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Vardags Family Law Essay competition 2023/24 | Marylee Brown

 

Marylee Brown - Kings College London

The intended and unintended consequences of the Marriage and Civil Partnership (Minimum Age) Act 2022

Introduction

It is evident that child marriages and forced marriages can be defined as one in the same, as a forced marriage is defined as a marriage without full consent of one or both parties and a child lacks the capacity to fully consent to marriage. As per S.105 of the Children Act 1989 a child is considered any person under 18 unless the laws relevant to that child state the contrary. However, currently, within the devolved countries that make up the UK, the minimum age for marriage and civil partnership is 16, with parental consent, excluding Scotland which makes no mention of the latter. Mohindra argues that the current laws on the minimum age for marriage can lead to children being coerced into marriage and to support this theory 69% of Forced Marriage Protection Orders (FMPOs) are taken out by children under 18. The current legislation within the UK makes it difficult to prosecute due to requirements of coercion or duress that are difficult to prove in child marriages given children are dependent of their parents and for other religious reasons. It is also important to appreciate that the severity of child marriages cannot be solely dependent on the data provided as a large majority of cases regarding child marriages go unreported further adding to the gravity of the matter and the need for better protection of children within the law of the UK. These difficulties along with the UKs international obligation, have led to the much needed introduction of the Marriage and Civil Partnership (Minimum Age) Act 2022 (MACPMAA) which aims to tackle the issues with the current legislation surrounding child marriages. This essay will critically assess the impacts of the MACPMAA whilst considering its effect on the current minimum age act.

Child Marriages

Although there is a statistical decrease in under 18s getting married, the threat of child marriage is still an issue that must be tackled accordingly as UNICEF predicts that 110 million girls will marry over the next decade and outlines serious negative repercussions with child marriages that lead to reduced education levels leading to employability limitations and problems associated with early pregnancy. The Forced Marriage Unit records 26% of victims and potential victims of child marriage and within the MACPMA Bill examples of child marriages were given that led to rape and death. Child marriages are deemed a violation of childrens rights in accordance with the UN Convention on the Rights of a Child and therefore, is an issue that must be dealt with correctly and effectively in the UKs legislation.

Parental Consent

The need for parental consent as per S2 of the Marriage Act 1949 (MA) has raised question as to its purpose, as a marriage is still considered valid for under 18s regardless of whether or not there was parental consent. Parental consent has also been criticised as being a loophole for parents to abuse as they are able to groom their children into believing that child marriages are normal, as seen in Asian communities within the UK, as norms of izzat (honour) and sharam (shame) play an important role in the lives of many females within this community and imply that they should marry who their parents choose proving that change is needed within the current minimum age for marriage.

Issues With Prosecution Under the Current Legislation

The above raises difficulty to prosecute forced marriage under S121(1) of the Anti- social Behaviour, Crime and Policing Act 2014 (ASBCAPA) as coercion is needed in order to prosecute and often children in these situations do not recognise their marriage as being a child or forced marriage. It also raises difficulty for 16-17 whose marriages are valid unless it is forced, allowing for the marriage to be declared voidable in accordance with S12(1)(c) of the Matrimonial Causes Act 1973 (MCA). However, duress is needed in order to satisfy the meaning of force. Duress is seen in Hirani, where the parents of a 19 year old girl threatened to disown her unless she married who they proposed. Often, as 16-17 year olds are still heavily dependent on their parents, parents are able to persuade their children to marry without threatening them. In instances where there is duress, it could easily be argued that children often do not know their rights and for children that do know their rights, they must state the forced marriage in court, as a court order is needed to declare the marriage voidable and this raises problem as it may prevent children from making an application in fear of the outcome this poses on their quality of life with the perils associated with their parents or guardians being prosecuted.

Another difficulty the MCA poses is that the proceedings must be brought within 3 years and within that time period those involved are still young and vulnerable and may still be unaware of their rights making it difficult to realistically make an application within that time frame. The UKs response to this was to declare these marriages non-existent as seen in B v I where 3 years had passed but it was clear the marriage was forced and thus the judges decision was to declare the marriage void. This can be seen as a positive within the current legislation as 16-17 year olds are not confined to a time limit (as seen when deeming a marriage voidable) to declare their forced marriage void which somewhat protects children.

