G and D: The Forced Marriage (Civil Protection) Act 2007 in Northern Ireland

In November of last year the Ministry for Justice reported that some 86 forced marriage protection orders were made in the first year of operation of the Forced Marriage (Civil Protection) Act 2007 (see the Guardian on the shortcomings of the order scheme here).

Last month, in the case of G and D (Risk of Forced Marriage: Forced Marriage Protection Order) [2010] NIFam 6 (26 March 2010),  Stephens J. examined these orders in what appears to be Northern Ireland’s first major case under the Act. The judgment is available on BAILII and the Belfast Telegraph reports here. G and D are sisters of Pakistani Muslim descent living in Northern Ireland. They are aged 12 and 14 and have 4 older brothers. When the girls were aged 10 and 11, a Trust, as the judgment has it:

brought wardship proceedings on the basis that the parents had arranged for G and D to travel to and remain for a number of years in Pakistan so that they could be educated in that country. The Trust alleged that this was a pretext, that no arrangements had been made for their education [The relevant facts are set out at [42]-[57]] and in reality, based in part on the previous experience of the forced marriages of their brothers S and T [now in their 20s] in 2005, [the High Court had determined in the course of wardship proceedings brought in respect of T in 2006 that he had indeed been forced to marry. The circumstances of his religious marriage ceremony are described at [31]-[41]] that once in Pakistan they were to be isolated, attended to and prepared so that they also could be forced  to marry… . The Trust also contend[ed] that the parents either chose to ignore the distinction between a forced and an arranged marriage or have no insight into the emotional and physical pressures that they have applied in the past and for instance still apply in a different context in relation to [their son] U [who had been excluded from the family home for refusing to obey rules established by the mother]. [Their sons U and V had visited Pakistan without being forced to marry].

Interim wardship orders were made in respect of the girls in 2007 and care and control of the girls was given to the Trust. This year the High Court was asked to make a final order as regards wardship or, in the alternative, to make an order under Schedule 1 of the Forced Marriage (Civil Protection) Act. Before the 2007 Act came into force, the inherent wardship powers of the High Court had tended to provide the main route to relief in cases where minors were forced into marriage. And so this case began as a wardship case. (Wardship has been used to facilitate the repatriation of children sent abroad for marriage – see e.g. the case of the 11 year old in SB v RB but see In the Matter of a Child expressing doubt as to whether this power ought to be used as frequently where the child is older. The Children Act 1989 is also used in appropriate cases, where the forced marriage is part of a pattern of parental failings towards the child – see e.g. [2009] EWCC  2 (Fam)) . The High Court accepted that there was a real and substantial risk that the girls would be forced into marriage if they travelled to Pakistan and that the conditions for granting a forced marriage protection order were satisfied. While the court held that forced marriage is an abuse of human rights in itself, the High Court also noted that there was a recent pattern of first cousin marriage in the girls’ family. Their brothers had been married to first cousins. Because their father suffered from a ‘devastating hereditary disease’ the Court argued (at [14]) without much further explanation that cousin marriage posed an additional risk to the girls in terms of the health of any future children.

However, the court expressed unease at the substantial interference with the qualified Article 8 ECHR right to private and family life which a wardship order entails.  The evidence was that, when the risk of forced marriage was excluded from the frame, the girls were well cared for and thriving within the family. The central thrust of the judgment  (see [21]) was that a forced marriage protection order was the least intrusive means of achieving the law’s purpose in preventing forced marriages and was not a disproportionate interference with the girls’ Article 8 rights. That seems to me to be correct, and the judgment in this respect underscores the carefully tailored nature of the forced marriage protection order.

