So-Called Honour-Based Abuse and Forced Marriage
- Violence against Women and Girls
- Restraining and Ancillary Orders
- Investigation, Risk Assessment and Case Building
- Victims and Witnesses
- Annex A, Civil Legal Remedies
- Annex B, British High Commission and Embassies
- Annex C, List of Specialist Support Agencies
- Annex D, Information on the Immigration Issues that some Victims of Forced Marriage or Honour Based Crime may experience
This guidance provides:
- A general overview on so called honour-based abuse (SCHBA or HBA) and other harmful practices
- specific guidance on the offence of forced marriage (FM) where a person enters into marriage without truly consenting to it, because of coercion, lack of capacity or deception; and
- Guidance on the evidential considerations to be taken account of when reviewing and charging cases of HBA including FM and breast flattening.
These crimes are a violation of human rights and may be a form of domestic and/or sexual violence. There is no justification for abusing the human rights of others.
Experience tells us that HBA and FM are usually perpetrated by the victims families, extended families and members of their community with the aim of protecting or defending the honour of the family or community. Where HBA occurs this can lead to conspiracy between the families, extended families and communities of the perpetrator in order to protect them as opposed to the victim.
Violence against Women and Girls
The Governments commitment to end HBA and FM is embedded in the cross- Government Ending Violence against Women and Girls (VAWG) Strategy: 2016 to 2020. The strategy is underpinned by effective partnership working at both a local and national level.
The VAWG approach recognises that victims of HBA and FM crimes are disproportionately female. The UK government has signed and ratified the United Nations call to all states to prevent and respond to violence against women: The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which provides a universal standard for womens human rights.
However, the CPS is committed to all victims of crimes grouped together as VAWG; and to that end, are inclusive in their approach. All VAWG policies are applied fairly and equitably to all perpetrators and victims of crime irrespective of their gender.
The CPS adopts the following definition of Honour-Based Abuse:
an incident or crime involving violence, threats of violence, intimidation coercion or abuse (including psychological, physical, sexual, financial or emotional abuse) which has or may have been committed to protect or defend the honour of an individual, family and/ or community for alleged or perceived breaches of the family and/or communitys code of behaviour.
There is no statutory definition of HBA.
There is no specific offence of "honour-based crime". It is a term used to encompass various offences that are covered by existing legislation, such as physical abuse (kicking and beating); psychological pressure (strict monitoring, humiliation, threats); forced marriage; abandonment (leaving someone in their country of origin or sending them back there); forced suicide; honour killing (murder). This list is not exhaustive. It is an umbrella term to encompass various offences covered by existing legislation. HBA 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 code of honour.
One such HBA practice is forced marriage. A FM is a marriage conducted without the true consent of one or both parties, either because violence, threats or coercion is a factor, or because the victim cannot consent to be married, or they have been deceived. FM is a specific offence under s121 of the Anti-Social Behaviour, Crime and Policing Act 2014. Prior to the introduction of the offence, prosecutors dealt with FM cases using existing legislation such as false imprisonment, kidnapping and offences of violence or indeed fraud where this was a feature of the offending.
Other forms of HBA include practices performed by perpetrators on victims for cultural or socio-conventional motives which have harmful consequences. Some of these practices include (this list should not, however, be considered as exhaustive): FGM; Breast flattening; and dowry abuse.
Since 2010, the CPS identifies and flags all cases of HBA and FM. It is important that these cases are identified and flagged at the outset 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.
HBA cases will be prosecuted under the specific offence committed e.g. causing grievous bodily harm, stalking, and harassment, kidnap, rape, threats to kill and murder etc. These crimes should be identified as "honour crimes" on CMS as well as by their named offence(s). It is especially important to note the links between HBA and Controlling or Coercive Behaviour.