The Law concerning Religious Marriages and Forced Marriages

The laws surrounding the protection of children against religious marriages that a child gives consent to proves to be rather non-existent , as Latham gave example of a marriage in south-east England involving 15 year old girls who consented to their religious marriages and the police were unable to properly intervene as there was no proof of duress or coercion. This is an issue as it allows for children to engage in sexual activity within their marriage and leave education before time with no real involvement of the police to protect these children from the issues that may arise as a result of the religious marriage. Gaffney-Rhys also argues the lack of involvement of the authorities is due to the marriage being considered non-qualifying within the law as it does not reflect a valid marriage for the purposes of the MA 1949 as seen in Akhter.

However, the law makes it very clear that forced marriages civil or religious are unlawful and this is iterated in the Forced Marriage (Civil Protection) Act 2007 (FMCPA) which added provisions into the Family Law Act 1996 ( FLA) to emphasise that it is a form of domestic abuse. Domestic abuse is defined as any form of coercive behaviour as seen in the S1(C) of the Domestic Abuse Act 2021 (DAA) and S3 of the DAA 2021 shows that this is applicable to children. S.63A(1) of the FLA enables the courts to make FMPOs to protect victims and potential victims of forced civil or religious marriages as seen in Bedfordshire Police. Applications can be made ex parte as per S.63D FLA 1996 and applied A v SM where a female was made aware that her parents were going to force her to marry in Bangladesh and she sought FMPOs for herself and her seven siblings and as a result, her siblings were made wards of the court in order to prevent them from being sent overseas and investigations were made to determine whether interim care orders were necessary. Forced religious marriages can also be prosecuted under S121(4) of the ASBCAPA. However, as mentioned it is often difficult to satisfy the requirements of forced child marriages due to lack of evidence of coercion or duress.

Although there is little legislation surrounding religious marriages that are not forced, criminal law still plays a serious role in convicting offences regarding religious child marriages as criminal offences are still committed if individuals organise a marriage for a child under 16 as these marriages often involve sexual intercourse which is a convictable offence under the Sexual Offences Act 2003 as a child under the age of 16 cannot lawfully consent to sex. As a result of the harm a child will suffer because of this, an offence is also committed and punishable up to 10 years in prison under S1(1) of the Children and Young Persons Act 1933 given that it is likely this exposes a child to injury to physical and mental health. However, the need for legislation that specifically tackle the issues of child marriages regardless of whether it is civil or religious is much needed which is what the introduction of the MACPMAA 2022 is intended to.

International Obligation

Within the explanatory notes to the MACPMAA, reference was made to the UKs international obligation, specifically the UN Sustainable Development Goals to eliminate harmful traditional practices including child and forced marriage by 2030. Showing the UK is obliged to change the current minimum age for marriage as it currently allows for child marriages. In the Final Observations of the Committee on the Rights of the Child, it was strongly recommended that the UK should raise its minimum age of marriage to 18 in the devolved countries that makeup the UK, Overseas Territories and Crown dependencies to eradicate child marriages completely within the UK. Which further iterate the much needed change in the legislation within the UK in order to comply with their obligation as implied by Latham.

MACPMAA 2022

The introduction of the MACPMAA 2022 S1(2) will change the current minimum age for marriage within England and Wales as per the MA from 16 to 18, removing S3s requirement for parental consent completely and therefore, deems any marriage involving under 18s void and the Act makes clear that any form of child marriage is a forced marriage in the UK.

The intended consequence of the act is to eradicate child marriages within the UK, including those with parental consent in order to better protect children against marriages in which they have not lawfully consented to, and this also combat the problems associated with child marriages including leaving education and early pregnancy. The MACPMAA also shows the UK is trying to comply with their international duty to end child marriages by 2030 which is a strong message to other countries. It also ensures that marriages of children under 18 that occur overseas are not legally binding within England and Wales. Marriage of under 18s before the enforcement of the MACPMAA 2022 will still be considered valid as per S8 of the Act which is unfortunate as it does not protect 16-17 year olds whose marriages are valid and are potentially victims of forced marriages. Gaffney-Rhys also states that the MACPMAA 2022 makes no expressed declaration that marriages overseas involving children that are residences of the UK will not be recognised this weakens its overall message that child marriages are not acceptable within the England and Wales.

Adding to the weakened message, the MACPMAA 2022 is only raising the minimum age of marriage within England and Wales, as Scotland and Northern Ireland have their own distinctive legal systems. This, therefore, means the UK has not followed the recommendations given to implement across all the devolved countries that makeup the UK and unfortunately, this gives rise to complications when litigating. It also does not supply a strong and united stance in regard to the UKs position to child marriages as it is allowed in countries that makeup the UK, putting a strain in their international duty as they are undermining the global efforts to eradicate child marriages.

