Honour Based Violence and Forced Marriage
- The offence of FM
- Criminalisation of a breach of a FM Protection Order
- Honour based violence
- CPS Violence against Women and Girls Strategy
- Legislation on FM
- Legislation regarding Breach of a FMPO
- Identification and Flagging
- Evidential Consideration
- Further information on HBV and FM
- Annex A
- Annex B
- Annex C
- Annex D
- Annex E
- Annex F
- This Guidance addresses:
- The new offence of Forced Marriage (FM);
- Criminalisation of a breach of a Forced Marriage Protection Order; and
- Evidential consideration when reviewing and charging cases of Honour Based Violence and FM.
- A Forced Marriage (FM) is a marriage conducted without the valid consent of one or both parties and where duress is a factor. FM is now a specific offence under s121 of the Anti-Social Behaviour, Crime and Policing Act 2014 and comes into force on 16 June 2014. Prior to the introduction of the new offence, prosecutors have dealt with FM cases using existing legislation such as false imprisonment, kidnapping and offences of violence where this is a feature of the offending.
- A Forced Marriage Protection Order (FMPO) is a civil remedy issued under the FM (Civil Protection) Act 2007. It offers protection to a victim from all civil or religious ceremonies, by forbidding the respondent(s) themselves, or by encouraging or agreeing with any person whatsoever, from entering into any agreements in relation to the engagement or matrimony. A FMPO may contain such prohibitions, restrictions or requirements and any other such terms as the court considers appropriate for the purposes of the order. An application for a FMPO can be made by a victim, a person obtaining the court's permission to apply for an order on behalf of the victim, a relevant third party or by the court of its own volition.
- Breach of a FMPO is now a criminal offence under s120 of the Anti-Social Behaviour, Crime and Policing Act 2014 which comes into force on 16 June 2014.
- Prosecutors should note that a breach of a FMPO can be referred to the CPS by the police if a victim reports it in the first instance. A breach of a FMPO should be treated in the same way as a prosecution of any other breach of an order for example, a breach of a non-molestation order.
- There is no specific offence of "honour based crime". It is an umbrella term to encompass various offences covered by existing legislation. Honour based violence (HBV) can be described as a collection of practices, which are used to control behaviour within families or other social groups to protect perceived cultural and religious beliefs and/or honour. Such violence can occur when perpetrators perceive that a relative has shamed the family and/or community by breaking their honour code.
- It is a violation of human rights and may be a form of domestic and/or sexual violence. There is no, and cannot be, honour or justification for abusing the human rights of others.
- The CPS, ACPO and support groups have a common definition of HBV:
"'Honour based violence' is a crime or incident which has or may have been committed to protect or defend the honour of the family and/or community."
- This guidance uses the term HBV throughout to frame various forms of violence arising from notions of so-called honour and in line with the terminology used by academics, statutory and non-statutory agencies worldwide in relation to such violence.
- The Crown Prosecution Service (CPS) is fully committed to prosecuting fairly and effectively all those who harm others in the name of 'honour'. This commitment is embedded in the CPS Violence against Women and Girls Strategy.
Section 173 of the Policing and Crime Act 2017 commenced on 31 January 2017. This provision provides lifelong anonymity for victims of FM. The protection applies from the time an allegation is made. From that point, the publication or broadcast of any information likely to result in the identity of a victim being identified to members of the public will be prohibited. The protection given is broad and wide-ranging; it covers traditional print and broadcast media as well as information published online, including on social media. It will be an offence to publish information in contravention of the prohibition (the maximum penalty for the offence is an unlimited fine). The aim of this measure is to give more victims the confidence to come forward so they receive the support they deserve and perpetrators are brought to justice.
- The new offence of FM comes into effect on 16 June 2014. The legislation states:
s121(1) - A person commits an offence under the law of England and Wales if he or she -
- uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and
- believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.
S121(3) - A person commits an offence under the law of England and Wales if he or she -
- practises any form of deception with the intention of causing another person to leave the United Kingdom, and
- intends the other person to be subjected to conduct outside the United Kingdom that is an offence under subs (1) or would be an offence under that subsection if the victim were in England or Wales
- The new offence of FM will apply to a person who intentionally forces a person to enter into marriage, believing the person does not consent, or a person who deceives someone into going abroad for the specific purpose of forcing them to marry. An offence is committed whether or not the FM goes ahead.
- Subs (1) makes it a criminal offence, under the law in England and Wales, for a person to use violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage without their free and full consent.
- Coercion means an external force which cannot be resisted and which pushes its victim into acting in a way other than that wished for. Coercion includes emotional force, physical force or the threat of physical force and financial pressure.
- Where the victim lacks the capacity to consent (within the meaning of the Mental Capacity Act 2005) the offence is capable of being committed by any conduct carried out for the purpose of causing the victim to marry, whether or not it amounts to violence, threats or any other form of coercion. (Subs (2))
- Subs (3) includes as a criminal offence any form of deception practised with the intention both of causing another person to leave the United Kingdom to travel to another country and that the other person be subjected to conduct that is an offence under subs (1) or would be an offence if the victim were in England and Wales.
- Subs (4) provides that "marriage" means any religious or civil ceremony of marriage recognised by the customs of the parties to it, or the laws of any country in which it is carried out, as constituting a binding agreement, whether or not it would be legally binding according to the law of England and Wales.
- Subs (6) provides that an offence is committed whether the violence, threats or other forms of coercion are directed at the victim of a FM or another person.
- Subss (7) and (8) make provision to take extra-territorial jurisdiction over both the coercion and deception elements of the new offence. Any of the prohibited acts in subss (1) and (2) carried out outside the UK by a UK national or person habitually resident in England or Wales, or to a UK national or person habitually resident in England or Wales, will be an offence under domestic law and triable in the courts of England and Wales. The effect of subs (5)(b) is that it will also be an offence under domestic law if the prohibited acts in subs (1) or (2) are conducted by or against a person habitually resident in England and Wales, but take place in Scotland or Northern Ireland.
- Subss (9) and (10) set out the maximum penalties for the new offences in subss (1) and (2). On summary conviction the maximum penalty is a fine or six months' imprisonment (rising to 12 months once the increase in magistrates' courts sentencing powers in s154(1) of the Criminal Justice Act 2003 is commenced), or both, and on conviction on indictment the maximum penalty is seven years' imprisonment.
- The offence of breaching a FMPO came into effect on 16 June 2014. Section 120(1) of the Anti-Social Behaviour, Crime and Policing Act 2014 inserted the new s63CA into Part 4A of the Family Law Act 1996. Under this new section, a person who without reasonable excuse does anything that the person is prohibited from doing by a FMPO is guilty of an offence. A breach of a FMPO will carry a maximum penalty of five year's imprisonment.
- The police will now be able to arrest for breach of a FMPO, without the need for the courts to have attached a power of arrest to the order, or for the victim to apply to the civil court for an arrest warrant.
- Prosecutors should note that under the new s63CA (2), an individual would only be guilty of a criminal offence if he/she is aware of the existence of the order at the time of the breach.
- For a victim who does not want to pursue criminal proceedings, the option will still remain of applying for an arrest warrant for breach of a FMPO in the civil court.
- Subss (3) and (4) of the s63CA make provision to preclude double jeopardy so that where a person has been convicted of a breach of a FMPO, that person cannot be punished subsequently for contempt in relation to the same conduct, and vice versa.