Other relevant CPS legal guidance might also need to be considered such as:
- CPS Domestic Abuse Guidelines for Prosecutors
- CPS Rape and Sexual Offences legal guidance
- CPS Female Genital Mutilation legal guidance
- CPS Stalking and Harassment legal guidance
- CPSAcid and other corrosive substance attacks legal guidance
It may also be useful to refer to the College of Policings FM and HBA Authorised Professional Practice.
Breast flattening is the painful practice of bringing girls breasts into contact with hard or heated objects (which may vary in nature but may include stones, belts, pestles and heated implements) to suppress or reverse the growth of breasts by destroying the tissue. Breast flattening is often performed, particularly by family members, wishing to protect a girl from the appearance of puberty or being an adult woman in order to avoid any potential sexual interest, early pregnancy or sexual harassment or violence. There are potentially significant physical and psychological consequences and risks related to this practice.
Breast flattening is a form of child abuse. See the CPS legal guidance on Child Abuse. Where a prosecutor is asked to consider an allegation of breast flattening the offences for consideration include child cruelty (contrary to section 1(1) Children and Young Persons Act 1933), causing or allowing a child to suffer serious harm (contrary to section 5 Domestic Violence, Crime and Victims Act 2004); and assault (contrary to sections 47, 20 or 18 of the Offences Against the Person Act 1861). Prosecutors will consider whether it can be proved, on the victims account and/or other evidence, that an assault in the form of breast flattening took place and if so, who participated (either as principal or secondary party) in the breast flattening. Medical evidence should also be obtained to establish the level of injury and therefore the appropriate charge. The fact of an injury can be established with other evidence but medical evidence should assist in understanding the true physical impact of the assault, given the physical and psychological risks.
The evidence that the assault was committed without the consent of the child may be clear. However, in a family context it may be that the victim consented because of a shared belief in the need to undergo the practice, or because the victim agreed to what the family proposed or the family aided and abetted the flattening. Prosecutors should challenge the raising of consent as a possible defence: it is not possible to consent to an assault where the injury caused is more than transient and trifling: R v Brown (Anthony)  1 AC 212. This is subject to strict exceptions of which, it is submitted, breast flattening is not one. Responsible adults who aid and abet a girl, as the victim, in breast flattening should also be considered for investigation and prosecution.
FM is a criminal offence under the Anti-Social Behaviour Crime and Policing Act 2014 (the 2014 Act). Section 121 of the 2014 Act states:
S121(1) - A person commits an offence in England and Wales if he or she
a. uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and
b. believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without 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.
S121(2) In relation to a victim who lacks capacity to consent to marriage, the offence under subsection (1) is capable of being committed by any conduct carried out for the purpose of causing the victim to enter into a marriage (whether or not the conduct amounts to violence, threats or any other form of coercion).
S121(3) -A person commits an offence under the law of England and Wales if he or she
a. practises any form of deception with the intention of causing another person to leave the United Kingdom, and
b. intends the other person to be subjected to conduct outside the United Kingdom that is an offence under subsection (1) or would be an offence under that subsection if the victim were in England or Wales.
S121(4) Marriage means any religious or civil ceremony of marriage (whether or not legally binding).
S121(5) Lacks capacity means lacks capacity within the meaning of the Mental Capacity Act 2005.
S121(6) It is irrelevant whether the conduct mentioned in paragraph (a) of subsection (1) is directed at the victim of the offence under that subsection or another person.
The offence of FM will apply to a person who:
- intentionally forces a person to enter into marriage, believing the person does not consent,
- takes steps to cause a person whom he knows cannot consent to marriage to enter marriage,
- 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.
In relation to a person who cannot consent to marriage, expert evidence should be obtained to deal with the victims capacity at the material time, namely the time at which the suspect took steps to cause the victim to enter into marriage. The expert should be asked whether the victim was unable to make their own decision about entering a marriage or not, because of an impairment of, or a disturbance in the functioning of, the mind or brain. The expert should also address whether the victim is competent to give evidence in criminal proceedings. They will not be if it appears to the Court the expert will provide their own assessment to assist the court that they are unable to understand questions put to them as a witness and give answers to them which can be understood: section 53(3) Youth Justice and Criminal Evidence Act 1999. There may be cases where a suspect claims that consent was indeed forthcoming from the victim, for instance pointing to oral or written communication indicating consent. An expert should consider any such claim in conjunction with their assessment of capacity.
