EXECUTIVE SUMMARY
This report presents the findings of a consultation on "Forced Marriage: A Civil Remedy?", through which the Scottish Government sought views on whether civil legislation on forced marriage should be introduced in Scotland, and a range of related issues. The consultation took place from December 2008 to the end of March 2009, and involved written submissions to 19 questions posed in the consultation document. The questions provided the opportunity to agree or disagree with a range of issues, and to provide further detailed information.
A total of 47 written responses were received. The most common type of respondents were those working to address domestic abuse (service providers, forums and partnerships), with more than a quarter of responses (28%) from such respondents. A further 15% of responses were received from other voluntary sector organisations (for example, organisations with a focus on women and / or other equality issues, and those working with families and children). The same proportion was received from police and legal respondents. A further 13% came from other public sector respondents (for example, local authorities, NHS respondents, and partnerships). Small numbers of responses were also received from individuals, faith organisations, educational institutions and community councils. Of the 42 responses from organisations, a total of 7 (17%) of these were from black and minority ethnic ( BME) organisations.
The material involved a combination of responses to the closed questions and a large amount of qualitative information relating to the key areas examined in the consultation: the sufficiency of civil remedies relating to forced marriage; and supporting actions and provisions. Respondents also made some additional comments on other issues.
Overall, there was a very high level of support for the introduction in Scotland of civil legislation on forced marriage. The more specific findings are discussed below.
Sufficiency of civil remedies relating to forced marriage
The document explored views of: accessing and using existing civil remedies; third party involvement; the use of orders to require as well as to prohibit actions; orders to be directed against anyone aiding, abetting, encouraging or conspiring with the principal perpetrator; the nature and use of powers of arrest and arrest warrants; the overall sufficiency of existing civil remedies and the need for specific civil remedies.
It was found that a large majority of respondents 1 believed that there are difficulties in accessing and using existing civil remedies in forced marriage cases. Those identified were: the costs involved for victims, and difficulties in accessing legal aid; a lack of awareness and understanding of civil remedies amongst members of the public, victims and professionals; the requirements of the process, legal structure and the nature of the remedies; and the specific nature of forced marriage and a lack of recognition of this. Some issues were also identified as affecting particular groups.
A large majority of respondents believed that allowing third party involvement is a good idea, with the reasons relating to overcoming some of the barriers in accessing and using civil remedies, particularly the need for victims to seek remedies directly themselves. Many identified the need for such a measure to be used carefully and regulated strictly, and some issues were raised which were seen to require consideration or clarification. A number of detailed suggestions were made about processes, procedures and requirements.
Almost three quarters of respondents believed that the law should be able to positively require a person to do something. Amongst the perceived benefits were that this could help to prevent forced marriage, and extend the means of protecting victims. Almost all of the respondents agreed that orders should be allowed to be directed against anyone aiding, abetting, encouraging or conspiring with the principal perpetrator. The main reasons given for such a view were that this may provide a means of addressing issues relating to the nature of forced marriage, and the frequent involvement, collusion and conspiracy by various family and community members.
There was considerable support amongst respondents for power of arrest to be able to be used against those other than just the person against whom the order is primarily directed. The most common benefits were seen to relate to addressing problems arising from the likely involvement of those other than the principal perpetrator. Some issues for consideration were also raised in relation to procedures, or the nature of potential provision. Just under two thirds of respondents also believed that a power of arrest should be able to be used against someone who may be unaware of the existence or contents of an order, although some reservations were expressed and issues raised. The most common reason in favour of this was that not knowing about the law, or an order, was not seen to be a legitimate defence. A large majority of respondents supported making provision to enable the person protected by an order to apply to the court for an arrest warrant if they believe the order has been breached, although some believed that the power of arrest should be attached from the start, and a small number of other issues were raised. Amongst the perceived benefits were that this would offer additional options for the victim, increase their protection and safety and give them control, as well as emphasising the seriousness of forced marriage, enabling an appropriate response, reducing costs and providing parity across the UK.