- Subss 120(3) to 120(7) make provision which is consequential on the insertion into the Family Law Act 1996 of new s63CA. Subs 120(3) amends s63E of the Family Law Act 1996 to enable the court, as an alternative to making a FMPO, to accept an undertaking (a promise given to the court to do or not to do certain things) from the respondent. But a court may not accept an undertaking where it appears to the court that the respondent has used or threatened violence against the person to be protected and it is necessary for that person's protection to make the order so that breach may be punishable as an offence.
- Subs 120 (4) amends s63J (2) of the Family Law Act 1996, which refers to "the order", to make it clear that it is a FMPO that is being referred to.
- Subs 120(5) repeals various provisions which relate to the attachment of a power of arrest to a FMPO and to arrest pursuant to such a power. Those provisions are no longer required because, as with non-molestation orders when the offence of breach of the order was introduced, the respondent may be arrested for breach without the need for a power of arrest to be attached to the order.
- Subs 120(6) makes transitional provision, so that the changes only apply in relation to conduct occurring on or after the day on which the s comes into force. Pre-commencement breach of a FMPO will accordingly not retrospectively be made an offence; but post-commencement breach of a FMPO will be an offence (even if the order was made before commencement).
- Since 2010, the CPS identifies and flags all cases of HBV and FM. It is important that these cases are identified and flagged at the beginning so that issues are identified and the case is managed properly. Therefore this guidance must also be read in conjunction with the Guidance on Identifying and Flagging HBV and FM.
- With the introduction of the FM offence and criminalisation of FMPO, prosecutors should continue to identify and flag these cases. The above guidance has been revised and now includes two new offences as the following:
The flag should be applied to any case where:
- Offences under s121 of the Anti-Social Behaviour, Crime and Policing Act 2014 are considered pre-charge or are charged; and
- A breach of a FMPO - S120 of the Anti-Social Behaviour, Crime and Policing Act 2014 amended the Family Law Act 1996 and inserted a specific offence , namely section 63CA FLA 1996.
The flag should be applied from the onset of the case; and the flag will remain in place even if those charges are subsequently amended or dropped. If a case commences under a different offence but is then changed to a FM charge, the case should be flagged at that stage.
In addition, the flag should also be applied where any offence of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) that has been carried out in the context of a FM, either:
- to coerce a party/parties into marrying without their consent, which would be prosecuted under the specific offence committed, e.g. harassment, kidnap, threats to kill; or
- after a FM without the consent of one or both parties and where duress is a factor, which would be prosecuted under the specific offence e.g. rape, sexual assault
The CPS also flags any criminal offence of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional, as in the domestic violence definition) committed as honour based crime.
Cases will be prosecuted under the specific offence committed e.g. common assault, inflicting Grievous Bodily Harm, stalking and harassment, kidnap, rape, threats to kill and murder. These crimes should be identified as "honour crimes" on CMS as well as by their named offence(s).
- When reviewing a case, there are a number of points which need to be considered so that there is a strong case from the outset. For example, exploring evidence from other sources, negating a defendants' credibility and supporting a victim through special measures should always be considered. Prosecutors should refer to the Aide-memoire on HBV and FM which is attached at Annex A.
- Prosecutors should note that a number of challenges may arise with regard to victim confidence, witness corroboration and the familial setting of most such allegations, as well as jurisdiction as some cases may have an international dimension. A false crime may be alleged by members of the family for the police to expend resources locating the victim. This could result in the victim being delivered and returned to the environment from which they had escaped. The investigation will need to maintain a balance between seeking to secure the support of the wider communities whilst at the same time securing the safety of the victim. The victim's safety is however paramount and their views should be sought on this engagement.
- Prosecutors may wish to refer to the NPCC Honour Based Abuse Strategy 2015 - 2018 which outlines the investigation of these cases.
- Prosecutors should work closely with the police and other agencies to ensure that the best evidence is gathered and presented to the court. A strong, coordinated prosecution team is required to proactively build and manage a case. Consider asking the following questions:
- Has a risk assessment of the victim been carried out by the police?
- Is the victim likely to give evidence? Victims are often reluctant to make a statement or, if they do, often retract because of family and cultural pressure.
- Is the victim willing to testify at the trial? A victim may report a crime but a decision to testify against family members will not only take courage but will mean the victim will deal with conflicting emotions.
- What form of evidence is available from the victim? If an ABE Video is available, additional information from the interview process will enable a risk assessment to be conducted as to the risk to any other siblings.
- What other evidence is available? Consider if other family members, close friends, and general practitioner can assist.
- If the victim is at school, is there a change in behaviour or unexplained absences during term time? If so, the school authorities should be contacted.
- Are there any related incidents which may not be reported or reported but the victim withdraws support? Before a FM takes place, there may be a pattern of offences such as threats to kill, common assault, false imprisonment. Consider if there is evidence for an application for bad character evidence.
- The police should be asked to look at the family history, sibling's education, including if they have been taken out of school, tradition around marriage, views on honour, etc.
- Prosecutors should be aware that where there is a young victim of a FM or HBV, the local authority or social services are likely to have material or information which might be relevant to the prosecution case. In such cases, if the material or information might reasonably be considered capable of undermining the prosecution case or of assisting the defence, prosecutors are asked to take steps they regard as appropriate to obtain it. Good practice is to request the material and if that fails, apply to the Court. For further guidance see A Protocol between the CPS, Police and Local Authorities in the exchange of information in the investigation and prosecution of child abuse cases.
- A prosecution can be supported by the provision of expert evidence from those who have an understanding not only of honour based crimes and FM, but specifically of the communities within which they commonly occur. Expert evidence can assist juries and magistrates' in areas with which they are not familiar.
- Expert evidence may be necessary as rebuttal evidence when defences are raised attempting to justify the commission of the offence in the name of honour or as a respectable cultural practice.
- Prosecutors should refer to the CPS Guidance for Expert Witnesses booklet for full information regarding the duties and obligations of all expert witnesses. Where appropriate, experts may need to be referred to the self-certification guidance at the back of the booklet.
- Prosecutors may wish to make contact with the Forced Marriage Unit and the voluntary sector (particularly the specialist women's organisations) to identify experts. The need to access expertise when developing an investigation, prosecution, and ensuring juries receive this information is reliable and admissible forms, cannot be over-emphasised.
- Where there is evidence of a FM, prosecutors should consider charging the new offence of FM.
- If a case involves only one offence, namely FM, then that charge should be selected. Where there is evidence of the defendant committing more than one offence, for example, a victim who is kidnapped, imprisoned and forced to marry against his/her will, it may be appropriate for prosecutors to consider selecting all three charges so that this reflects:
- the seriousness and extent of the offending supported by the evidence;
- gives the court adequate powers to sentence and impose appropriate post-conviction orders; and
- enables the case to be presented in a clear and simple way.
- Prosecutors should note that s121 of the Anti-Social Behaviour, Crime and Policing Act 2014 is not retrospective. This means that the new offence of FM cannot be used prior to the commencement date but other offences as outlined above should be considered.
- The CPS has a number of HBV and FM specialists who can be contacted for advice. An up to date list is maintained by the CPS Violence against Women and Girls Strategy Team. Areas should charge complex cases involving HBV and FM. They are only suitable for CPSD where they require an emergency Threshold Test Decision.
- Where there is sufficient evidence in cases of HBV and FM to provide a realistic prospect of conviction, it will usually be in the public interest to proceed. Prosecutors should bear in mind that it will take courage for victims of FM to report against their families. A prosecution of a FM case will send the right message to victims that the CPS takes such cases seriously.
