Association of Police Authorities

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Executive Director: Mark Castle

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28 March 2012

To whom it may concern Forced Marriage Consultation APA/Lancashire Police Authority (LPA) Response 1. The Association of Police Authorities (APA) represents police authorities in England, Wales and

Northern Ireland. It has two main functions: to act as the national voice of police authorities and influence the national agenda on their behalf; and to help police authorities do their job locally through the development of guidance and advice on national policing, criminal justice and community safety related issues.

2. Police authorities locally are responsible for setting the strategic policing plan for their force area and holding the chief constable to account for the policing service delivered. They also have responsibility for ensuring that policing services are efficient and effective; have a duty to consider resource allocation; and to secure Best Value through continuous improvements.

3. This joint APA/LPA response is a broad response that seeks to highlight key issues that impact on

victim’s witnesses and offenders. Forced marriage is a contentious subject and as such this response seeks to consider a number of perspectives, victim, witness and offender as opposed to answering very specific questions. The APA seeks to provide a broad response to the consultation.

4. The broad issue the Government is seeking views on is whether forcing someone to marry should

be a criminal offence or whether current arrangements provide adequate protection.

5. LPA have, on behalf of the APA and in response to the Government consultation, attempted to seek views from a selection of young men and women for the South Asian communities, the Police Service and ACPO practitioners and asked them to respond to the above issue. The main responses that came back highlighted the following issues:

The general feeling appears to be that forced marriages should not be criminalised. Although respondents felt that they wanted a message to go out that forced marriage is unacceptable, they were not sure how criminalising alone would stop forced marriages form happening.

The general view is that statutory bodies and organisations need to do more to raise awareness, take more preventative measure such as utilising the existing forced marriage protection orders to stop forced marriages from occurring in the first place.

There is a clear view expressed that where any violence or criminal offence occurs as a result of organising or contributing to the organisation of a forced marriage individuals should be prosecuted.

Views were expressed that where forced marriage was dealt with for example as part of a murder or rape case, the presence of Forced Marriage or 'Honour' Based Violence should be seen as an aggravating factor and as such should attract a more serious and/or higher sentence.

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There was a clear view amongst police service practitioners in the main that current laws allow specific offences to be prosecuted- a list of the key laws that police currently use are attached as Appendix 1.

Young people highlighted that parents who may organise forced marriages may themselves be victims of cultural and community rules and as such often make arrangements for marriages of their children to occur in order to protect them. This may seem perverse however the alternative would be a potential rejection of an individual or a whole family if community rules are not complied with. In such situations the perpetrator is also potential a victim and may also face ‘community’ punishment/ostracisation and as such their actions are as a direct result of duress placed upon them by their local ‘community’. The latter issues if they are to be dealt with effectively require a preventative and supportive approach and criminalising forced marriages would potentially jeopardise such approaches.

Criminalising forced marriages and a prison sentence where no criminal activity as currently defined under existing laws has taken place can result in a prison sentence for a parent/s when in fact support and guidance is required.

6. Dr Aisha Gill (a criminologist at Roehampton University) conducted research with a VAWG NGOS to ask whether they thought forced marriage should be made a criminal offence in 2010. 74 organisations and individuals responded to Dr Gill’s research, the 74 organisations support victims of forced marriages. They showed little appetite for a specific new offence, arguing that its creation would lead to the political temptation to declare that criminalisation has dealt with the problem of forced marriages.

7. Instead they argued that investing in prevention, protection of victims and the provision of support services may well offer better results. Crucially the report concludes that for many victims it is crucial that seeking help does not prevent future reconciliation with their families, especially their parents. In this regard, criminalisation may actively discourage many victims and potential victims from speaking out about the abuse/coercion they are facing.

8. In particular many of those involved in this field believe that many families would continue to find

ways around the legislation, especially by the simple expedient of taking the potential victim abroad. The research also found that:

• 50% felt that the Government should not create a specific offence concerning forced marriage.

• 64% felt that existing legislation is sufficient to tackle the issue. • Further research is needed into forced marriage in general, and specifically into the impact of the Forced Marriage Protection Orders and guidelines. • There is a widespread lack of understanding about existing legislation and how it should be

applied because many relevant professionals such as social workers and law enforcement officers, lack the knowledge of what comprises a forced marriage (including how it differs from an arranged marriage). This has inhibited the effective use of current civil and criminal remedies to combat the causes and consequences of forced marriage: a problem underpinned by the lack of monitoring of guidelines and policy implementation.

9. APA/LPA view is that the law should be expanded to ensure that adequate measures are being

taken by statutory organisations to tackle all the root causes of forced marriage, this is a long-term ambition. ‘Community’ respondents that expressed views in relation to the Governments consultation on criminalising forced marriages expressed that prisons sentences will potentially

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result in more victims of forced marriage as the affected community is likely to close in on itself in order to protect themselves, and as such making it harder for victims and potential victims to access the support they require.