The prosecutor must then consider what the suspect believed or ought to have believed: notwithstanding the suspect is a lay person, what was the evidence from which it can be said that the suspect ought (at least) to have believed that the marriage would have been entered into without free and full consent? What day-to-day functioning and decision-making did the suspect witness the victim engage in, for instance, and did it suggest mental capacity or not? Violence, threats or coercion do not have to be proved for this allegation, simply any conduct carried out for the purpose of causing the victim to enter into a marriage.
The motivation for the offending is not an element of the offence to be proved at the evidential stage of the Code for Crown Prosecutors, but needs careful consideration at the public interest stage. Prosecutors must apply the factors in the Code but should also recognise that some offending may be motivated by financial gain and will plainly be in the public interest to prosecute. Other offending might occur, for instance, in the context of a person who has some, but not full, mental capacity and whose family wish to ensure marriage to a long-term partner and/or so that careis provided by the person who is married to them. Great care and sensitivity should be exercised where the evidence suggests a family acting consistently with the victims wishes prior to the loss of mental capacity and without malign motive.
In relation to all three offences, prosecutors should consider charging this offence in addition to any others for which there is sufficient evidence, for instance fraud or threats to kill (and not accepting pleas to those other offences in return for not proceeding with this offence). The reason is that this offence has a different gravamen: it is a violation of the individual and family for a person to become legally committed as a spouse to a person without true consent, and this should be reflected in sentence alongside other culpable conduct, such as intention to obtain financial gain or offences committed in the course of violence, threats or other coercion.
Extra Territorial Jurisdiction
Sections 121(7) and 121(8) of the 2014 Act make provision for extra-territorial jurisdiction to be taken over both the coercion and deception elements of the FM offence. Any of the prohibited acts contained in Section 121(1) and 121(2) which are undertaken 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. It will also be an offence under domestic law if the prohibited acts are conducted by or against a person habitually resident in England and Wales, but take place in Scotland or Northern Ireland.
Section 121(9) and 121(10) of the 2014 Act sets out the maximum penalties for the specific offences in Section 121(1) and 121(2). On summary conviction the maximum penalty is 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), a fine, or both, and on conviction on indictment the maximum penalty is seven years' imprisonment.
Victims of FM are entitled to lifelong anonymity under section 173 of the Policing and Crime Act 2017.
Breaching a victims anonymity is a criminal offence. A victim can, however, give their written consent to waive anonymity and the judge can vary and lift anonymity where it is considered to be in the interests of justice.
The Government Definition of Domestic Abuse incorporates HBA. The court should review the Sentencing Councils Overarching Principles: Domestic Abuse guidelines when considering what sentence to impose.
This section should be read in conjunction with the Sentencing Overview guidance which provides further detail on prosecutors' obligations regarding unduly lenient sentences and applications for ancillary orders.
Prosecutors' duty to actively assist the court should include reference to the abuse of trust in a domestic setting as an aggravating factor, as well as the vulnerability of complainants. Specific reference should be made to the nature of offending involved, and a particular emphasis on the nature of the relationship between the complainant and perpetrator to assist the court in reaching an informed decision about the most appropriate sentence.
Restraining and Ancillary Orders
Forced Marriage Protection Orders (FMPOs)
A FMPO is a civil law remedy, the aim of which is to provide protection to someone who is at risk of or has already been subjected to a forced marriage without giving their full and free consent. Prosecutors should consider at the early investigative advice stage whether an FMPO should be obtained in respect of the victim or other potential victims.
