the accused is aware of the forced marriage protection order.
On the second amendment, in making a breach of a forced marriage protection order a criminal offence, Clause 107 none the less preserves the option for breach of an order to be dealt with as a civil contempt of court. In the light of this, subsections (3) and (4) are intended to prevent someone being punished twice for the same breach. This means that a person being protected by a forced marriage protection order will be able to choose whether the criminal or civil law is used to deal with a breach of the order, just as Section 42A of the 1996 Act allows a person protected by a non-molestation order to do. They can either report the breach to the police to have it dealt with as a criminal matter or make an application to the originating county court to have the breach dealt with as a civil contempt of court. If the victim decides to pursue the criminal route for breach of an order, the decision on whether to prosecute will rest with the Crown Prosecution Service. If the victim decides to pursue the civil route, the Crown Prosecution Service will not be involved.
It is important to retain both options in case some victims are deterred from reporting a breach of an order because they are reluctant to pursue criminal proceedings against the perpetrator, who may be a close relative. However, it would not be right for the person who breached the order to face criminal and civil sanctions for the same actions. Victims need reassurance that if they seek civil redress and sanctions are imposed under that route there is no risk of a criminal prosecution being brought as well.
We will ensure that victims are made aware of what the new law will mean for them in practical terms. We will continue to deliver an engagement programme focused on prevention and education through a series of regional road shows and debates. This will complement our ongoing work with front-line practitioners and our partners to deliver additional awareness training that will enable them to help victims to utilise the civil remedies and criminal sanctions more effectively. This approach will ultimately strengthen the message within all communities that forced marriage is unacceptable and will not be tolerated in the UK.
I assure my noble friend that the issue of information and education, as I am sure all noble Lords will agree, is extremely important in how we communicate with, and raise awareness among, those who fall victim to this heinous crime so that they know what routes are accessible to them. The Government will be working with all partners on the ground to ensure that this is appropriately facilitated. I hope that, in the light of my explanation, my noble friend will agree to withdraw her amendment.