27 February 2023 was a historic day in the safeguarding of children and young people, as a new law came into force in England and Wales, having received royal assent last April. The Marriage and Civil Partnership (Minimum Age) Act 2022 has raised the minimum age someone can legally marry to 18.
It has long been a source of concern that the legal loophole which allowed 16- and 17-year olds to marry with parental consent was capable of being exploited to allow parents to more easily coerce young people into marriages against their will.
Child marriage is defined as any marriage or informal union where one or both parties are under 18. Forced marriages are unions where at least one of the parties has not explicitly expressed their full and free consent, which is often the situation in child marriages across the world. Both child marriage and forced marriages often occur in secret, sometimes kept hidden even from the couple getting married.
The legal and technical differences are important to note, as forced marriage can occur when both parties are over 18, while child marriage is where one or both parties are under 18.
Currently, forced marriages are only considered an offence if a person uses a type of coercion to cause someone to marry, or if the individual lacks mental capacity to agree to marry under the Mental Capacity Act.
It is also important to note that there is a significant difference between an arranged marriage and a forced marriage. Arranged marriages are legal, as although families play a leading role in choosing the partner, individuals can decide whether to enter the marriage.
Now, parents cannot arrange a marriage for any child under the age of 18, providing a further safeguard against the risk of a child feeling unable to decline an arranged marriage for which they are not ready.
In 2014, the Anti-social Behaviour, Crime and Policing Act made forcing someone to marry a criminal offence in England, Wales and Scotland. In Northern Ireland, the same offence is under the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act.
The global charity Save The Children, along with other campaigners for child safety, calls child marriage a violation of child human rights and a form of gender-based violence. Child marriage can have devastating consequences for girls. Forcing marriage young, before the girl is physically and mentally ready, leads to loss of childhood and lifelong impacts.
It is estimated that 40-million girls aged between 15 and 19 across the world are currently married or in some form of union. Every year, a further 12-million will marry before they turn 18, and 4-million of those are under 15.
By 2030, it is thought that 150 million girls globally will lose their childhoods due to child or forced marriage.
Not only this, the COVID-19 pandemic has had huge effects on children, forcing them out of schools, with the threat that millions in developing parts of the world will never return to education, greatly increasing the risk of being forced into marriage at too young an age.
However, there is progress being made through campaigns, funding and the law. In 2016, UNICEF and the UN population fund launched a joint initiative to tackle the problem of child marriage globally. While funding has been forthcoming from the UK, the law which allowed child marriage in our own country has not been addressed until recently.
The Marriage and Civil Partnership (Minimum Age) Act finally ended the archaic law in England and Wales, which allowed children aged 16 and 17 to be married, with the consent of their parents, even though they are legally considered children.
It was the Marriage Act 1949 that legitimised child marriage in England and Wales. The mechanism of parental consent, which existed under this law, whilst originally intended to be a safeguard against child marriage, has, in reality, proved to be a vehicle for parental abuse.
However, it is important to note that the minimum age of marriage remains 16 in Scotland and Northern Ireland, and in Northern Ireland parental consent is required under 18, but not in Scotland.
Campaigners have long argued that the existing law has allowed children between 16-18 to be coerced into marriage without their consent and against their best interests. This has led to many cases where young people have been subjected to domestic abuse, some suffering lifelong harm, and losing opportunities for education, employment, personal growth and independence.
The reasons for child marriage and forced marriage are extensive and complex, and often come from a place of cultural heritage. This could be within the family, with traditions dictating that to strengthen family ties, betrothals must be made between children in childhood, even as early as birth.
Other reasons include gender inequality, shame around sexuality, poverty, financial gain, and immigration laws.
Thankfully, the implementation of the new law means that Parliament is finally living up to its international obligations to stop underage marriage and remove the inconsistencies in its approach to tackling it as a global issue.
The new law has also made it an offence for a person to aid, abet or encourage any child under 18 to enter into any form of marriage. Furthermore, it will make it a criminal offence for a responsible person, i.e. a parent or guardian, to fail to protect a child from entering any form of marriage.
Importantly, this law also covers non-legally binding ‘traditional’ ceremonies which are still viewed as marriages by the couple and their families.
These offences will now be punishable by up to seven years in prison.
This is a powerful move that will work to safeguard young people and prevent parents or guardians from abusing their positions as responsible adults and forcing children into underage marriages.
Alongside this, the Government has released a resource pack on forced marriages, as part of its Tackling Violence Against Women and Girls Strategy (VAWG). This strategy was published in 2021 and acknowledged that there was still a long way to go in terms of protecting women and girls from abuse.
VAWG recognised that far more needed to be done, and could be done, in providing local authorities, the police, schools, healthcare services and other frontline professionals with support and information to implement change. Additional resources on forced marriages have recently been released, in line with raising the legal age of marriage.
The law raising the legal age of marriage will go some way to help protect children from being forced into marriages, but more needs to be done to ensure they are not subjected to abuse, trapped in relationships against their will. Action is needed on the ground, among local authorities and others professionals, to ensure the safety of children and young people. Criminalising underage marriage is a strong start, but the race is far from over.
Nicky Hunter is a Partner at Stowe Family Law.
Photo Public Domain via Piqsels.