Violence inflicted on a family member because of a belief that this particular person may bring or is bringing dishonour on the family is something that affects many families, including international families. There may be violence in forced marriage and stranded spouse cases as well as other situations. There are a number of protective steps the Court can take to help people in these situations, including making what are called Non Molestation Orders prohibiting a person from being violent, threatening violence or intimidating and harassing or instructing anyone else to carry out these acts.
Stranded spouse cases are those in which the family travel abroad together, usually with their children, for what is thought to be a holiday, often to visit relatives. Usually one of the spouses is British and the other is a foreign national or originally from the country to where the holiday is taking place.
Once the family have arrived in the foreign country, one of the spouses finds themselves abandoned, with all their travel documents having been removed from them. They then come to the realisation that their spouse has stranded them in the foreign country with no means to return home while they themselves have returned to England with the children. The returning spouse will then claim that the other has abandoned them and the children.
There is usually an overlap between family and immigration laws in these cases and urgent action is needed, especially the children may have been separated from the parent that usually cares for them. In these situations, proceedings would be started at the High Court in London to make the children Wards of the Court which would then mean the High Court would be the children’s guardian and no important steps in relation to the children can then be taken without the consent of the Court.
In these legal proceedings, the Court will make those Orders that it considers necessary for the children’s welfare and in doing so it will consider the stranded parent’s situation and make any Orders it considers necessary to facilitate the parent’s return to England. The situation is more complex if the stranded spouse has been abandoned abroad with the children or there are no children of the family.
Forced marriages should not be confused with arranged marriages. Arranged marriages take place with both parties’ full consent to the marriage and they only differ to other marriages by the fact the couple are introduced to each other by family, friends or another member of their community.
After the initial introduction, the couple comes to the decision themselves to marry each other. Forced marriages are fundamentally different. Forced marriages are those where one or neither party to the marriage consent to it and the marriage takes place under duress.
Duress is a form of pressure. Quite often pressure is used by telling the person being forced to marry that they will bring shame and dishonour on their family if the marriage does not take place. In this situation there may be threats to pressurise one or both parties to the marriage. Sometimes a person is taken abroad for the purposes of forcing them into marriage and they are held there and prevented from returning to England until the marriage has gone ahead. The type and amount of pressure that then leads to the forced marriage will depend on the characteristics of the individual.
Since the end of 2008, the Court has had the power to make Forced Marriage Protection Orders under the Forced Marriage (Civil Protection) Act 2007. There are a number of things that the Court can include in a Forced Marriage Protection Order to protect a person. The application for a Forced Marriage Protection Order does not have to be made by the actual person being forced into marriage and can be made by a third party on their behalf, for example by a public authority, a friend or family member.
This recognises that the actual people needing protection are not always able to make the Court application themselves, particularly if they are being held abroad. It also recognises that the person being forced into marriage may need and want the Court’s protection but would rather that a third party to seek the Court’s help for them as they do not wish to be further ostracised by their family and community.
Disobeying a Forced Marriage Protection Order can result in a sentence of up to 5 years in prison.
Forced marriage is also a criminal offence but the fact that the English family courts have the ability to protect people in these situations means that those people who simply want protection and not for their family members to be punished in the criminal courts, can still seek help to the extent they feel comfortable.
Female genital mutilation (FGM) is a practice that has been carried out for many generations in some countries around the world. In those countries, it is a cultural norm. In England however, FGM is unlawful. Often a girl may be in danger of FGM if one or both of her parents are from or have a family connection to a country where FGM is commonly practiced and there is a fear that the girl will be taken to that country for the purposes of FGM to be carried out. Sometimes the concern is that even if neither parent is supportive of FGM, their relatives in the other country would intervene (particularly if there is a certain hierarchy within the family) and attempt to cause the FGM to be undertaken because of their such strongly held beliefs in the practice of FGM. In this sort of situation, the English Court may be faced with an application by one of the parents or a public body such as the Local Authority to prevent the girl from being taken abroad along with an application for a protective order preventing the FGM from being carried out.
Under the Female Genital Mutilation Act 2003, the Court has the power to make an FGM Protection Order to protect a girl against the carrying out of an FGM offence or protecting a girl against whom such an offence has already been carried out. When the Court considers whether to make such a Protection Order, it will have regard to all the circumstances, including the need to secure the health, safety and wellbeing of the girl to be protected. Much like forced marriage law, the law against FGM is very wide and the Court has the power to prohibit individuals from doing a range of acts and imposing restrictions and requirements as may be needed to protect the girl. This may include an Order for one or both parents to surrender the child’s passport along with their own.