Section 63A of the Family Law Act 1996 makes provision for FMPOs which are unique to each case and contain legally binding conditions, prohibitions and restrictions aimed at changing the behaviour of a person or persons trying to force someone into marriage. An application for an FMPO can be made by a victim or the person at risk of FM, a relevant third party (a local authority) or any other person with the permission of the court.
A FMPO can be made to protect a victim or a person at risk from a spouse or prospective spouse, family member or anyone involved. Involvement can include aiding, abetting, counselling, procuring, encouraging, or assisting another person to force or attempt to force a person to marry. FMPOs can last for a specified period of time or for an indefinite period i.e. until varied or discharged. The order can relate to conduct either within or outside of England and Wales.
Breach of a FMPO is a criminal offence under Section 63CA, Family Law Act 1996. A person who, without reasonable excuse, does anything that is specifically prohibited by the terms of a FMPO, is guilty of an offence. Breach of a FMPO carries a maximum penalty of five years imprisonment.
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, the breach of a non-molestation order. An individual would, however, only be guilty of a criminal offence, if he or she was aware of the existence of the order at the time of the breach (Section 63CA(2), Family Law Act 1996).
Victims who do not wish to pursue criminal proceedings for breach of a FMPO, have the option to progress the breach as a civil contempt of court matter. However, where a complainant is reluctant to attend court and it is decided that to prove the case it can only continue with the complainant's evidence is necessary, the application of a witness summons may be considered, but only as a last resort, see the Retractions and Withdrawals by Complainant section of this guidance.
Prosecutors should work with the complainant, police and other relevant agencies to ensure that there is a comprehensive understanding of how a restraining order could be enforced practically, before making the application. All prosecutors should have in mind at the time of charge or review, whether a restraining order is appropriate in the event of a conviction or an acquittal.
It should be considered at the earliest stage if a victim would benefit from any other ancillary orders.
Civil Legal remedies
There are several 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 at risk of, a FM, domestic abuse or FGM. 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 A.
Investigation, Risk Assessments and Case Building
A Joint National Police Chiefs Council (NPCC) and CPS HBA and FM investigation and prosecution protocol was developed to enable police and prosecutors to quickly understand the action they must take when a crime is reported to the police and referred to the CPS for a charging decision, ensuring the safety of the victim is at the heart of the process.
Prosecutors may also wish to refer to the NPCC Honour Based Abuse Strategy 2015 - 2018 and the multi-agency practice guidelines to supplement statutory guidance. The practice guidelines provide advice and support to frontline practitioners, including police officers who deal with such cases.
Both the police and CPS have local specialist HBA and FM leads whom they can consult for advice and guidance on the handling of these cases.
Prosecutors should note that several challenges may arise with regarding 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 to expend police resources in 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 community whilst at the same time securing the safety of the victim. The victim's safety is paramount and their views should be sought on this engagement.
Prosecutors should be aware that where there is a young victim of a HBA or FM offence, the local authority or social services may have material or information which could be relevant to the prosecution case. In such cases, if the material or information could reasonably be considered capable of undermining the prosecution case or of assisting the defence, prosecutors are required to take necessary steps 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.
An effective strategy in the prosecution of these cases needs to involve scrutiny of the behaviour and actions of the suspect/defendant. This approach can:
- Help ensure the effective consideration of the overall allegation within the wider context of the relationship;
- Inform and support investigators to consider all available evidence; and
- Lead to the swift and accurate assessment of risk which, in turn, can help to ensure a suitable multi-agency approach to increasing the safety of the victim.
The range of offending behaviour, with particular reference to other crimes, needs to be considered, such as enforced sexual activity including rape. Ultimately, prosecutors should be alert to the fact that an offender will follow a course of conduct which is used to control, coerce, dominate or exploit a complainant.
Identification of the triggers for abuse will assist in understanding the context of the offending. These issues should be considered as risk factors, rather than as causal links to the offending behaviour, and will assist prosecutors in their consideration of the public interest stage of the Full Code Test. This will also assist when considering factors to be taken into account for bail applications and/or terms for restraining orders at later stages of the prosecution process.
