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Civil remedy for victims of forced marriage

Drafters should include a civil order for protection remedy for victims under threat of forced marriage or already in a forced marriage. The civil order for protection remedy should include the option for an emergency ex parte protection order. Laws should criminalize violations of protection orders. Drafters may apply much of the same theory on domestic violence to orders for protection in forced marriage cases: the goals are to afford protection to the victim through a speedy process that acts as an alternative to criminal prosecution. (See: Drafting Legislation on Domestic Violence, Orders for Protection, and Sample Orders for Protection, Stop VAW, The Advocates for Human Rights for information on orders for protection in domestic violence cases)

Laws should ensure that where the petition is filed by a third party on behalf of an adult woman, the petition can only be brought with her consent. Third parties could misuse the provision, as in the case of an ex-partner seeking revenge by falsely claiming the victim is in a forced marriage or in cases where a state agency seeks an order for protection on behalf of a victim to recompense costs it incurred for housing the victim. An exception to the third party rule is where the victim is unable to file an application herself, whether because she is falsely imprisoned, in another country or is a vulnerable adult. In these cases, the rules of court should require that there be as much information provided as possible to demonstrate the likely level of the victim’s support for the application. Third party applications on behalf of a child should only be permitted with court permission or appointment of a guardian ad litem, except in the case of local authority chidlren’s services who, as the relevant third party, no longer require leave of the court to issue an application on behalf of someone else. (See: UK Ministry of Justice,  Forced Marriage (Civil Protection) Act 2007: Guidance for local authorities as relevant third party and information relevant to multi-agency partnership working, Forced Marriage (Civil Protection) Act 2007: Guidance for local authorities as relevant third party and information relevant to multi-agency partnership working,October 2009; Forced Marriage (Civil Protection) Act 2007 Relevant Third Party, UK Ministry of Justice, Forced Marriage (Civil Protection) Act 2007 Relevant Third Party , 2008).

 

Promising practice: In 2007, the United Kingdom passed the Forced Marriage (Civil Protection) Act 2007, Forced Marriage (Civil Protection) Act 2007, which entered into force in 2008. The law enables a number of designated courts in England and Wales to issue Forced Marriage Protection Orders, including emergency (ex parte) protection orders, to protect victims who face the threat of forced marriage or those who are already in a forced marriage. Violation of a protection order is a contempt of court and punishable by up to two years’ imprisonment. Judges may order the following types of relief:

  • Prevention of a forced marriage
  • Surrender of passports
  • Cessation of intimidation and violence
  • Disclosure of a person’s whereabouts
  • Prevention of taking someone beyond the country’s borders

A policy paper, “One Year On,” was produced to mark the first anniversary of the Act and provided a view of how the Act was being implemented. The report showed that the provisions were being used and that twice as many applications had been made in 2009 than anticipated. Also, in November 2009, the first conviction for violation of an order for protection against forced marriage was handed down. The perpetrator was sentenced to 200 hours of community service, however, rather than imprisonment. Violations of orders for protection should be criminalized and punished with a prison sentence. (See: James Tozer, Spared Jail, The Forced Marriage Case Father Who Told Wife: “I’ll Cut out Your Tongue, MailOnline, Nov. 19, 2009)

 

 

Promising Practice: Habeas corpus petitions have been sought in forced marriage cases in Bangladesh and Pakistan. Petitioners may bring an application under Article 102(2)(b) of the Bangladesh Constitution governing the powers of the High Court. “[I]f satisfied that no other equally efficacious remedy is provided by law…” the High Court may “on the application of any person, make an order- (i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.” In this case, a third party or organization may file a habeas petition before the court regarding the alleged detention. In three cases, brought on behalf of British nationals forced to marry in Bangladesh, the court ruled that the women be released. (See Hossain and Turner, Abduction for Forced Marriage: Rights and Remedies in Bangladesh and Pakistan) These habeas petitions address women and girls in unlawful custody, such as a forced marriage that involves false imprisonment, but cannot be used to determine the validity of marriages. Also, a party may bring a habeas petition under Article 491 of the Code of Criminal Procedure (1898) regarding custody.