- When considering a FM or HBV case, the following issues will assist in understanding the full background:
- Motives prompting FM
- Relationships with family and community
- Engaging with the FM Unit
- Keeping the victim informed
- Safety and support of victims and witnesses
- Police support and safety for victims and witnesses
- Issues relating to the age of the defendant
- Impact of bereavement
- Children and young people
- For further details see Annex B.
- There is detailed statutory multi-agency guidance to supplement statutory guidance - "The Right to Choose" (issued under s63Q (1) of the Family Law Act 1996). This guidance provides advice and support to frontline practitioners, including police officers who deal with such cases. For further information see Annex C.
- There are a number of national organisations that are able to offer support to victims and professionals dealing with cases of FM/HBV offering helpline, face to face and survivor support. Prosecutors and Witness Care Units need to know what support agencies are available within their local area, nationally and internationally. They are extremely well placed to advise prosecutors on the steps that need to be taken either to elicit information, to support an investigation and prosecution, to encourage others to come forward, to provide support to victims and witnesses and provide expert evidence.
- See Annex D for a list of support organisations.
- Victims with an insecure immigration status are particularly vulnerable as their rights to settlement or public funds, such as social security benefits and public housing, may be limited. They may be reluctant to come forward to seek help as they may fear deportation and/or destitution. Some stay in, or return to, abusive relationships, as they fear removal to their country of origin and the risk of further abuse, harassment and acts of violence. In some cultures, separated or divorce women are ostracised and harassed for bringing shame and dishonour on their families and communities.
- In some circumstances, victims may be allowed to remain in the UK if they can show they have experienced domestic violence in a relationship with a British or settled partner or because they fear gender-related persecution in their country of origin. For further information see Annex E.
- There are a number of civil legal remedies specifically aimed at protecting children. Although they are civil remedies, prosecutors may find it useful when building cases and should seek information from the police if appropriate. They include both civil and family orders that can be made to protect those threatened with, or already in, a FM. Some require the police or local authority to take action whilst others require the victim to seek an order on their own behalf. For further guidance see Annex F.
Aide-memoire on charging in Honour Based Violence cases including Forced Marriage
This aide-mmoire has been prepared to assist prosecutors particularly when making charging decisions in cases of Honour Based Violence (HBV) and Forced Marriage (FM) and in understanding the relationship between the stages of the tests in the Code for Crown Prosecutors and the CPS Policy for Prosecuting Cases of Domestic Violence (which includes HBV and FM within its remit).
Relationship between the Code and domestic violence policy.
The domestic violence policy statement and legal guidance for HBV and FM should always be read in conjunction with the Code. These documents support and underpin the Code by providing further guidance. These should never be interpreted in such a way that the Code test is diluted or supplanted.
Points to consider
Definitions of HBV and FM and charging considerations:
- There are no specific offences of forced marriage or honour crimes. Forced marriage and honour crimes are umbrella terms to encompass composite offences already covered by existing legislation, for which there is already guidance. Both are a violation of human rights and may be a form of domestic and/or sexual violence.
- The definition of honour crimes we use is the cross government definition namely that Honour-based violence is a crime or incident which has or may have been committed to protect or defend the honour of the family and/or community.
- Similarly we use the the cross-government definition of forced marriage: A marriage without the consent of one or both parties and where duress is a factor. The Court of Appeal clarified that duress is: whether the mind of the applicant has been overborne, howsoever that was caused.
Building a robust case
- Prosecutors will be well aware of the usual routes that the police follow in order to obtain evidence in relation to the types of crimes that might be motivated by forced marriage and honour. However, prosecutors should be mindful of the challenges which arise given the issues with regard to victim confidence, witness corroboration and familial setting of most such allegations.
- Many of these crimes are extremely well-organised, planned by more than one individual and may have been instigated by others (which include family, extended family and community members). The conspiratorial nature of such crimes requires us to consider whether we need to use the tools that are most effective against organised crime, e.g. covert intelligence techniques, including the use of covert human intelligence. Prosecutors are therefore advised to read the relevant CPS Policy and the appropriate RIPA Guidance.
- Given the organised nature of much of this crime, prosecutors may need to give thought to public appeals for information in an attempt to reassure witnesses that they will be taken seriously.
- Don't assume that a complainant giving evidence in court is the only way to prove the matter. Instead, consider if there is other material that supports the prosecution case but is independent of the complainant, or corroborates the complainant.
- Whilst each case must be considered on its merits, you should routinely ask yourself the following questions:
- Is the victims account corroborated by any other evidence?
- What other evidence can we rely upon apart from the victims account?
- A police officers account?
- A neighbours account?
- Another eye witness statement (for example, from a child)?
- 999 tape (remember to listen to this even if someone else made the call)?
- CCTV or head camera footage?
- Bad character?
- A note of injuries in the police incident report book?
- Evidence of previous incidents including those against other victims?
- Medical evidence?
- Any photos of injuries and the scene?
- Any damage on property noticed by the officer?
- Is there a history of previous incidents?
- Are there any civil orders in place including Forced Marriage Protection Orders and could these provide any evidence to assist in the criminal case?
- Has the defendant breached any criminal or civil orders in the past?
- Do you intend to rely upon expert evidence? If yes, have you fully briefed the expert?
- Make sure you consider all available charges and record full reasons for your decisions. Always comprehensively endorse the MG3 to show the elements you consider.
- If there is an action plan for the police, make sure that it is detailed and prioritised, so that time isnt wasted gathering evidence that doesnt substantially take the case any further.
- Where it isnt necessary to detain a suspect in custody, short periods of pre charge bail may be helpful to ensure the best evidence can be gathered before a prosecution is brought. But remember that the safety of the complainant and any children is a key consideration. Suitable bail conditions, that do not restrict the victim and children, should be imposed to prevent further offending and intimidation of the complainant.
- Find out whether there are any concurrent or imminent public law or private law family proceedings involving the complainant and/or accused. Also, find out whether Social Services has been alerted to the violence or involved with the family.
- Make sure you are aware of available civil proceedings and remedies and how they might affect criminal proceedings.
- Consideration should be given to obtaining expert evidence during both the investigative and the trial stages. Forced marriage and honour crimes tend to fall outside the experience of the average investigator, prosecutor and juror. Expert evidence from those who have an understanding not only of honour crimes and forced marriage, but specifically about the communities within which they most occur, will be of great assistance.
- Try to prevent unnecessary delay and take decisions in a timely manner. But remember to balance the need for expedition with the need for proper investigation.
Evidence by and about the defendant
- Don't focus solely on the behaviour of the victim. Instead, find out details of the defendants previous misconduct, if any, at the earliest opportunity so you can assess whether this evidence could be used as part of your case:
- Does the defendant have any related previous convictions or acquittals?
- What was the defendants conduct and demeanour like when arrested?
- Has the defendant made any admissions?
- Are there any previous domestic violence reports that may not have been pursued to court?
- Is any available bad character evidence admissible?
- Those who participate in these types of crimes, both in this jurisdiction and abroad, are often keen to use the youngest member of the family to carry out any harmful acts. This may be to deflect attention away from those who have conspired in the criminal act. When considering youths, prosecutors will need to give some thought to whether it is necessary to prove the age of the alleged perpetrator as some claim to be under 18 when they are not. There are a number of options available to investigators and prosecutors to give them some confirmation of age.