Please refer to the joint protocol for further information.
Retractions and Withdrawals by Complainants
It is possible that a complainant may ask the police not to proceed any further with a prosecution case and say they no longer wish to give evidence.
The decision to compel a complainant must not be taken lightly. It should be based on the specific facts of the case, and in particular, the needs and requirements of the complainant.
Where a complainant is reluctant to attend court and it is decided the case can only continue with the complainant's evidence, an application for a witness summons may be considered. This should not be done as a matter of course but should be considered when all other options have been explored and discounted. Please refer to the joint protocol and following section of the Domestic Abuse Guidelines for Prosecutors for further information.
Given the international nature of these crimes, early discussions with the extradition team at CPS Headquarters may assist.
Where an offence has been carried out overseas, prosecutors should request the police to investigate and obtain evidence from that country. Evidence may be obtained from travel or flight records, or the Home Office Border Force. Evidence may be obtained from the ways in which criminality needs to be facilitated, not just from the internet but those who can confirm what arrangements had been made abroad.
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 joint Home Office- Foreign and Commonwealth Office Forced Marriage Unit (https://www.gov.uk/guidance/forced-marriage), social care, police, education or a voluntary group. As with all cases of FM, 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 FM.
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.
A list of British Embassies and High Commissions can be found at Annex B.
A prosecution can be supported by the provision of expert evidence from those who have an understanding not only of HBA 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. Prosecutors should familiarise themselves with the guidance on expert evidence.
Prosecutors may wish to make contact with the voluntary sector (particularly the specialist women's organisations) to identify experts. The need to access expertise when developing an investigation or prosecution, and to ensure jurors receive the information in reliable and admissible forms, cannot be over-emphasised. A list of specialist support agencies can be found at Annex C.
Victims and Witnesses
It is important for police and prosecutors to remember that these cases may involve some of our most vulnerable victims and witnesses who may not have confidence in the criminal justice process. Victims often feel a loyalty to their family/community and this might make them particularly reluctant to support a prosecution. They may also need support mechanisms not just during the prosecution process, but also after the case is concluded. In some cases they will continue to be under threat for a significant period. Victims of HBA and FM are entitled to an enhanced service under The Code of Practice for Victims of Crime: CPS Legal Guidance (Victims Code). The police and CPS will comply with their responsibilities as set out in the Victims Code.
Men and Boys
HBA and FM also affect men and boys as victims; this includes heterosexual men, as well as gay, bi and trans men. Boys and men may find it hard to ask for help.
Male victims are often targeted with HBA when they are in a relationship with a woman, or blamed for the behaviour of a woman, who is perceived as bringing shame to her family, culture or community. The woman involved may, herself, have suffered harm, within a situation of family control. If a man tries to defend a dishonoured; woman he may be viewed as not complying with expected cultural expectations of approved masculinity and therefore be targeted himself.
Men may be forced into marriage for reasons similar to women and girls i.e. to fulfil family commitments and expectations, to secure visas or the desire of the family to control unwanted behaviour and to protect a familys reputation. FM may also be encouraged by the family/community for reasons linked to sexuality. Male victims may be forced to marry women because their families know or suspect they are gay or bisexual.
The difficulties and trauma associated with HBA can be exacerbated by language difficulties.
When selecting interpreters, care must be taken to ensure that they understand the culture, speak the same language/dialect and where possible are sensitised to issues of gender-based violence in BME communities. Experience has highlighted some concerns about interpreters and translators who are not on the approved list and who may be part of the family or linked to the group suspected of carrying out the crime. The selection of the right interpreter is essential given the risk of the details of the victims account being inappropriately disclosed to the perpetrators and/or other community members or for the victim to be threatened or intimidated by the interpreter. Police and prosecutors should consult CPS guidance on the use of interpreters. Police and prosecutors should also consider more widely how to ensure the victim is able to communicate, for instance their literacy and other ways in which their communication might be aided such as signing languages.
