Forced marriage - advice

This advice provides information regarding forced marriage. See related forced marriage – procedure, Receiving, registering and classifying a report and the Intake policy for further information and tasks that must be undertaken when receiving a report, including a report alleging a child or young person is at risk of forced marriage.

Document ID number 2413, version 2, 22 November 2017.

Introduction

Forced marriage is believed to be under-reported in Australia.

The term ‘forced marriage’ describes ‘what happens when someone is married without freely and fully consenting, because they have been coerced, threatened or deceived’ (National Roundtable on Human Trafficking). This is not the same as arranged marriages or ‘sham’ marriages (a marriage of convenience entered into purely to gain an advantage or benefit due to the status of being married). These terms can be used interchangeably, therefore it is crucial to establish the nature of any proposed marriage for any young person aged 16 or more. The marriage of any child under 16 years old is illegal.

Forced marriage for children and young people is also known as underage forced marriage, child marriage, and terms such as child brides are used. It is important to be aware that any ‘marriage’, involving a child under the age of 18 years old is a forced marriage unless the child consents, there is parental consent and a court order has been granted.

The crime of forced marriage may apply to: legally recognised marriages, as well as to cultural and religious ceremonies, and registered relationships; to marriages that occur in Australia, including where a person was brought to Australia to get married; and where a person is taken overseas to be married. A religious ceremony is often used as the vehicle in which to ‘marry’ a young person and therefore it is important to be aware this is unacceptable and cannot be used as an excuse.

It is important that child protection practitioners are mindful of this issue, appreciate the complexities around forced marriage, are aware of the resources available in respect of forced marriage, and understand how to respond to report of forced marriage or where they identify forced marriage may be an area of concern for a child protection client.

Relevant legislation

The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth), amended the Criminal Code Act 1995 by inserting offences related to forced marriage. The Marriage Act 1961 (Cth) also includes provisions whereby a marriage may be void if the consent of the party was not real, or if a party was not of marriageable age. Forced marriage offences may apply to any person involved in bringing about a forced marriage. This includes families, friends and marriage celebrants. The Australian Federal Police (AFP) typically investigate complaints of forced marriage, or request the assistance of Victoria Police to lead investigations. See the forced marriage procedure for how to contact the AFP.

Offences associated with forced marriage, such as physical and sexual crimes, are covered by provisions in Victorian based legislation, such as the Crimes Act 1958, and fall under the jurisdiction of Victoria Police.

It is important to liaise with Victoria Police and the AFP to establish who is leading the police investigation to coordinate the protective investigation and provide a cohesive approach to the child and family.

For child protection purposes, if a young person is at risk of, or in a forced marriage, research indicates they are also likely to be at risk from sexual, physical and emotional abuse.

As with all child protection involvement, sections 10, 11 and 162 of the Children, Youth and Families Act 2005 apply when forced marriage is a protective concern.

Child protection practitioners should engage the Child Protection Litigation Office (CPLO) to seek early legal advice on cases as appropriate.

Why does forced marriage occur and who is affected?

Forced marriage can occur for a number of reasons including:

  • to control unwanted behaviour or sexuality;
  • to prevent relationships considered to be unsuitable;
  • for financial gain;
  • to promote family links, and
  • family honour.

Forced marriage is not confined to any particular ethnic or religious group. Although males can also be victims of forced marriage, this crime disproportionately affects women and is considered a form of gender-based violence. It is a violation of human rights.

If a parent has been the victim of forced marriage, this can increase the likelihood their child will be at risk from this crime. This also applies to children whose older sibling(s) have been the victim of forced marriage.

The Royal Commission into Family Violence in Victoria recognised forced marriage as being a form of family violence and recommended it be included as an example of family violence (recommendation 156) in the Family Violence Protection Act 2008. Work is currently underway to implement this recommendation. Further information about family violence is available on the child protection manual.

If during the course of an investigation relating to forced marriage it becomes evident the young person is also at risk of sexual exploitation, consult the sexual exploitation practice leader as required and see sexual exploitation advice and missing advice where relevant.