- Where a person of migrant status has been involved in the commission of the crimes, there have been instances where the identity given is questionable. A variety of enquiries may need to be undertaken by investigators to satisfy themselves as to the identity and immigration status of individual(s) concerned. Prosecutors and investigators can be assisted by enquiries in other jurisdictions either through the mutual legal assistance route or, more informally, through police to police contacts.
- Given the international nature of these crimes, early discussions with the extradition team at CPS Headquarters may assist.
- Explore the credibility of the defendants account as part of the charging consultation:
- How plausible is the defendants account?
- Were there any signs of injury to the defendant upon arrest (see domestic violence guidance on dealing with self-defence and/or counter-allegations)?
- Are there any contradictions in the defendants account?
- Has the defendant made no comment from which an adverse inference can be drawn?
- Remember that in these cases there is often more than one defendant and that preplanning is often features.
Victim participation and support
- These cases involve some of our most vulnerable victims and witnesses who often have the least confidence in criminal justice. They may also need support mechanisms not just during the prosecution process, but throughout the rest of their lives.
- Do all you can to support the victim through the criminal justice process to encourage them to participate in the prosecution and to give their best evidence.
- Has the victim indicated what support s/he needs through the prosecution process (for example, special measures, reporting restrictions)? Has this been reflected in the polices action plan?
- Do you have enough information to ensure that victim care issues can be comprehensively assessed (for example, on the MG2 and MG11 forms)?
- Has an Independent Domestic Violence Advisor or specialist domestic violence support agency made contact with the victim?
- Does the victim have any individual needs such that they require specialist support (for example, cultural or language barriers, alcohol or drug dependency, disability, physical or mental illness)?
- How would the victim feel if forced to face the defendant during trial?
- Has a victim impact statement been taken? Is it up-to-date?
- Some victims and witnesses will require the following, in addition to the usual special measures:
- the full protection afforded by witness protection schemes,
- anonymity, even voice distortion,
- reporting restrictions,
- other special measures in order for them to feel confident and comfortable with giving evidence,
- a multi-agency risk assessment which may need to be on-going after the conclusion of the charging decision and/or the prosecution.
- Make sure that the victims statement includes information about whether s/he supports the prosecution. If the victim indicates that they wish to withdraw the complaint or their support for the prosecution, ask yourself:
- Is there any reason to believe that the victim might have been pressured or frightened into retracting? Some victims may be particularly vulnerable, for example, victims with mental health issues or learning difficulties.
- Has the victim previously retracted a complaint or failed to give evidence in proceedings? If so, why? What was the nature of the previous allegation?
- Has a risk assessment been conducted by the police?
- If the victim resolutely refuses to proceed, have you considered:
- continuing the case without the victim?
- using the hearsay provisions to include the complainants evidence?
- compelling them to attend by use of a witness summons and, if appropriate, a warrant?
- What would be the effect of proceeding or not proceeding with the case without the victim?
- Victims with an insecure immigration status are particularly vulnerable as their rights to settlement or public funds, such as social security benefits and public housing, may be limited. They may be reluctant to come forward to seek help as they may fear deportation and/or destitution. Prosecutors, investigators and witness care units need to know what support agencies are available for victims within their local area, nationally, and internationally.
- Prosecutors should be aware that the difficulties and trauma associated with these crimes can be exacerbated by language difficulties. Language difficulties pose particular barriers in accessing legal, social, medical and support services. Individuals who are victims of honour crimes are not a homogenous group. Their needs may vary and be influenced by a range of cultural barriers, level of education, length of residence, level of English fluency, family and social network and economic independence.
- When selecting interpreters, care must be taken to ensure that they have an understanding of the culture of the linguistic community they are interpreting for. Experience has led us to be concerned about interpreters and translators who are not on the approved list and who may often be part of the family or linked to the group suspected of carrying out the crime. Prosecutors should consult CPS guidance on the use of interpreters.
- Many of the agencies which are active in this area are non-governmental and voluntary agencies. The groups which have particular expertise are specialist black and minority ethnic womens organisations which have a track record in providing services on domestic and sexual violence, forced marriage and honour crimes. Prosecutors must recognise that they are busy. Simply asking them to help you during the normal working day is likely to be insufficient. You are encouraged to be open (with confidentiality agreements in place) and to share progress and obstacles
- You should consider at the earliest stage if a victim would benefit from any ancillary orders on conclusion of the criminal case. In particular, if a victim is in need of further protection from the defendant a restraining order can be a useful way to increase the victims (or any at-risk childrens) safety. Since 30 September 2009 such an order can be made against a defendant convicted of any offence, and, in more limited circumstances, on acquittal.
Further information on Honour Based Violence and Forced Marriage
Motives prompting forced marriage
A number of key motives for those who commit honour based violence and forced marriage that have been identified in the Multi-agency practice guidelines: Handling cases of Forced Marriage (June 2009). For example:
- controlling unwanted behaviour, for example, alcohol and drug use, wearing make-up or behaving in what is perceived to be a "westernised manner";
- preventing "unsuitable" relationships, e.g. outside ethnic/cultural/religious/caste group;
- protecting "family honour" or "izzat";
- responding to peer group or family pressure;
- attempting to strengthen family links;
- achieving financial gain;
- ensuring land, property and wealth remain within the family;
- protecting perceived cultural ideals;
Prosecutors should bear in mind that whilst it is important to have an understanding of the motives that drive parents to force their children to marry, these motives should not be accepted as a defence although it is likely that the defence will raise it in mitigation.
Relationships with family and community
Prosecutors should note that a victim may not report as he/she is likely to be in fear of being ostracised by her own immediate and extended family or because he/she may fear dishonouring the family by reporting. In some instances reporting a crime may trigger/cause for further acts of harassment or violence. This violence may be committed by or against members of an extended family, social or community network or the wider community.
Engaging with the Forced Marriage Unit
The Forced Marriage Unit (FMU) is a joint Foreign & Commonwealth Office and Home Office Unit. The Unit also works in partnership with community organisations and voluntary organisations to tackle forced marriage. The FMU has a public helpline that provides confidential advice and support to victims, and to practitioners handling cases of forced marriage.
The FMU welcomes enquiries from frontline practitioners handling cases of forced marriage at any stage in a case. It can offer information and advice on the range of tools available to combat forced marriage, including: legal remedies, overseas assistance and how to approach victims. Prosecutors are encouraged to contact the FMU as their expertise in such cases can assist us with our cases.
To contact the FMU: www.fco.gov.uk/forcedmarriage
Keeping the victim informed
A victim is entitled to:
- the provision of accurate and up-to-date information on how the case is progressing.
- information on whether the defendant is granted bail or a change in bail conditions.
- the taking of a Victim Personal Statement.
For further details, see our guidance on Victims and Witnesses.
Safety and support of victims and witnesses
Support and careful consideration of any special measures requirements are all important factors for the CPS to consider in light of the considerable pressures a victim faces when taking a stance against family members. In addition to the special measures as outlined in our Guidance on Special Measures and support from Witness Care Units, some witnesses may require the full protection afforded by witness protection schemes, anonymity, and voice distortion.
Reasonable adjustments particularly suitable for victims and witnesses with learning disabilities may require arrangements which are tailor made for example staying seated while giving evidence and during cross examination or allowing a supporter or carer to accompany the person at all times, including to stand alongside the witness box, where possible. For further information, please consult the legal guidance on Special Measures.
