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MARRI-AGE: A Potential Solution?

29/06/2022

With almost no opposition and the backing of the Government, on 28 April 2022, the Marriage and Civil Partnership (Minimum Age) Act 2022 (the Act) was given Royal Assent. The Act makes consequential amendments to both the Marriage Act 1949 and the Civil Partnership Act 2004 while removing the avenue of parental consent as a route to earlier marriage. It also introduces new criminal offences for parents that facilitate child marriage (under 18 years old). It has been touted as a measure designed to “transform the life chances of many girls” and has been widely supported by both national and international organisations.

This article aims to explore the discourse surrounding this area of law, focusing on the previous protections in place before exploring the discourse surrounding forced marriage and evaluating the efficacy of the Act.

Changes

The Act modifies Section 2 of the Marriage Act 1949, raising the minimum age for marriage to 18 years old, and rendering any marriage between persons under that age as void. The Act makes similar amendments to Section 3 of the Civil Partnership Act 2004 in relation to minimum age requirements. Section 3 of the Marriage Act 1949 is removed which had previously provided for the marriage of individuals aged 16-17 with parental consent. A similar change is made to Section 4 of the Civil Partnership Act 2004. The Act also modifies Section 121 of the Anti-social Behaviour, Crime and Policing Act 2014 with the creation of the new crime of carrying out any conduct for the purpose of causing a child to enter marriage before a child’s 18th birthday. Under this new crime, any child that is caused to marry in England or Wales, is a habitual resident or is a UK national habitually resident in England or Wales is protected. The offence is either-way with a summary conviction term of up to 12 months and an indictable term of up to 7 years.

Previous Protections

It is important to note however, that previous governments have also made efforts to prevent child marriage. In 2005, the Forced Marriage Unit (FMU) was established to assist with outreach to affected individuals and communities. It also established a helpline that provides advice, assistance, and where necessary, repatriation of oversees victims.[1] In 2007, the government gave the courts the power to make Forced Marriage Protection Orders (FMCOs) which were designed to protect those who had been forced or were in the process of being forced into marriage. These orders contained conditions or directions designed to curtail the actions of an individual attempting to force another into marriage. The government took further action in 2014 by creating, at the time, the only two offences related to forced marriage[2]; the first being ‘causing any person to enter into marriage through coercion’, the second being ‘concerned the use of deception to cause a person to exit the UK for the purpose of being coerced into marriage.’

Evaluation

Despite these efforts, child marriage has been described as an “invisible but thriving issue” in the United Kingdom. The Office of National Statistics (ONS) marriage statistics for 2019 show that of the 219,00+ marriages that occurred in the UK that year, 422 involved men aged under 20, and 1,146 involved women under 20. Other 2017 reports state that of the near 1,200 reports sent to the FMU that year, more than a quarter involved victims under 18.[3]

These alarming statistics show that despite the efforts of previous governments to confront the issue, its prevalence remains. Furthermore, these official figures do not account for the multitude of religious and non-legal marriage ceremonies that take place each year and support the view that its prevalence in UK society is much higher than predicted. The international community has undertaken to eradicate child marriage by 2030. UNICEF notes that raising the minimum age for marriage to 18 years old and a strengthening of legal protections are essential for the realisation of this goal.[4]

There is, however, a sense that the government has not acted fast enough to tackle this issue. Charities and individuals have petitioned the government for several years for further protection, feeling that existing legal protections and government inaction had left children defenceless. Many have felt that the previous laws surrounding parental consent to the union of 16-17 year olds provided communities with a work-around, to allow them to continue in the practice of child marriage. For some children with overbearing parents, parental consent often equates to parental coercion, with parents ready to force unwilling children into marriage under its guise.

Another difficulty with the law pre-2022 is the amount of victim support necessary to prosecute perpetrators. Given the need to prove deception or coercion, victims were pressured into speaking out against their own families or communities to secure justice. As a result, many victims refused to support prosecutions given the fact that for members of these communities, their familial ties, standing and communal reputation are paramount. Of the few who persevered, many were subject to ostracism from their family and community, and in the most extreme cases, honour killings. Given the need for victim support, it is not surprising that one of the first cases of the deception crime under the 2014 Act was prosecuted as late as 2018[5], which further demonstrates the need for further governmental action.