A large majority of respondents stated that they did not consider existing civil remedies to be sufficient. Similarly, a large majority believed that the Scottish Government should introduce specific civil remedies in relation to forced marriage. Some respondents made further comments on the nature of the remedies, or issues which they believed should be taken into account.
Supporting actions and provisions
The consultation document explored views of: the need for statutory guidance; protection for children and young people under 16; protection covering civil partnerships; access to legal aid; current work by respondents to address forced marriage; and views of other actions required.
Almost all of the respondents believed that there is a need for statutory guidance in Scotland, with the most common themes relating to: the need for awareness of forced marriage issues and appropriate responses; the need for clarity of roles; and the need to ensure that appropriate action is taken. Suggestions were made about issues which should be included in such guidance.
Almost two thirds of respondents believed that there is not enough protection in Scotland for children and young people under 16 affected by forced marriage, although around a quarter stated that there is sufficient protection. A common issue raised was a lack of awareness of forced marriage issues rather than gaps in the actual provision of measures, although a small number of gaps in measures themselves were also suggested. A number of suggestions for possible actions were made.
The vast majority of respondents believed that any legislation on forced marriage should be extended to cover forcing someone into a civil partnership, although several suggested that such a situation would be less common. The main reason given for the perceived need for the inclusion of civil partnerships related to the importance of equality and the provision of the same level of protection for everyone.
Around two thirds of respondents believed that there are difficulties in accessing civil legal aid for the current civil remedies. These were identified as including: increasing difficulties with this; difficulties in finding a solicitor accepting civil legal aid; a lack of knowledge of legal aid and entitlements; issues with timing and qualifying criteria; the need for a "legal basis" for a case; general access difficulties; and specific difficulties for victims with no recourse to public funds. Just over half of the respondents believed that the same issues would arise in relation to any new statutory civil remedies that may be developed.
A number of respondents identified that they or their organisation were currently working to address forced marriage. The most common types of work identified were awareness raising and training, and the general inclusion of forced marriage issues in other work. Other forms of work were also highlighted.
Respondents made a range of suggestions for other action considered to be required by the Scottish Government and others. A large majority of respondents believed that agencies in Scotland (both statutory and voluntary) need to improve their response to cases of forced marriage. The most common type of non-legislative action identified as being required by the Scottish Government and others was awareness raising and training with members of the public, particular communities and service providers.
Additional forms of work suggested included: provision of information and guidance; provision of funding and resources; development of support to victims; and the improvement of the evidence base. A number of respondents suggested the need to address issues for particular groups, or to tackle specific issues. Groups included: victims with no recourse to public funds; children missing from education; people with learning disabilities; and people in other specific groups. Issues included: the level of reporting and uptake of remedies; the intersection of issues; and issues relating to sexual orientation. A number of additional suggestions were also made, and the importance of multi-agency and / or partnership working was stressed.
Other comments
Respondents were given the opportunity to make additional comments.
Some provided detailed information about specific aspects of the nature of forced marriage which they identified as being relevant to the consultation.
Some respondents identified their own experience of working with specific forced marriage cases and provided detailed examples in their responses, which can help to inform the way forward.
Issues were also identified which are seen to affect particular groups of victims of forced marriage. These included: victims with no access to public funding; people with learning disabilities; people with hearing impairments and people for whom English is not their first language; children; people with mental health problems; and men. It was also suggested that there are specific issues relating to sexual orientation. Some respondents provided detailed information about issues affecting these groups.
Some respondents identified additional issues for consideration relating particularly to general principles and ways of working in tackling forced marriage.
Some respondents identified the ways in which their response to the consultation had been generated. Examples included, for some respondents: discussion at a focus group or event; discussion with relevant individuals, organisations and parts of organisations; and consideration by a specific Committee or sub-Committee. Some respondents provided detailed information about the nature of their organisation and the coverage of their response.
A number of respondents made positive comments about the consultation, including commending the Scottish Government for addressing the issue, and welcoming the consultation and the opportunity to comment. Some stressed the importance of the issue. A small number of comments were made about the scope of the consultation or the issues included.