Victims who suffer from learning or physical disabilities may be subjected to a forced marriage and honour crimes. Some, it would appear, are used by the offenders for immigration purposes to facilitate entry to the United Kingdom of an individual for marriage. Prosecutors should refer to our legal guidance on Disability Hate Crime and Immigration. Additionally, the FMU specific guidance on Forced Marriage Multi Agency Practice Guidelines provides further guidance
Police support and safety for victims and witnesses
The police senior investigating officer (SIO) in an honour based violence case has responsibility and accountability for ensuring that effective risk assessment, identification and management processes have been undertaken. In short, this means ensuring that a risk management plan, with proportionate and effective control measures, has been developed.
The police and/or prosecution should ensure that abuse, regardless of the cultural or religious context, is actively investigated and prosecuted. There may also be pressure on the victim to withdraw their allegations and reconcile with the family through mediation via community elders or religious courts/arbitration. These 'alternative dispute resolution' community based mechanisms should not be supported. They are dangerous as they return victims to abusive situations at home. The victims should be encouraged and supported to use civil and criminal justice remedies instead to maximise their protection.
The difficulties and trauma associated with honour based violence and forced marriage are exacerbated by language difficulties. Victims may be reluctant to report a crime because they may feel they will not be believed. Interpreters and translators who are not on the approved list may often be part of the family, community, or linked to the group suspected of carrying out the crime. Interpreters must be independent, not from within the victim's locality and have an understanding of the culture of the linguistic community they are interpreting for. Prosecutors should refer to the CPS guidance for use of Interpreters.
Issues relating to the age of the defendant
Prosecutors should note that those who perpetrate these types of crimes both in this jurisdiction and abroad often use the youngest member of the family to carry out harmful acts. This may be to attempt to deflect attention away from those who have conspired in the criminal act. Prosecutors need to consider whether it is necessary to prove the age of the defendant. In some cases, defendants have sought to prove that they are under 18 when they are not. In order to obtain confirmation of a person's age, enquiries in other jurisdictions either through the mutual legal assistance route or more informally through police-to-police contacts should be considered.
Social identity and diversity
Sensitivity is required in understanding how a victim's social identity may have an impact on her/his perception of violence, the right to seek help and the availability of appropriate support. The diversity of victims' backgrounds also needs bearing in mind. Each victim's individual experiences of violence will differ, and some victims may encounter additional barriers to accessing justice. For example, a young woman forced into marriage may find it difficult to report domestic violence because she fears being misunderstood, not believed or not taken seriously because of her age.
Impact of bereavement
Bereavement within a family can be a factor that increases the risk of someone being forced into marriage. Occasionally, when a parent dies, particularly the father, the remaining parent may feel there is more of an urgency to ensure that the children are married.
A similar situation may arise within single parent households or when a step-parent moves in with the family. Sometimes, when an older child (particularly a daughter) refuses to marry, the younger female siblings are forced to marry in order to protect the family honour or to fulfil the original contract.
A refusal to marry may also lead to the perpetration of other forms of honour based violence on other siblings.
Isolation is one of the biggest factors facing those trapped or under threat of a forced marriage. Only rarely will an individual disclose fear of forced marriage as victims understand the risks associated with disclosing to agencies that can be seen by their families as a further cause of dishonour. Therefore, they will often come to the attention of practitioners for behaviour consistent with distress rather than for the problem that is at the crux of the matter, which may impact on evidence gathering.
Children and young people
Young people forced to marry are frequently withdrawn from education, restricting their educational and personal development. They may feel unable to go against the wishes of their parents and be threatened with disownment if they do. Forced marriage can be a form of child abuse and should be treated as such. Many victims of reported honour based violence and forced marriage in the UK are under 18 years old. As with adults, honour based violence manifests itself in a diverse range of ways with children and young people - including forced marriage, rape, physical assaults, kidnap, threats of violence (including murder), female genital mutilation (FGM) or witnessing violence directed towards a sibling or other family member.
Guidelines for Police Offices Multi-Agency Practice Guidelines: Handling Cases of Forced Marriage
How Police Officers can make a difference
Police have a number of responsibilities in relation to forced marriage. These include, protecting victims, investigating any crimes associated with forcing someone to marry and assisting the prosecution as well as supporting the witnesses.
In line with other publications for police on domestic abuse, this chapter focuses mainly on womens needs. This is because 85% of those seeking help concerning forced marriage are women and the consequences for women are different than those for men. Women trapped in a forced marriage often experience violence, rape, forced pregnancy and forced childbearing. Many girls and young women are withdrawn from education early. Some are taken and left abroad for extended periods, which isolates them from help and support this limits their choices so that often they go through with the marriage as the only option. Their interrupted education limits their career choices. Even if women manage to find work, however basic, they may be prevented from taking the job or their earnings may be taken from them. This leads to economic dependence, which makes the possibility of leaving the situation even more difficult. Some may be unable to leave the house unescorted living virtually under house arrest.
Although this chapter focuses on women, much of the guidance applies to men facing forced marriage and men should be given the same assistance and respect when they seek help. Men may find it more difficult to admit to being forced into marriage and therefore, may be less likely to seek help.
To gain the trust of the person, police must have a good understanding of the issues surrounding forced marriage and the steps that they can take in order to protect a victim. They need to be aware that people living within a forced marriage, or those under threat of one, may face significant harm if their families become aware that they have sought assistance from an agency whether it is police, social care or a voluntary or community-based organisation. The persons safety must come first. In many cases, it may not be in their best interest to remain with the family or even in the immediate vicinity. For these reasons, cases of forced marriage, actual or suspected, should only be handled by an officer who has been nominated by his or her police force as being qualified by both relevant experience and specialist training to deal with cases of forced marriage.
What to do when someone fears they may be forced to marry
First steps in all cases:
- See them immediately in a secure and private place where the conversation cannot be overheard
- See them on their own even if they attend with others
- Explain all the options to them
- Recognise and respect their wishes
- Perform a risk assessment
- Contact, as soon as possible, a trained specialist who has responsibility for forced marriage
- If the young person is under 18 years of age, refer them to the designated person with responsibility for safeguarding children and activate local safeguarding procedures
- If the person is an adult with support needs, refer them to the person with responsibility for safeguarding vulnerable adults
- Reassure them about confidentiality i.e. practitioners will not inform their family
- Establish a way of contacting them discreetly in the future
- Obtain full details to pass on to the trained specialist
- Consider the need for immediate protection and placement away from the family.
- Send them away
- Approach members of their family or the community unless they expressly ask you to do so
- Share information with anyone without their express consent (section 3.3 and 3.7)
- Breach confidentiality
- Attempt to be a mediator
- Give them, where possible, the choice of the ethnicity and gender of the specialist who deals with their case
- Inform them of their right to seek legal advice and representation
- If necessary, record any injuries and arrange a medical examination
- Give them personal safety advice
- Develop a safety plan in case they are seen i.e. prepare another reason why you are meeting
- Establish if there is a family history of forced marriage, e.g. siblings forced to marry. Other indicators may include domestic violence, self-harm, family disputes, unreasonable restrictions (e.g. withdrawal from education or house arrest) or missing persons within the family
- Advise them not to travel overseas. Discuss the difficulties they may face
- Identify any potential criminal offences and refer to CSPS
- Give them advice on what service or support they should expect and from whom
- Ensure that they have the contact details for the trained specialist
- Maintain a full record of the decisions made and the reason for those decisions
- Information from case files and database files should be kept strictly confidential and preferably be restricted to named members of staff only
- Refer them, with their consent, to appropriate local and national support groups, counselling services and womens groups that have a history of working with survivors of domestic abuse and forced marriage
When referring a case of forced marriage to other organisations, ensure they are capable of handling the case appropriately. If in doubt, approach established womens groups who have a history of working with survivors of domestic abuse and forced marriage and ask these groups to refer the person to reputable agencies. Circumstances may be more complex if the person
is lesbian, gay, bisexual or transgender.