Unfortunately, changes to this area of law have not been swift. Though FMCO’s were created in 2007, breaches were initially to be dealt with as a contempt of court, and it would be a further 7 years for breach of an FMCO to be considered a criminal offence. Further, despite pleas for further protections after the 2014 law, it would be another 8 years for further protections to be passed, although legal experts have long supported the idea of amalgamating forced marriage protection to existing methods of combatting modern slavery as a way to raise conviction rates by taking the onus off of victim support for prosecutions[6].

Regardless of the most recent legal developments, the governments’ recent track record on this issue suggests that it must act quicker to ensure that children are protected and forced marriages are prevented.

Challenges

The 2022 Act has been greeted with widespread approval. However, there are issues as to how the new law is to be implemented and its’ effects. Crucially, the main challenge that this new approach faces is dealing with parents and other individuals found guilty of this offence. Given that these offences carry a sentence of up to 7 years’ imprisonment, and with the government anticipating sentences of about 3.9 years’ imprisonment[7], judges must anticipate handling sensitive family situations where prison sentences may cause irreversible damage to larger families with other children under 18 years old. How the courts are able to administer justice, all while having regard to the importance of a wholesome family will determine how posterity views the efficacy of this law. Further guidance on this issue is definitely required.

Another of the main criticisms of the new law is the lack of consultative involvement with interested parties. Reports show that in 2017, the countries with the highest numbers of child marriage in the UK were Pakistan (439 cases), Bangladesh (129 cases), Somalia (91 cases) and India (82).[8] Given such high rates among these communities, an alternative course of action would have been to develop further consultation spaces within these communities to raise awareness about the changes and ensure that all voices are adequately heard and represented during drafting and impact considerations. This need is heightened by the fact that the government, in its impact study noted that one of the groups that would be primarily impacted by the law would be religious/community groups[9]. The Roma Support Group noted that “it is the immediacy of the criminalisation without a period of consultation and education that we fear could lead to harmful consequences”[10]. Sadly, this is likely to have an adverse effect on the communities themselves, and the relationships between them and UK society at large. The result may be further feelings of alienation and disenchantment between these communities and wider society. This could manifest itself in disengagement with public services, with groups preferring to hide ‘communal affairs’ from responsible bodies. A further issue of enforcement arises due to the fact that without communal engagement, discovering further instances of child marriage will be challenging. This coupled with the fear of discovery of child marriage may drive the practice further underground and prevent at risk children and others from receiving the help that they need.

Furthermore, for some, the new law raises moral concerns in that the age for sexual consent remains at 16 years old; however, with the age of marriage raised to 18 years old, many religious communities and others will question the message this position sends to those of the younger generation about sex before marriage.

Conclusion

This legislative step represents a significant step forward in child protection and will further propel the UK to the worldwide goal of the elimination of child marriage. However, as important as the destination is, regard must also be had to the route taken to reach it. Years of relative inaction has allowed children to needlessly suffer without further protection, however without further guidance as to sentences for guilty parties and without further collaboration and education of these communities, this new development has the potential to inflict great harm and great good. Without a more nuanced approach in the future, parties may become further entrenched in their beliefs and opinions, preventing society from effectively stamping out child marriage definitively.


[1] Forced Marriage Guidance – https://www.gov.uk/guidance/forced-marriage#how-the-forced-marriage-unit-can-help

[2] Anti-social Behaviour, Crime and Policing Act 2014 – https://www.legislation.gov.uk/ukpga/2014/12/contents/enacted

[3] More than 1,000 cases of forced marriage in UK last year, report says – https://www.theguardian.com/society/2018/may/10/more-than-1000-cases-of-forced-marriage-in-uk-last-year-report-says

[4] Unicef – Towards Ending Child Marriage Report

[5] Thousands enslaved in forced marriages across UK, investigating finds – https://www.theguardian.com/global-development/2018/may/28/thousands-enslaved-in-forced-marriages-across-uk-investigation-finds

[6] Ibid 5

[7] Impact Assessment for Marriage and Civil Partnership (Minimum Age) Act 2022 – https://www.legislation.gov.uk/ukpga/2022/28/pdfs/ukpgaod_20220028_en_001.pdf

[8] More than 1,000 cases of forced marriage in UK last year, report says – https://www.theguardian.com/society/2018/may/10/more-than-1000-cases-of-forced-marriage-in-uk-last-year-report-says

[9] Ibid 7

[10] Roma Support Group – Marriage and Civil Partnership (Minimum Age) Bill

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