Victims, who are not themselves settled in the UK, but are here on a temporary route e.g. a student or worker, may be 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 removal /deportation and/or destitution. Some may 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 divorced women are ostracised and harassed for bringing shame and dishonour on their families and communities.
In some circumstances, where the victim is the spouse or partner of someone who is British or settled in the UK, they may have to apply to remain in the UK. In such circumstances, the victim would have to provide
- evidence that that their relationship had permanently broken down as a direct result of domestic abuse;
- show that their experience of domestic abuse occurred whilst they were in a relationship, with a British or settled partner; or
- they fear gender-related persecution in their country of origin. For further information see Annex D.
Annex A - Civil Legal Remedies
Children's Act 1989 - Emergency Police Protection
Local authority childrens social care may approach the police and ask for their assistance in undertaking a joint investigation. The way in which this is to be handled should be covered in the procedures prepared by the Local Safeguarding Children Board and in accordance with Working Together to Safeguard Children, http://www.gov.wales/topics/health/publications/socialcare/circular/nafwc1207/?lang=en%20f(for England) and Safeguarding Children Working Together under the Childrens Act 2004,
Where there is reasonable cause to believe that a child would otherwise be likely to suffer significant harm, a police officer may (with or without the cooperation of social care) remove that child from the parent and use the powers for police protection (section 46 of the Children Act 1989) for up to 72 hours. The police must inform childrens social care who must assist in finding safe and secure accommodation for the girl or young woman if requested to do so. Childrens social care must assist the police, 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 childrens social care, on their behalf, or in a refuge.
Local authority childrens social care must commence child protection enquiries under section 47 of the Children Act 1989 when they are informed that a child who lives, or is found in their area, is in police protection (Section 47(1)(a)(ii) of the Children Act 1989 ). They must also do so if they are told that the child is the subject of an emergency protection order, or they have reasonable cause to suspect that a child who lives, or is found, in their area is suffering or likely to suffer significant harm.
Care and Supervision Orders
Childrens social care may apply for an Emergency Protection Order (EPO) at any point within the 72 hours if there is reasonable cause to believe the child is likely to suffer significant harm if she is not removed to accommodation provided by or on behalf of the local authority or does not remain in the place in which she is then being accommodated. The police have the power to make their own application for an EPO on behalf of the relevant local authority, but as a matter of practice this is done by childrens social care.
An application for an EPO can be made by anyone including social workers, police, youth workers, advocates or friends of the girl or young woman but in practice it is usually made by local authority childrens social care.
An EPO authorises the applicant to remove the girl and keep her in safe accommodation, but this power can only be exercised in order to safeguard the girls welfare. In addition, the EPO operates to require any person in a position to do so to comply with any request to produce the child to the applicant. An EPO may also include directions as to the medical examination of the child (or that such examinations should not take place), although if the child is of sufficient understanding to make an informed decision, she may refuse to submit to such an examination.
An EPO lasts for a period not exceeding eight days, but it may be renewed for up to a further seven days. More information on EPOs is available at: www.cafcass.gov.uk/grown-ups/professionals/care.aspx. For further information on court orders, refer to The Children Act 1989: court orders (2014).
Sometimes an EPO is followed by an application from the local authority for a Care Order or Supervision Order (sections 31 and 38 of the Children Act 1989). Without either a Care Order or an Interim Care Order, once the EPO has lapsed, the local authority will no longer have parental responsibility.
No care or supervision order may be made with respect to a child who has reached the age of 17 (or 16 if the child is married).
When a Care Order or Supervision Order is not available due to the age of the child, childrens social care should be aware of the opportunities presented by an FM Protection Order or by making a child a ward of court, under the inherent jurisdiction of the High Court. A Ward of Court Order is available up to 18 years old. A child who is the subject of a Care Order cannot be made a ward of court. More information on Care Orders and Supervision Orders is available at: www.cafcass.gov.uk/grown-ups/professionals/care.aspx.