British Embassies and High Commissions can only help British nationals or, in certain circumstances EU or Commonwealth nationals. This means that if a non-British national leaves the UK to be forced into marriage overseas, the British Embassy or High Commission will not be able to assist them. If in doubt, ask the Forced Marriage Unit for advice.
- Collect as much of the information as possible
- Discuss the case with the Forced Marriage Unit
- Refer the victim, with their consent, to appropriate local and national support groups, counselling services and womens groups that have a history of working with survivors of domestic abuse and forced marriage
- Consider whether a communication specialist is needed if the victim is deaf, visually impaired or has earning disabilities
- Check police and social services records for past referrals of family members including siblings e.g. domestic abuse or missing persons within the family.
- Obtain details of any threats, abuse or hostile actions against them
- Create a restricted entry in the force intelligence system and submit a crime report if applicable
- Explain the options available to them
- If foreign travel with the family becomes unavoidable, take the precautions
What to do when a third party reports that someone has been taken overseas for the purpose of a forced marriage.
Sometimes a person may be taken overseas on the pretext of a family holiday, the wedding of a relative or the illness of a grandparent. On arrival, their documents and passports may be taken away from them. Some even report their parents drugging them. In these cases, it may be a concerned friend, relative, partner or agency that reports them missing. These cases may initially be reported to the Forced Marriage Unit, social care, police, education or a voluntary group. As with all cases of forced marriage, confidentiality and discretion are vitally important. It is not advisable immediately to contact an overseas police service or organisation to make enquiries. Risks may arise if police or organisations overseas are contacted directly. If, through police actions, the family becomes aware that enquiries are being made, they may move the victim to another location or expedite the forced marriage.
- Collect as much information as possible as set out above
- Discuss the case with the Forced Marriage Unit
- Refer to the Child Protection Officer, if the person is under 18 years
- Check existing missing persons reports
- Obtain details of, and maintain contact with, the third party in case the person contacts them whilst overseas or on their return
- Consider asking an Education Welfare Officer to make careful enquiries
- Use existing national and local protocols for interagency liaison
Reassure the third party that if the person being held overseas wishes to return to the UK (if they are a British national), the Foreign & Commonwealth Office can try to repatriate them as soon as possible. The Foreign and Commonwealth Office is obliged to ask the individual, the third party or trusted friends to fund the cost of repatriation. However, this should never delay the process of getting the individual to safety. Police should be extremely careful not to disclose information to the overseas police or any other overseas organisation that could place the person in further danger e.g. disclosure about previous/current boyfriends or partners in the UK.
There may be occasions when a person is overseas and the Forced Marriage Unit ask the police to visit the family in the UK to request that the family overseas present the person at the nearest British Embassy or High Commission (if they are a British national). In these situations, the family may suggest that the police officer speaks to the person on the telephone. If this occurs, the officer should refuse to speak on the telephone and insist that the person is presented at the British Embassy or High Commission. There have been occasions when individuals have not been able to talk freely over the telephone or a different person has spoken to the officer.
- Go directly to the persons family, friends or those with influence within the community, as this will alert them to the enquiries and may place them in further danger. (Note: There may be exceptional circumstances when the Forced Marriage Unit asks the police to visit the family)
- Make direct contact with the British Embassy, High Commission or overseas police without first liaising with the Forced Marriage Unit
- Speak to the person on the telephone in order to find out if they are being held against their will. The family may be present threatening them or it may be a different person speaking on the telephone.
- Ascertain if anyone else is aware of the situation and establish whether enquiries have already been made. Is there evidence to support forced marriage and other abuses?
- Dissuade the third party and other agencies involved in the case from making enquiries and taking action independently of the police.
- Find and document any evidence to confirm the threat of forced marriage and any related criminal offences.
- If the third party needs support, refer them to an organisation with a history of assisting in cases of forced marriage and domestic abuse
What to do when someone has already been forced to marry
Many cases of forced marriage come to light when a person (particularly a woman) is reported missing or there are allegations of abuse and domestic violence but some cases are brought to the attention of the police or social care when a victim is forced to act as a sponsor for their spouses immigration to the UK. They are frequently reluctant to tell the immigration service that it was a forced marriage because of threats and fear of reprisals from the family. A person whose application to enter the UK as a spouse is refused has a right to know the reasons why - and the right to appeal against the decision. This can place the person in a difficult position.
Although someone may be tempted to prevent a successful visa application for their spouse, in reality, it is not possible to do this without all parties concerned being aware of their reason for not wishing to sponsor their spouses visa application. Spouses forced into marriage may suffer years of
domestic violence, but feel unable to leave due to fear of losing their children, lack of family support, economic pressures and other social circumstances.
The fact that they were forced to marry may only become apparent years after the marriage has taken place. In all cases, the police officer needs to discuss the range of options available to the person and the possible consequences of their chosen course of action
List of Support Agencies
0800 5999 247
The Honour Network helpline providing emotional and practical support and advice for victims and survivors (male & Female) of forced marriage and/or honour based violence and abuse. It provides advice and support to potential victims, victims in crisis and professional agencies.
02920 496 920
Henna Foundation operates a "one stop" service that works to meet and advance the needs, concerns and aspirations of Asian and Muslim children and families. It also assists voluntary, statutory services and Government agencies to improve engagement and delivery of mainstream services. Henna Foundation hosts a National (multi-disciplinary) On-line Forced Marriage & HBV Directory and Knowledge Centre.
BAWSO Women's Aid (Wales)
0800 731 8147
This is an all Wales, voluntary organisation. It provides a specialist service to Black and Minority Ethnic (BME) women and children made homeless through a threat of domestic abuse or fleeing domestic abuse in Wales. They have purpose built refuges across Wales. They also provide emotional and practical support for BME women living in social housing. The service is accessible 24 hrs. a day.
Men's Advice Line
0808 801 0327
This service provides a Freephone confidential helpline for all men experiencing domestic violence by a current or ex-partner. This includes all men - in heterosexual or same-sex relationships. The service gives men the chance to talk about what is happening to them and provides them with emotional support and practical advice. The advice line also has information about specialist services that can provide advice on legal, housing, child contact, mental health and other issues.
The Helpline is open Monday to Friday 10am - 1pm and 2pm - 5pm.
Southall Black Sisters (SBS)
020 8571 9595
www.southallblacksisters.org.uk (Open 10:00-17:00)
Southall Black Sisters operates a specialist centre for black and minority women. It provides advice, advocacy and support services to women facing all forms of gender-related violence including domestic violence, sexual violence, FM, honour killings and related issues such as immigration and asylum, health, welfare rights, homelessness and poverty. The front line work is also supported by campaigning, counselling and other activities aimed at helping women assert their human rights, overcome their isolation, build their self-esteem and skills needed to live independently in security and with dignity.
The Halo Project Charity is a national project that will support victims of HBV, FM and FGM by providing appropriate advice and support to victims. We will also work with key partners to provide required interventions and advice necessary for the protection and safety of victims.
0845 607 0133
Freedom or Freedom Charity is a UK-based charity formed to give support to victims of FM, FGM, radicalisation and violence upon women thought to have brought dishonour on their family. We target schools with presentations and sessions directly with students, whilst also offering training and lesson plans for teachers so that they may also aid in raising awareness. We also have a 24/7 helpline and text-line.
