Forced Marriage: A Violation of Human Rights (Part – 10)
By Munazza Abbasi M.A LL.B (Hons)
The practical effects of the Forced Marriage Act
As discussed in the previous issue, mediation has proved to be an erroneous solution to the issue of forced marriage. The Forced Marriage Act therefore, whilst taking this into account, resolves this issue by offering that proceedings for protection against a forced marriage are to be brought through family courts instead of mediation. Orders can be made on an ex parte basis, where legal proceedings can be brought by one person in the absence of, and without representation or notification of the other parties. The FMA brought about new changes, and is considered to be “a major step in the right direction.” For the first time, powers of arrest are attached to incidents where there has been violence used against a victim. Such powers could previously only be attached by the High Court. Such a tool, therefore, has proved to be “a valuable and essential weapon in the fight against forced marriage” (Per Judge Munby J).
Emphasis is to be positioned on the fact that a third party, which could be anyone, can apply for the protection order on behalf of the victim, against anyone who may have a role in the forced marriage that has, or is about to take place. The geographical scope is not limited to the jurisdiction of England and Wales as conducts occurring abroad in connection with the forced marriage can be given an injunction. This potential international scope of the orders raises significant issues of international enforcement. Furthermore, legal aid is offered to victims abroad. However, the court will not delay a case if forms are not returned on time.
The FMA 2007 is an important social reforming statute…protecting the right to marry. However, as Lord Dholakia suggests that “Its effectiveness however, can only be judged in practice”. For example, the act against female genital mutilation has been on the books for 23 years without a single prosecution being made on it. The Act must therefore be supported in co-operation with other resources, as Baroness Uddin stated that “a solitary Act…without sufficient practical and mainstream support…will not be able to eradicate forced marriage.” On the contrary, some organisations such as Imkaan, a non-profitable organisation, have expressed the concern that the Act may deter some women from coming forward, as it asks them to completely isolate themselves from their family and community in a very public way. Furthermore, the rules that govern the validity of marriages under the UK law, is the recognition that marriages vary depending on the country in which they took place. For example, if a marriage is regarded valid in the country where it took place, under most circumstances it will also be considered valid in the UK. Therefore, legal advice must be sought. The outcome varies where it is a religious or civil marriage. For instance, a religious divorce is not valid in the UK. However, authorities should never assume that a marriage is invalid simply because the victim says it was forced. In some circumstances, this will not be the case. As Munby J suggests, that “the real danger is the danger of stereotyping… it is important not to jump to assumptions based on stereotyping” that an allegation made against someone forcing the victim into marriage must be correct. In some cases, that person could be entirely innocent. This concern was also raised in the second reading of the FM Bill in the House of Lords by Lord Sheikh, representing the Conservative Muslims Forum. Therefore, the problem of proof in forced marriage cases is no less difficult than in other cases, such as rape.
Success of the Act:
Family law lawyer Anne-Marie Hutchinson OBE, who has dealt with cases of involuntary marriages confirms that since the FMA 2007, there has been an increase in the cases of forced marriages. Especially those designated to county courts are coming forward. However, as she correctly states that it is “not an increase in the incidents, but in the identifying of them.” Jasvinder Sanghera, head of support group Karma Nirvana, said that since the law was announced on 25 November, “the number of calls we have been taking has tripled”, as more young people feel that they are able to come forward. Those cases that previously would have been concealed or unreported by victims are now being reported, not just by the victims, but also by persons fearing for the victim’s safety and protection.
A breakthrough of the success of the Act was seen in the case of Dr Humeyra Abedin. A Bangladesh court’s decision in Dhaka to order her release has been hailed involved a Bangladeshi doctor in the UK who went to Bangladesh to pay a visit to her as a “landmark” ruling by her lawyer Anne-Marie Hutchinson OBE. The case “sick” mother. On reaching the country, she realised that her mother being ill was merely an excuse to get her to go to Bangladesh so she could get married to a spouse her parents had chosen for her. On immediate arrival she was locked into a room, with her passport and travel tickets confiscated. She could not escape the marriage, as she was held captive for four months in her native country, with four to five guards watching over her at any one time, and she was coerced into going ahead with the marriage ceremony. She was daily injected with anti-psychotic drugs and mood stabilisers at a psychiatric hospital, and told she would not be discharged until she declared that she will not be returning to the UK and will break all connections with anyone in the UK.
The only support she received was from her cousin who contacted lawyers at a human rights NGO, Ain o Shalish Kendro (ASK), who intervened. The High Court of Dhaka ordered her parents to come to the court and present her in person, which her parents refused to obey on many occasions. They felt that Humeyra should remain in their custody on the basis that she was not married and that she was mentally ill. The UK intervened when she managed to smuggle out an email to a friend in the UK. The High Court ordered the Commissioner and court officers at the trial where she was finally presented in person, to escort her to the British High Commission to ensure her safe return to the UK. It was the first case that utilised the FMA 2007, through which injunctions were successfully issued against Dr Abedin’s parents, a paternal uncle and the man she was allegedly forced to marry. Mr Justice Coleridge said “I shall grant further orders to protect Dr Abedin and prevent her being removed from this country again.” The case received immense media coverage especially due to its timing (shortly after the FMA 2007 came into action), and because she was unusually very educated, and was abroad. It was the first case where the UK used the new legislation to help a victim who was not a British national. However, as her lawyer suggests, the issue of nationality is not of relevance under the Act. The case is a landmark case, as “[t]he profile it’s [the case] received means that other people will feel that they can come forward and seek the relief that, as Mr Justice Coleridge said, they’re entitled to.”
The second incident of availing the protection orders was seen in a case in Lancashire where the police applied for orders to prevent a father from taking his daughter to Pakistan for marrying a partner he had chosen for her some years ago. The father was made to forfeit his passport and was successfully prohibited from taking his daughter abroad, safeguarding her position in the UK. Forced marriage no longer remains a “taboo topic”, and it is suggested that the Forced Marriage Act will go a long way towards tackling that pernicious practice, and is a shining example of cross-party co-operation to tackle the dreadful problem of people who are forced to marry. Furthermore, the point of a law against forced marriage is that it would enshrine a woman’s right to say ‘no’ sending a powerful message that Britain regards all young women, regardless of their origin, as individuals and not possessions.