10. Practitioners interviewed stated that administrating a prison sentence will be extremely difficult where no criminal offence as currently defined has occurred due to the fact that there are many conspirators that are involved in the arrangement of a forced marriage. To blame one or both parents could be unfair and prosecuting wider community and family members purely for the offence of a forced marriage can be extremely difficult.

11. For example the Female Genital Mutilation Act has been in place since 2003 (it carries a 14 year

maximum prison sentence for perpetrators) and although a hideous crime, no single prosecution has successfully resulted due to the lack of victims coming forward and due to lack of evidence to pursue with prosecution. Female genital mutilation (FGM) like forced marriages involves a number of perpetrators that ‘commission’ or actively engage in conducting the various forms of FGM. Many activists working against FGM seek to adapt the current FGM law to incorporate FGM civil protection orders (similar to the forced marriage protection order), that can be taken out to protect potential victims of FGM.

Recommendation 1: Do not criminalise forced marriages; rather create a new prison offence whereby if and when the conditions of a FMPO are breached a prison sentence can be applied. Any subsequent breach should attract a considerably higher sentence than the current 2 year prison sentence that can be applied as a result of a breach of an FMPO. Depending on the nature of any breach of the conditions stated on a FMPO the courts should have the flexibility to apply anything between 2 years minimum and a maximum of a 5 year sentence. 12. Without wishing to negate from the serious nature of forced marriages, the general view is that

Forced Marriages should not be criminalised, alternatively family courts can be set up where groups of family members can be issued, forced marriage protection orders and any breach of the order should be criminalised, the latter suggestion would be in line with Scottish law whereby breaches of forced marriage protection orders can result in a prison sentence, however the status of forced marriage should itself remains a civil offence and thereby more likely to encourage victims to come forward to report.

13. Elements of the Scottish model of forced marriage (Protection and Jurisdiction) Act 2011 and that of non-molestation orders should be incorporated into the FM (Civil Protection) Act 2007, for example an immediate power of arrest should exist where it has been believed that any one or more conditions of a FMPO have been breached and the higher 5 year prison option should be available to the courts.

14. Immediate criminalisation is potentially deemed to be damaging for communities and victims as

they may be less likely to come forward. If the first action taken against parents/close family members is likely to be a prison sanction it is widely believed by practitioners who deal with forced marriages that this would drive the issues underground. Victims do not want to lose their families and no law in the land can put in a measure that will ensure that a victim does not lose their family, as such civil measures in the first instance should be utilised, however measures that provide practitioners to pursue the option of a prison sentence when breaches occur should also be available, these should be a secondary measure when all else has failed. A victim approach must be taken, however this must stop short of doing nothing. Steps must always be taken regardless of the age of the victim to support them and place as much security and protection around them.

15. Please note that the APA/LPA view not to criminalise forced marriage does not equate to not taking

forced marriages seriously and not sanctioning any offences that may occur in the pursuit of forcing someone into a marriage.

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16. The APA/LPA stance is one that seeks to produce laws that are effective in stopping/preventing

forced marriages and not to merely create symbolic and principle based laws that may in fact not have the desired impact that the government intends to seek, i.e. criminalising in principle is a good intention however the impact may perversely be an adverse one from a victim/s perspective.

17. One of the key concerns from ‘community’ and policing practitioner responses is that there is not

enough support available for those that are affected by the cultural behaviours relating to forced marriage. Essentially they stated that there is a lack of awareness amongst statutory organisations in relation to how the issues relating to forced marriages in fact actually occur, despite the fact that national guidance exists. Not all professionals who are likely to be the first point of contact for victims fully trained or cited on the relevant learning information that would enable them to help victims.

Recommendation 2: Take the principles of S11 of the Children Act 2004 and encompass this within the Forced Marriage Civil Protection Act 2008, in order to create a partnership audit mechanism whereby all relevant statutory partners can be held to account. 18. The APA/LPA view is that there should be a capacity for inspection/audit built within any future

forced marriage protection law that states clearly that the duties of statutory organisations, in relation to their duties pertaining to training, monitoring of data and partnership working to assist in tackling forced marriages. Insufficient data currently exists and not all statutory bodies’ record forced marriages as a distinct form of abuse and violence.

19. It may be that the S11 audit tool which is designed to monitor and evaluate compliance of the local authority and partner agencies with their specific and general duties in respect of safeguarding as defined in Section 11 of the Children Act 2004 can be broadened to include safeguarding of all vulnerable people, not just young people.

20. The points above would encourage all statutory bodies to be more proactive and importantly make

them more accountable in relation to safeguarding issues across a broad spectrum of issues such as female genital mutilation, grooming, trafficking and not just forced marriage.