Inherent Jurisdiction of the court
A childrens social care department may ask the High Court to exercise its inherent jurisdiction to protect the child. Any person with a genuine interest in the child, including the child themselves, a private individual or the Children and Family Court Advisory Support Service (CAFCASS/CAFCASS CYMRU) legal services department can apply to have a child made a ward of court.
A local authority may only apply for an order under the High Courts inherent jurisdiction if it has permission from the court to do so (under section 100 of the Children Act 1989). Leave to apply may only be granted by the court if it is satisfied that the result the local authority wishes to achieve could not be achieved through the making of any order, other than one under the courts inherent jurisdiction. A local authority is entitled to apply for this where they have reasonable cause to believe that if the courts inherent jurisdiction is not exercised, the child is likely to suffer significant harm.
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. All types of orders under the inherent jurisdiction are flexible and wide-ranging, and an order may be sought where there is a real risk of a child being subjected to FM. Where there is a fear that a child may be taken overseas for the purpose of FM, an order for the surrender of their passport may be made as well as an order that the child may not leave the jurisdiction without the courts 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.
Applications for Wardship
Once a young person has left the country, there are fewer legal options open to police, social 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. Making a child a ward of court falls within the inherent jurisdiction of the High Court.
An application for wardship is made to the High Court Family Division, and may be made by a relative, friend close to the child or young person, or CAFCASS/CAFCASS CYMRU legal services department or any interested party. Where an urgent ward of court application is required, an application should be made where possible within court hours. It is key that in such situation, early liaison with the Clerk of the Rules occurs in order that they can attempt to accommodate such requests. When it is not possible to apply for urgent wardship order within court hours, contact should be made with the security office at the Royal Courts of Justice (020 7947 6000 or 020 7947 6260) who will refer the matter to the urgent business officer. The urgent business officer can contact the duty judge. The judge may agree to hold a hearing, either convened at court or elsewhere, or by telephone.
Paragraph 16 of Schedule 2 to the 2003 Act makes it clear that there is no effect on:
- the inherent jurisdiction of the High Court;
- any criminal liability;
- any civil remedies under the Protection from Harassment Act 1997;
- any right to an occupation order or a non-molestation order under Part 4 of the Family Law Act 1996;
- any protection or assistance under the Children Act 1989; or
- any claim in tort
if making an application for a FM Protection Order.
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.
Annex B - British High Commissions and Embassies
Contact the Foreign and Commonwealth Office or the Forced Marriage Unit if you require further details of any other British High Commissions.
Annex C - List of Specialist Support Agencies
0800 5999 247
The Honour Network helpline provides emotional and practical support and advice for victims and survivors (male and female) of FM and/or HBV and abuse. It provides advice and support to potential victims, victims in crisis and professional agencies.
029 20496920 or
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 FM 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 weekdays 10am - 5pm)
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, and 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.
Annex D - 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 the five-year probationary period. The Home Office Immigration Rules state that a victim of domestic violence can apply for indefinite leave to remain in the UK during the five year probationary period and does not have to wait the full five years.
A probationary period is the period for which the foreign spouse/partner has limited leave to remain in the UK which is dependent on their marriage/relationship subsisting. Currently, the probationary period is five 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. For migrants on temporary routes the domestic violence provisions are not in the 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 sponsor's extended family.
Applications from overstayers, or those who apply to remain after the five-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.
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 children's 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.
For more information you can refer to the Asylum Policy Instructions under Gender Issues for Asylum Claims:
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 https://www.eavesforwomen.org.uk/
Approach an advice and support agency, particularly women's 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 victim's 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.
Further guidance which explains the eligibility and criteria for those applying for leave to remain under the destitution domestic violence (DDV) concession can be found at GOV.UK.