Not implementing the MACPMAA across all the devolved countries can raise unintended consequences of trafficking of children under 18 to the devolved countries, Overseas Territories and Crown Dependencies, where the minimum age for marriage remains at 16, which further raises the effectiveness of the MACPMAA if it is not implemented within the whole of the UK. However, there has been a consultation in Northern Ireland in regards to the minimum age of marriage and a request was made for a consultation in Scotland suggesting that there are possible changes that will be made in the near future which is a positive step forward.

The MACPMAA amends S121 of the ASBCAPA 2014 which means that child marriages are a punishable offence whether or not there is any violence, threats, coercion, or deception and applies regardless of if the marriage is done in England and Wales or another country if the persons involved are domiciled within England and Wales. This tackles the issue that was once problematic and makes it easier to prosecute child marriages regardless of how it was brought about. Within the new provision S121(7A), an offence under S121(3A) is committed if it is for the purposes of causing a child that is domiciled in England and Wales to marry which means this provision is applicable to the families of 16 and 17 year olds who intend to send their child overseas for the purpose of a child marriage. Gaffney-Rhys states that this provision further solidifies the message to those that work closely with children that an offence is being committed if a child is being made to travel for the intention of marriage and it is therefore a crime that they must report. This suggests reports of child marriages might increase as those working with children now have an obligation to report it which will hopefully lead to a decline in attempted child marriages overseas.

Civil Partnerships

The current laws concerning Civil Partnerships mirror the MA allowing for the minimum age a person can enter a civil partnership being 16, the MACPMAA will impact the Civil Partnership Act 2004 (CPA) changing the minimum age to 18 and deleting the section on parental consent. The MACPMAA does not have any impact on the ASBCAPA in regard to forced civil partnerships, as this is not a prevalent issue that raises concern within the UK.

Conclusion

Through the introduction of the MACPMAA, the UK have shown their intentions to better protect children from child marriages by changing the minimum age for marriage within England and Wales to 18, deeming marriages of under 18s void once the Act is enforced. Through the introduction of the Act, the UK has taken a positive step forward in strengthening the legislation involving religious and civil child marriages by deeming any form of child marriage as a forced marriages which is a punishable offence under the ASBCAPA strengthening the overall message that it is immoral and illegal. The UK has an international duty to eradicate child marriages by 2030 and have made positive steps forward to do so, however, in order to successfully do so and not undermine the global objective of ending child marriage, it is necessary for the UK to implement the MACPMAA across the devolved countries that make up the UK in order to effectively achieve their objective.

 

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Bibliography

Primary Sources Cases

Attorney General v Akhter [2020] EWCA Civ 122 A v SM & anor [2012] EWHC 435 (Fam)

Bedfordshire Police Constabulary v RU and another [2013] EWHC 2350 (Fam) B v I (Forced Marriage) [2010] 1 FLR 1721

De Reneville v De Reneville [1948] 1 ALL ER 56 at 100

Hirani v Hirani [1983] 4 FLR 232

Statutes

Anti-social Behaviour, Crime and Policing Act 2014 Children Act 1989

Civil Partnership Act 2004

Civil Partnership (Scotland) Act 2004 Marriage Act 1949

Marriage and Civil Partnership (Minimum Age) Act 2022 Marriage (Declaration of Law Act (Northern Ireland) 1944 Marriage (Scotland) Act 1977

Matrimonial Causes Act 1973 Sexual Offences Act 2003 Statutory Instruments Family Law Act 1996 International Law

UN Convention on the Rights of the Child 1989

UN Universal Declaration of Human Rights 1948

Secondary Sources Books

Barnett, H. Childrens Rights and the Law (First published 2022, Routledge 1836) Herring, J. Family Law (Pearson, 2021, 10th Edition)

Journal Articles

Child marriage or forced marriage? South Asian Communities in Northeast England, 2009, Children & Society Vol.23

Gaffney-Rhys, R. Raising the minimum age for marriage and civil partnerships Family Law, Vol.52 1371

Gaffney-Rhys, The Legal Status of Forced Marriages: Void, Voidable or Non- existent? IFL, November 2010

Quentin Wodon Child Marriage, Family Law, and Religion: An Introduction to the Fall 2015 Issue Volume 13, 2015

Wiseman N. Marriage and Civil Partnership (Minimum Age) Act 2022 Family Law 867 [2022]

 

Command Papers and Law Commission Reports

Explanatory Notes to the Marriage and Civil Partnership (Minimum Age) Bill

 

Websites

Child Marriages around the world UNICEF, 2021 ONS, Marriages in England and Wales, 2018 dataset, Tables 3 and 4; ONS, Mid- year population

 

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