The Forced Marriage (Civil Protection) Act 2007 is due to come into force on 25 November, White Ribbon day, when people will be encouraged to wear a white ribbon to show that they do not condone violence towards women. The act will insert a new part 4A into the Family Law Act (FLA) 1996 to create a Forced Marriage Protection Order (FMPO).

The main aim of the act is to enable the family courts to prevent forced marriages from taking place and to stop attempts to force another person into marriage. Where a forced marriage has already taken place, the court will be able to make orders to protect the victim and help remove them from the situation.

There is a difference between arranged and forced marriage. In the case of a forced marriage, one or both parties do not consent.

The forced marriage unit (FMU) at the Foreign and Commonwealth Office dealt with more than 400 cases last year. There are many more unreported cases. Here is a typical example: a woman was duped by her father and brothers into going overseas on what she believed was a trip to discover her ethnic roots. She was held captive in a remote village, where she was threatened and beaten, and had her passport taken away. She was made to marry against her wishes. She managed to smuggle a letter to the British High Commission in which she said she was not being allowed to return to the UK and was being forced into a marriage. She was rescued and taken to a safe house back in the UK.

Key points of the FMPO

Only the victim can make an application for a non-molestation and occupation order. An application for a FMPO, however, can be made by the victim, relevant third party and any other person who is given leave. Relevant third parties are likely to include government bodies, the NSPCC, police, local authorities, non-governmental organisations and so on. Relatives and friends of the victim will need leave of the court to make an application.

Unlike other orders in the FLA, a FMPO is not restricted to associated persons. A FMPO can be made against a wide range of people.

The FMPO, like existing orders, can be made on an ex parte basis. Undertaking can be accepted and, if necessary, a power of arrest can be attached. Examples of types of orders the court may make are:Orders can apply to people who are not even named as respondents if it can be shown that the person knew about the order. The order can apply to those who aid, abet, encourage or assist another person to force, or attempt to force, a person to enter into marriage. ‘Force’ includes coercion by threats or other psychological means.

  • to prevent a forced marriage from occurring;
  • to hand over passports;
  • to stop intimidation and violence;
  • to reveal the whereabouts of a person;
  • to stop someone from being taken abroad;
  • to prevent contact; and
  • to change a name.

The order may relate to conduct in the UK and overseas. It will be interesting to see how this international aspect of the order will develop and whether other countries will enforce the order.

The court may make an order without an application if there are other family proceedings before it. The victim need not be party to these proceedings, but the respondent must be. For example, where a wife applies for a non-molestation order against the husband, a FMPO may be made in respect of their daughter if the father is trying to force her into a marriage.

A FMPO may be made for a specified period or until varied or discharged. A power of arrest can be attached if the respondent has used or threatened violence. Power of arrest enables a police officer to arrest without a warrant if the order is breached.

If there is no power of arrest attached, any person (with leave) can apply to court for issue of a warrant for arrest of a person who has failed to comply with the order or is in contempt of court in relation to the order.

Breach of a FMPO may be punishable by way of contempt proceedings in the family courts.

Mediation is likely to prove extremely dangerous in such cases. There have been cases of victims being murdered by their families while mediation was being undertaken.

Public funding: Victims will be entitled to public funding irrespective of their immigration status. Legal aid will be available under the same funding criteria as in domestic violence cases.

Courts: Only a small number of courts will hear applications under the act during the first phase of implementation. In an emergency, one can use any county court. Victims may prefer to go to a court outside their locality. Care needs to be taken if using interpreters from the victim’s local community.

Family Proceedings Rules 1991: New rules will be inserted at the end of part III of the Family Proceedings Rules 1991. An application for a FMPO will be made on form FL401A. A written request for leave to make an application will be made on form A. Notice of hearing will be in form FL402. The applicant will need to file a statement in form FL415 to confirm she has served the application. A person may request on form C that he or another person be joined as a party or cease to be a party. The record of the hearing will be on form D. The order shall be issued on form FL404B.

Minors: Certain minors may bring or defend proceedings without the consent of a next friend, or guardian ad litem, either where leave of the court is obtained or a solicitor considers that the minor is able to give instructions.

Immigration: The age at which someone can apply for a marriage visa will increase from 18 to 21 as part of a crackdown on forced marriage – 30% of the cases dealt with by the FMU involved victims aged between 18 and 21. Sponsors will be required to register their intention to marry overseas before they leave the UK.

Vulnerable adults: Some parents are using forced marriage as a long-term care option for people with learning disabilities. It will be interesting to see how the new act deals with these types of cases.

Bali Gill, Family law barrister, C Algar chambers, London