British High Commissions and Embassies
Contact the Forced Marriage Unit if you require further details of any other British High Commission
BANGLADESH - Dhaka
British High Commission
United Nations Road
Postal Address: PO Box 6079, Dhaka 1212
Telephone: (00) (880) (2) 8822705-9
Facsimile: (00) (880) (2) 8823437
Office Hours (GMT): Sun to Wed 03.00-10.15
Local Time Sun-Wed 08.00-15.15
BANGLADESH - Sylhet
British High Commission
Telephone: (00) (880) (821) 724694
Facsimilie: (00) (880) (021) 720070
Office Hours (GMT): Sun to Wed 03.00-10.15
Local Time Sun - Wed 08.00-15.15
ETHIOPIA - Addis Ababa
Postal address: PO Box 858, Addis Ababa
Telephone:(00) (251) (11) 6610588
Facsimile:(00) (251) (11) 6614154
Consular facsimile: (00) (251) (11) 6414154
Office hours (GMT): Mon - Thurs 05.00-3.00
Local time: Mon - Thurs 08.00 -16.30
Fri 08.00 - 13.00
INDIA - New Delhi
British High Commission
New Delhi 110021
Telephone: (00) (91) (11) 2687 2161
Facsimile: (00) (91) (11) 2 6116094
Office Hours (GMT) Mon-Fri 03.30 - 07.30
08.30 - 11.30
Local Time 09.00-13.00
INDIA - Mumbai (Bombay)
Office of the British Deputy High Commissioner
C/32 G Block
Bandra Kurla Complex (Opposite Dena Bank)
Telephone: (00) (91) (22) 66502222
Facsimile: (00) (91) (22) 66502324
Office Hours (GMT) Mon-Thurs 02.30-10.30
Fri 02.30-07.30 and 08.30-10.30
Local Time Mon-Thurs 08.00-16.00
Fri 08.00-13.00 and 14.00-16.00
British High Commission
PO Box 1122
Telephone: (00) (92) (51) 2012000
Facsimile: (00) (92) (51) 2012019
Office Hours (GMT) Mon-Thurs 03.00-11.15
Local Time Mon-Thurs 08.00-16.15
British Deputy High Commission
Telephone: (00) (92) (21) 5827000
Facsimile: (00) (92) (21) 5827012
Office Hours (GMT) Mon - Thurs 03.00-11.15
Local Time Mon - Thurs 08.00-16.15
British Consulate General
Mesrutiyet Caddesi No 34
Tepebasi Beyoglu 34435
Telephone: (00) (90) (212) 334 6400
Facsimile: (00) (90) (212) 315 6401
Consular facsimile: (00) (90) (212) 334 6407
Office hours (GMT): Mon - Fri 06.30-11.00
Local time: 08.30-13.00
YEMEN - Sana'a
938 Thaher Himiyar Street
East Ring Road (opposite
PO Box 1287
Telephone: (00) (967) 1308 100
Facsimile: (00) (967) 1302454
Office hours (GMT): Sat-Wed 04.30-11.30
Local time: 07.30-14.30
Information on the Immigration Issues that some Victims of Forced Marriage or Honour Based Crime may experience.
Domestic Violence by a British Citizen or Person with Permanent Settlement
Victims with an insecure immigration status may be entitled to remain in the UK if they have experienced domestic violence and they enter or remain in the country on the basis of marriage/relationship/civil partnership to a British citizen or a partner with permanent settlement (the sponsor), subject to a twoyear probationary period.
A probationary period is the period for which the foreign spouse/partner has limited to leave to remain in the UK which is dependant on their marriage/relationship being subsisting. Currently, the probationary period is two years, at the end of which the foreign spouse can obtain indefinite leave to remain in the UK with the support of their British spouse/partner. If the marriage/relationship breaks down during the probationary period, the foreign spouse/partner is normally required to leave the UK and return to their country of origin. The domestic violence rules enables victims to stay in the UK indefinitely if the marriage/relationship breaks down due to domestic violence within the probationary period and they meet the evidential criteria as set out in the immigration rules.
They will have to show that the marriage/relationship broke down due to domestic violence within the two year probation period and provide the requisite evidence. This provision applies even if the abuse is from persons other than the sponsor and it leads to the breakdown of the marriage or relationship, for example, where the sponsor fails to protect the victim from abuse by members of the sponsors extended family.
Evidence Required: The following evidence is required to show domestic violence under the Immigration Rules:
- A relevant court conviction against the sponsor; or
- Full details of a relevant police caution issued against the sponsor.
If the victim is unable to provide any of the above, the following formal documentary evidence will be considered:
- An injunction, non-molestation order or other protection order made against the sponsor (other than an ex-parte or interim order);
- A letter from Chair of a Multi-Agency Risk Assessment Conference (MARAC).
If none of the above are available, evidence from the following non-exhaustive list will be considered:
- A medical report from a hospital doctor confirming injuries consistent with being a victim of domestic violence; and/or a letter from a General Medical Council registered family doctor who has examined the victim and is satisfied that their injuries are consistent with being a victim of domestic violence;
- An undertaking given to a court that the abuser will not approach the victim;
- A police report confirming attendance at the victims home as a result of domestic violence;
- A letter from social care services confirming its involvement in connection with domestic violence; or
- A letter of support or a report from womens refuge or domestic violence support organisation.
Applicants are required to provide as many pieces of evidence as possible to prove they were the victim of domestic violence. Providing only one piece of evidence from those listed in section C would not usually be deemed to have proven the case.
Applications from overstayers, or those who apply to remain after the two year probation has ended, will be considered sympathetically. In making the application, it is important to set out the reasons for the delay.
Domestic Violence by European Economic Area Nationals
A similar domestic violence rule also benefits non-European Economic Area (EEA) nationals who enter or stay in the UK as a result of marriage or partnership with an EEA national (as opposed to a British National). The marriage/partnership must have lasted for at least three years immediately prior to the divorce/termination of the partnership, both parties must have lived in the UK for at least one year of the marriage/civil partnership, and the EEA national must have been exercising Treaty rights during that time.
Chapter 5 of the Immigration Directorates Instructions at:
In order to qualify for residence, the applicant must provide their passport, evidence of domestic violence (as outlined above) and evidence that they are a worker, self-employed or self- sufficient (including students that are self-sufficient).
If the victim cannot return to their country of origin and wants to remain in the UK, it is essential to report any domestic violence they may have suffered, particularly to the agencies outlined above, where the victim is seeking also assistance.
Asylum, Humanitarian Protection or Discretionary Leave:
Other applications may also be possible for asylum, humanitarian protection or discretionary leave to remain in the country if the victim is escaping forced marriage or other dangers to their or their childrens lives or well-being abroad. When assessing any claims for asylum, the Home Office should take into account any relevant gender issues, including the specific Asylum Policy Instructions under Gender Issues for Asylum claims. All victims can also apply outside the immigration rules for leave to remain on compassionate or exceptional grounds.
For more information you can refer to See Asylum Policy Instructions under Gender Issues for Asylum Claims:
Also see the Immigration Appellate Authoritys Asylum Gender Guidelines:
The victim should make an application to the Home Office before their limited leave to remain or visa expires as this improves their chance of remaining in the UK and protects their rights to appeal.