Recommendation 3: Probation programmes should be available as a condition of a FMPO in order to help tackle and manage potential perpetrator mind sets and to encourage a proactive approach to preventing forced marriages. 21. Probation programmes should be created that look at exploring perpetrator mind sets in relation to

forced marriages. The law should be extended whereby relevant agencies are able to work with potential offenders or those cited on a forced marriage protection order (FMPO) as part of the conditions of a FMPO. This will assist perpetrators in helping them to explore and potentially eradicate behaviours, cultural norms that are not acceptable in the UK; this may also assist in conciliation between the perpetrator/s and victim/s.

22. The alternative to conciliation is leaving the family and community, the latter in many cases often places victims in further isolation and therefore they face increased vulnerability as a victim struggles to ‘fit into’ new and unfamiliar environments. Organisations currently are not equipped to support victims who invariably have to ‘exit’ from their homes, family, culture and community.

23. The full range of conditions that can be applied to an FMPO are not clear, some individuals have

been extremely creative and have placed perpetrators properties/business on the FMPO and this has worked extremely well, as often potential perpetrators are prepared to go to a prison for 2 years but they are not prepared to lose their money or business. all FMPO's should have a condition; that all those named on the order should attend forced marriage training programmes

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designed to make those named re-think their actions, however no such programme that is accredited currently exists.

24. A single point of contact should be available for victims and witnesses. Court protection for

witnesses should be more readily available, witnesses who disclose information are from within the 'affected' community and as such these witnesses themselves will become targets of attack or 'honour' based violence.

25. Courts should make more use of 'honour' based violence and forced marriage expert witnesses,

such experts can relay the evidence on the victims' behalf and as such the victims themselves do not have to be cross-examined in court. The latter measure has been used, however it is only used occasionally and this measure currently rests on the discretion of the Judge or practitioners (police/social services) who prepare the case. Effectively a Judge or practitioners do not have to make use of ’honour’ based violence or forced marriage expert witnesses. Victims are often not in a position to fully explain what they have gone through. There is a cost associated with these measures and these costs should always be transferred to the prosecution where a victim's case is successful.

26. In summary, many of those that have been spoken to feel that the current law is not being used

effectively and more preventative measures are required. Criminalising forced marriages affects communities. The South Asian community in particular is starting to feel more and more under attack. There is also the view that the lines between arranged and forced marriages will become blurred, and communities will face pressure even when arranged marriages occur which are lawful when done without applying pressure to those that are the subjects of the arranged marriage.

27. Criminalising re-enforces a feeling of a community under attack. Criminalising can unfortunately

strengthen and re-enforce negative cultural traits and as such create even more victims who won't even recognise they are victims and unfortunately create an even more heightened situation where many victims don't even recognise that the behaviours they are being subjected breach their human rights.

28. Education and prevention coupled with the back stop of having sanctions in place is the way

forward. Criminalising may also make organisations feel that the issue is resolved and the easy answer will be just to punish those that are 'caught' and as such 'affected' communities fear the onus on prevention may not remain.

29. The issue of criminalising or not is a difficult question to answer, however to summarise and re-

iterate the APA/LPA position is that it that at this current moment in time disagrees with criminalising forced marriages. The APA/LPA wish to take a victim focused approach.

30. The APA wishes to recommend that a further review of the effectiveness of the Forced Marriage

Law be undertaken in 3 years’ time to ensure that all statutory bodies and organisation are making full use of the current Forced marriage legislation.

Yours sincerely

Saima Afzal MBE APA Board Member and lead for EDHR saima.afzal@lancashire.gov.uk

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APPENDIX 1

During the Act of conducting a Forced Marriage or when punishment is being administered by individual/s or community members for perceived breach of cultural norms that may 'dishonour' a family, the following offences often will be carried out by perpetrators and they include:

Common assault S.39 Criminal Justice Act 1988

Common assault (arrest able offence)

Chapter 28, Part 2, S.10 Domestic Violence, Crime and Victims Act, 2004

Cruelty to persons under 16 (including neglect and abandonment)

S.1 (1) Children and Young Persons Act 1933

Failure to secure regular attendance at school of a registered pupil

S.444 (1) Education Act 1996

Theft (e.g. passport)

S.1 (1) Theft Act 1968

Child Abduction

S.1 (1) Child Abduction Act 1984

Abduction of unmarried girl under the age of 16 from parent or guardian

S.20 (1) Sexual Offences Act 1956

Abduction of a woman by force or for the sake of her property

S.17 (1) Sexual Offences Act 1956

Rape

S.1 (1) Sexual Offences (Amendment) Act 2003

Aiding and abetting a criminal offence

Common Law Offence

Kidnapping

Common Law Offence

False Imprisonment

Common Law Offence

Murder Common Law Offence