A law that makes forced marriages a criminal offence would surely be welcomed by many, but it is a more complex issue than first appears, writes Stephen Ward

Each year, hundreds of Britons are forced into marriages, often by being taken abroad against their will. This month, the Home Office launched a consultation paper on a proposed new criminal offence of forced marriage to tackle the issue. The offence could be targeted at the family members who arrange the match, the clerics who conduct the ceremony, and anyone else who helps with the process.


However, the Home Office is at pains to point out that it will be aimed at forced – rather than arranged – marriages, and will not apply where the bride or groom has the final yes or no, and is not put under excessive pressure to accept.


There is no disagreement among lawyers that, as the Home Office minister Baroness Scotland said on publication of the paper, ‘forced marriage is wrong… It is an abuse of human rights’. The victims are mostly, but not all, women.


But the views of expert lawyers in the field suggest the Home Office is right to be consulting not only on the detail, but whether to go ahead at all in a sensitive and complex area fraught with cultural, religious and international considerations – not to mention legal difficulties. Ifath Nawaz, chairwoman of the Association of Muslim Lawyers, says: ‘We are concerned about the proposals because our view is that criminalisation is not the way to deal with the issue.’


Sailesh Mehta, a barrister at 2 Hare Court Chambers and chairman of the Society of Asian Lawyers, is in favour of a criminal law only if it demonstrably helps victims. He says: ‘I think the government must be genuinely unsure whether to proceed. Hopefully the fruit of the consultation will be deciding whether the pros outweigh the cons – and unfortunately there are some serious cons.’


The consultation paper proposes ‘to criminalise unacceptable behaviour intended to force someone into marriage by means that are not already criminal’. This could be a combination of repeated threats of social and financial ostracism, intimidation based on threats of destroying family honour, and non-specific threats of violence.


The new offence might cover facilitating or being witness to a forced marriage, which would include fraudulently signing documents. The government is also considering whether any offence should have extra-territorial dimensions to allow the prosecution of people who aid forced marriages abroad. The Foreign Office already advises and assists forced brides or grooms who ask embassies abroad for help with repatriation.


The new criminal offence would augment the existing legal framework, which allows for a criminal prosecution only if the forced marriage also involves offences such as kidnap, false imprisonment, assaults, harassment, child cruelty, sexual offences, or failing to ensure attendance at school.


Without those offences, the remedies for partners forced into marriage are civil. Under the Matrimonial Causes Act 1973, a marriage that has been entered into under duress can be annulled. The Court of Appeal ruled in Hirani v Hirani [1984] 4 FLR 232 that the test for duress for these purposes is ‘whether the mind of the applicant (the victim) has in fact been overborne, howsoever that was caused’.


A key argument in favour of a new offence is that over time it would send a stronger signal that forced marriages are wrong. Lorraine Harvey, a family law partner at Gorvins in Stockport, advised two forced brides this month where the offence was exacerbated by violence. She says: ‘I think making arranging a forced marriage a criminal offence would hopefully in the long term lead to a reduction in them.’


However, Anne-Marie Hutchinson, a family law partner at central London firm Dawson Cornwell, thinks few would be deterred from forcing marriages by the fact that to do so had become a criminal offence. She makes a comparison with section 1 of the Child Abduction Act 1984. ‘That hasn’t reduced by one iota the number of child abductions out of this country,’ she points out.


Ms Nawaz sees education as one potential answer, provided it is attempted in a systematic and official way. She points to a recent pilot project of 500 girls and their families in Egypt, teaching them the importance of letting girls study and having independent interests.


Ms Nawaz fears criminalising the process would ‘turn family members against family members’. She adds: ‘The healthy way is to educate people by telling them forced marriage is wrong, that their religion tells them it is wrong and society says it is wrong. In Islam there is no compulsion in marriage; both parties must consent or the marriage is void.’


Ms Hutchinson, who represents 150 victims of forced marriage every year, says her chief worry is that a new criminal offence would drive these women underground: ‘From my experience as a practitioner, I’ve a very real concern that a significant number would decline to come forward to seek the protection they need, because they would not be in control as they are in civil cases over what then happens to their parents.’


When she assures girls that the proceedings are not to punish the perpetrators but to protect or assist them, she finds that most of them then decide to keep going. ‘The majority want the assurance that it will not get their parents into trouble,’ she says. ‘Nine out of ten will raise that as a factor determining whether or not they want to go ahead.’


Ms Hutchinson has further worries about the effects of a prosecution on the victims themselves. She says: ‘The civil procedures are there to protect them and help them get on with their lives, allowing them to live separately and in hiding with a new identity if that is what they want. How would it be if they have to turn up nine months later to give evidence and be involved in the [criminal] court process?’


She adds that victims could find themselves at even greater risk because the prosecution of parents and others would raise the stakes, and make the whole community take an interest. Even siblings would put greater pressure on them ‘not to send mum and dad to prison’.


But to weigh against that, there would be practical advantages for victims in cases that stopped short of prosecution, because currently police powers to pursue any suspicions are limited. Ms Hutchinson says: ‘If they knock on the door and ask where a daughter is because she’s not been at school, and the parents say she’s on holiday in Bangladesh, or she’s gone away with friends and they don’t know where she is – at the moment they have to walk away. The new offence would mean the police could pursue it further and bring the parents in for questioning.’


There are further areas of worry over how the new offence would work in practice, and the higher burden of proof that would be required for civil cases. Mr Mehta, a criminal lawyer who used to work in family law, says: ‘There are often evidential difficulties with a prosecution where you have one main witness.’ However, he adds that the same problem exists in most sexual offences cases, so it is not a reason in itself not to have the legislation.


Ms Nawaz has additional worries about gauging levels of pressure put on people to marry. ‘What about the more subtle forms of duress?’ she asks. ‘Who will determine them? It will be almost impossible to prosecute for those lower levels of distress.’


Ms Hutchinson says many specialists have similar misgivings. ‘I’ve spoken to two criminal QCs and they say you’ll rarely get a successful prosecution because it is hard to prove force has been used.’ If forced marriage is made an extra-territorial offence, there will be even further difficulties, she predicts.


Not all legal opinion is dead set against a new law, however. ‘If a law is introduced, even if it is used very sparingly, that would not mean it had been a bad law to introduce,’ Mr Mehta says. ‘It will still be making an important symbolic statement.’


Stephen Ward is a freelance journalist