No Access to Public Funds
Victims with an insecure immigration status may also be prohibited from claiming public funds, which includes most Social Security benefits and housing under the Housing Act 1996. However, note that persons with indefinite leave to remain (ILR), refugees and those with humanitarian protection, discretionary leave to remain or right of abode in the UK, have the same entitlements to public funds as a British citizen. Also, some categories of overseas nationals with no settlement rights may also be entitled. It is therefore best to check entitlement. This prohibition does not apply to public funding (legal aid) for legal help or assistance.
Victims with no recourse to public funds can pursue the following options for housing and financial support:
From December 2009, the Home Office and Eaves Housing for Women are running a three month pilot scheme which gives housing and subsistence costs for up to 40 days for victims of domestic violence eligible to apply under the domestic violence immigration rule. See www.eaves4women.co.uk
Approach an advice and support agency, particularly womens refuges and support services (including those specifically providing for BME women), to obtain information, advice and assistance on safe accommodation and financial support. Contact the National Domestic Violence Helpline for list of agencies Tel 0808 2000 247.
Southall Black Sisters runs a small fund providing direct housing and subsistence cost, subject to availability. See their website www.southallblacksisters.org.uk.
Contact social care services (particularly if the victim is a pregnant woman, is with children or is especially vulnerable due to age, disability or ill health) for help under the Children Act 1989, the National Assistance Act 1948 and other legislation. Local authority support does not count as public funds. If possible, the victim should consult an immigration solicitor before making such an approach for assistance from the local authority as the authority may contact the Home Office to establish the victims status.
Contact a family lawyer to make an application for maintenance for the victim from the sponsor in the Family Courts. However this option may be limited if it is a short marriage, the sponsor has a low income and if there are long delays or problems in obtaining public funding or a court hearing date.
Apply to the Home Office National Asylum Support Services (NASS) if they have claimed asylum and/or made a human rights claim under Article 3 of the European Convention on Human Rights, provided that the applications are being considered as such, or at least acknowledged, by the Home Office.
Civil legal remedies
Children's Act 1989 - Emergency Police Protection
Local Authority Children's Services may approach the police and ask for their assistance in undertaking a joint investigation. Where there is reasonable cause to believe that a child or young person, under the age of 18 years, is at risk of significant harm, a police officer may (with or without the co-operation of the Local Authority Children's Services) remove them from the parent and place them under "police protection" for up to 72 hours (under s.46 Children Act 1989). The police must inform the Local Authority Children's Services and ask them to assist in finding safe and secure accommodation for the child or young person. Local Authority Children's Services should commence child protection enquiries under s.47. The police must inform the Local Authority Children's Services and ask them to assist in finding safe and secure accommodation for the child or young person. Local Authority Children's Services should commence child protection enquiries under s.47.
After 72 hours, the police must release the child or young person. At this point, however, Local Authority Children's Services may apply for an emergency protection order (EPO) if they are still considered that the child is at risk of significant harm. The police have the power to make their own application for an EPO. Local Authority Children's Services should assist the police, if requested to do so, by arranging a placement for the child or young person in a place of safety, taking into account risk management and safety planning - whether this is in local authority accommodation provided by Local Authority Children's Services , on their behalf, or in a refuge.
Care and Supervision Orders
Sometimes an EPO is followed by an application from the local authority for a care order - under s.31 and s.38 Children Act 1989. Without such an application the EPO will lapse and the local authority will no longer have parental responsibility. A court will only make an interim care order or an interim supervision order under s.38 Children Act 1989 if it is satisfied that there are reasonable grounds to believe that the following threshold criteria are met:
- the young person concerned is suffering, or is likely to suffer significant harm; and
- the harm, or likelihood of harm, is attributable to (amongst other things):
It is the court's responsibility to decide whether an order is necessary to protect the young person and what sort of order is the most appropriate. The advantage of a care order over a supervision order is that it allows greater protection to be offered to the young person as the local authority may obtain an order that there be no contact with the family and may conceal the whereabouts of the child if that is necessary to ensure adequate protection.
An EPO is open to challenge by the child or young person's parents or any person with parental responsibility. Once an EPO is made, the local authority shares parental responsibility with the parents but can only exercise parental responsibility so far as required to safeguard or promote the child's welfare. The local authority need not release details of where the child or young person is living if this is necessary to protect the young person. If it is necessary to protect the child or young person, the court should be asked for an order that states there be no contact (or restricted contact) during the period of the EPO. If this is not asked for, there is a presumption of reasonable contact. Local Authority Children's Services have a duty to make child protection enquiries (s.47) when a child or young person living in their area is the subject of an EPO, is in police protection or who they have reasonable cause to suspect is suffering, or is likely to suffer from significant harm - under S.47 Children Act 1989.
Inherent Jurisdiction of the court
There will be cases where a care order is not appropriate, possibly because of the age of the child. Local Authority Children's Services may ask the court to exercise its inherent jurisdiction to protect the child. Any interested party, including the young person themselves, a private individual or the Children and Family Court Advisory Support Service (CAFCASS/CAFCASS CYMRU) legal services can apply to have a young person up to the age of 18 made a ward of court. For the purposes of obtaining protection for a child or young person, there is little difference between wardship and the other orders made in the exercise of the inherent jurisdiction of the High Court. Both types of orders under the inherent jurisdiction are flexible and wide-ranging and an order may be sought where either there is a real risk of a child or young person being forced into marriage or after the marriage has taken place.
Where there is a fear that a child or young person may be taken abroad for the purpose of a forced marriage, an order for the surrender of their passport may be made as well as an order that the child or young person may not leave the jurisdiction without the court's permission. Orders for the immediate return of the child or young person can be obtained. These orders can be enforced on family members or extended family members. The orders are in the form of injunctions with penal notices attached. There have been cases where the court has invoked inherent jurisdiction to protect adults facing forced marriage. In particular, this is relevant for adults with learning or physical disabilities that prevent them from making a free choice, or are incapacitated or disabled from giving or expressing a real and genuine consent.
Applications for Wardship
Once a young person has left the country, there are fewer legal options open to police, Local Authority Children's Services, other agencies or another person to recover the young person and bring them back to the UK. One course of action is to seek the return of the young person to the jurisdiction of England and Wales by making them a ward of court or subject to a Forced Marriage Protection Order.
An application for wardship is made to the High Court Family Division, and may be made by a relative, a friend close to the child or young person, CAFCASS/CAFCASS CYMRU legal services department or any interested party, including a local authority. The High Court has extensive experience of forced marriage cases and of dealing with them quickly. Its orders in the inherent jurisdiction and under wardship have greater influence in foreign states.
An Emergency Family Division Applications Judge is available at 10.30 am and 2 pm on all working days at the Royal Courts of Justice in the Strand, London, to hear without notice applications. Once the Order is obtained, the co-operation of the authorities in the country to which the child or young person has been taken can be sought. Without such co-operation, it may be difficult to locate and return the child or young person.
Tipstaff - Child Abduction Orders (High Court)
In child abduction cases, it may be possible to seek a tipstaff order - this may be a 'seek and locate' order backed by a bench warrant ordering any person with knowledge of the child or young person to give that information to the Tipstaff (who is an officer of the High Court) or his/her deputy or assistants.
The majority of the Tipstaff's work involves taking children into custody and dealing with child abduction.
Related orders may require the alleged abductor to hand his/her passport and other travel documents to the Tipstaff, and order the Tipstaff to take the child and deliver him or her to a designated place.
There may also be a 'port alert' executed by the Tipstaff, to help prevent the child or young person being taken abroad. In the case of children who have been declared a ward of court for example, in cases where the court is acting in loco parentis, the Tipstaff has a role in ensuring that those children are delivered to the locations specified by the court.