Last year I published an article about the Forced Marriage (Civil Protection) Act 2007 (available here by subscription or email me for a copy) written before its commencement in 2008. I will not rehash the arguments I made then here. I do, however, have some points to make arising from the court’s presentation of forced marriage and of the family’s actions in the instant case. I want to talk about the representation in this case of the family which forces a child into marriage. First, Stephens J appears at pains to present forced marriage as a phenomenon which, in his view, can occur even in otherwise well-functioning families. See, for instance, paragraphs [24]-[25] of the judgment:

The mother who gave evidence before me was concerned to bring up all of her children in accordance with proper ethical standards giving them every conceivable advantage at her disposal. In an affidavit sworn on 18 September 2007 she stated that she had brought up her children well. That they behave well and work hard. That her children know how much she loves them, what she has done for them and that she will always be there for them… The children, G and D, are a credit to both of their parents. G’s teacher states that G is fantastic in class mixing very well. D’s teacher states that her attitude is very good, she has integrated very well and that she is the “life and soul”. The social worker states that both of the children are delightful, confident and intelligent.

It proves difficult for Stephens J to reconcile this stance with his position that (see [17]) ‘all forced marriages deny their victims at their deep hearts core the most fundamental and fulfilling human emotions. They are abominations involving gross abuses of human rights. There can be no justification for such degradation of the human spirit and the autonomy of the individual’ and, indeed, with his sense that the ‘respect’ which this family have sought to teach their children amounts to ‘an overarching filial duty which I hold in the context of this family means obedience overriding their full and free choice’ [28]. This is an old difficulty borne of the need to give an account of the sense – now well established in the forced marriage jurisprudence –  that the pressure necessary to force a marriage may be emotional as well as physical, and may interact with an inculcated sense of filial duty (see [18]).

I am interested in what might come of the tension between the images that Stephens J sets up: the child who is at once happy and loved and does well at school (and who in these post-multicultural times has achieved the greatest prize of all: ‘integration’) but stripped of meaningful autonomy, the struggling family which is all of a piece with the seat of profound human rights abuse, the parent who unintentionally, or with ‘the best of intentions’, robs her child of something fundamental. He also highlights individuals’ affective links to culture. For instance, he attributes the mother’s controlling behaviour, and her emphasis on certain cultural precepts relating to ‘respect’ and her ‘idealised’ representations of Pakistan to her own unhappiness in Northern Ireland, where her husband is ill, where she herself has become depressed and isolated, and where her family have been subjected to racial attacks. The values of home have become so important to her, he suggests, because she suffers abroad ‘She reacts to pressure by closer and stricter adherence to what she views as correct.’ ([24]-[27]. In addition, her children have retained a particular culture-grounded sense of family loyalty;  their family has become self-sufficient and interdependent, as an emotional response to the hostility in the neighbourhood [26].

I wonder what might come of a development of his analysis, which places different layers of love and of abuse in the same place. It seems to me instinctively right that any ideology, grounded in religion or not, can seep its way even into familial intimacy so that it is hard to separate care from what might be regarded as harm. This analysis certainly helps to avoid stereotypes of Muslim parents as inevitably hostile to their daughters’ interests – it captures something of the doubleness of parental love; its mix of support and control and of the harm that can be done when control overrides support. Nevertheless any engagement with this sort of analysis needs to be carefully undertaken so that it does not merge with less helpful established discourses: of British South Asian mothering as always ‘poisoned by culture’, of young British South Asian women as stymied by duty to and care of others so that their ‘confidence’ and ‘intelligence’ is always at risk and they cannot truly flourish in themselves. It is difficult now in Europe to touch on questions of Muslim women’s agency without lapsing into assumptions of victimhood. It seems to me that Stephens J does not do enough to guard against the dangers which follow. For instance, he is required under s. 1(3) of the 2007 Act to take account of the girls’ wishes and feelings on the protection order, but it seems that because he distrusts the wishes that they have expressed, as too much grounded in parental influence, he does not take account of them at all (see [52]). I wonder whether there might not be more complexity to the girls’ relation to culture than he allows and whether, even accepting wholeheartedly that familial pressure limited the girls’ capacity to address many of the salient questions related to the order, (see [30]),  Stephens J might have made more effort to give a sense of how these ‘intelligent’ and ‘confident’ girls, encounter cultural and familial pressures as agents rather than as dupes. Along with Sundari Anitha and Aisha Gill in their excellent recent article in Feminist Legal Studies, I wonder whether – particularly if we work with an eye to preventing forced marriage – a more nuanced attention to questions of the agency of parents and their children might get us further in understanding the ways in which a forced marriage may arise.

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