The Scottish Government recently commissioned a study to gauge understanding of forced marriage in Scotland. The report is available here and will be of interest to local authorities, police, schools, health practitioners, legal professionals and third sector agencies who may encounter individuals at risk of forced marriage in their day-to-day activities.
The headline message in the report is that more could be done to help relevant professionals and organisations to understand forced marriage and to support victim
- There needs to be a deeper and more insightful understanding of forced marriage as a process, rather than an even.
- There should be more robust local authority procedures for supporting adult victims who have capacity (i.e. those who do not meet the adult protection support criteria).
- Local authority policy should be streamlined across all areas to increase consistency of approach throughout Scotland.
In the area of legal protection from forced marriage, the report recognises that recourse to civil forced marriage protection orders (FMPOs) under the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 has been infrequent (only 12 granted since the legislation came into force at the end of November 2011).
The apparent reluctance by local authorities to apply for FMPOs may in part be due to uncertainty about the degree and quality of evidence needed. We have dealt with forced marriage cases for Scottish councils. There has been significant uncertainty following the case of City of Edinburgh Council v S, which many have read as creating a high evidential threshold for FMPOs.
In that case, the sheriff was careful not to approach the issue of forced marriage too narrowly. For example, she noted that it would inconsistent with the legislative intention to require evidence of an actual marriage. All that the court required was to find, on the balance of probabilities, that the evidence supported the granting of a FMPO. The definition of force was widely drawn, but there had to be evidence to support an apprehension of force or coercion. Care had to be taken not to blur the lines between forced and arranged marriage. Appropriate weight must also be given to the wishes and feelings expressed by the woman who is the subject of the order. No order was granted in that case because most of the evidence led by the authority concerned the circumstances of the marriages of S’s older sisters. There was insufficient evidence to support the contention that S’s siblings had been forced into marriage.
In an attempt to counter the apparent evidential barriers, the report calls for all professionals involved to start to view forced marriage as a process of ‘grooming’ or socialisation, rather than a single event.
What is clear is that local authorities will need to get to grips with the concept and risks to ensure that they are properly discharging their statutory duties, particularly as the report calls for local authorities’ obligations to provide support (legal or other) in all cases of forced marriage to be made more explicit.