Although forced marriage is viewed by some as a religious custom, no mainstream faith condones its practice. This is a culturally sensitive issue, as it primarily affects members from cultural and linguistically diverse (CALD) backgrounds. In Australia communities that are most affected include migrants from: South and East Asia; Africa, India; Bangladesh; Niger; Pakistan; and Afghanistan. English is often the second language of affected children, which can impact on the victim’s ability to access support or written material.

There may be distinct complexities engaging with families from CALD backgrounds including: community culture and norms; English as a second language; the use of interpreters, and the understanding families have of the Australian child protection and legal systems. Child protection practitioners are encouraged to seek advice from community organisations, where appropriate, ensuring the privacy of the child and family. Practitioners should also refer to the specialist practice resources when working with CALD families.

Limited research in Australia suggests that in 2015-16, those most at risk of forced marriage were: female; under 18 years of age; Australian citizens with an ethnic background, and most likely to be taken overseas for a marriage ceremony to occur. The younger a female is when forced to marry, the less input she will have in family planning, increasing the risk of being pregnant at a young age and experiencing complications during delivery.

Those primarily at risk of forced marriage are migrants entering or currently living in Australia. Information on forced marriage is included in the ‘Beginning life in Australia' which confirms forced marriage is illegal. The Commonwealth are considering including this issue in other publications to provide further education to the community.

Risk indicators

If someone is in, or at risk of a forced marriage, they may find it difficult to tell someone about their situation. Risk indicators can include:

  • a sudden announcement that the child is engaged;

  • the child’s older brothers or sisters stopped going to school or were married early;

  • the child’s family have a lot of control over the child’s life which doesn’t seem normal or necessary (for example, the child is never allowed out or always has to have somebody else from the family with them);

  • the child displays signs of depression, self-harming, social isolation and substance abuse;

  • the child seems scared or nervous about an upcoming family holiday overseas;

  • the child spends a long time away from school, university or work;

  • the child does not have control over their income;

  • the child is unable to make significant decisions about their future without consultation or agreement from their parents or others; and

  • there is evidence of family disputes or conflict, domestic violence, abuse or running away from home.

This list is not exhaustive. It can be difficult to identify the signs of forced marriage and each case is unique. It is important child protection practitioners seek advice and guidance where required to assist their investigation and possible intervention.

Child protection response

Children are at particular risk of forced marriage from early adolescence and through the teenage years. Associated consequences for children of forced marriage may include abduction and kidnapping, interruption or termination of education, female genital mutilation, physical, emotional and sexual abuse, and even murder. It has been known for females to be victims of ‘honour killings’ due to refusing to enter a marriage.

In Victoria, child protection becomes aware of an incident or threat of forced marriage if a report is received, or indicators are identified in the course of involvement in relation to other protective concerns. The community play a significant role in the reporting, and detection of forced marriage.

Upon receiving a report, child protection needs to assess whether the child may be in, or at risk of, forced marriage. Refer to forced marriage procedure and Receiving, registering and classifying a report. If the report is classified as a protective intervention report and the child is assessed as being at risk of forced marriage, a report will be made to police for criminal investigation – see Police and Child Protection protocol (pdf, 293.16 KB) . A number of steps can be taken, including:

  • The Secretary may seek a court order through the Children’s Court.
  • An application can be made under Family Law to:
    • prevent the affected child being removed from Australia.
    • seize the child’s Australian passport. This is particularly important where it is suggested the child may be removed to a country not a party to the Hague Convention.
  • An application can be made to apply for a Family Violence or Personal Safety intervention order. See Magistrate’s Court website.

Considerations for good practice

As with any investigation of protective concerns, the best interests of the child are the paramount consideration.

Family members are the usual perpetrators of this crime, however conviction rates are low due to the reluctance of victims to make a statement. The priority of child protection is to ensure the immediate safety of the child, educate the family regarding forced marriage, and take necessary steps to safeguard the child’s safety into the future.

Children are likely to have been coerced by their family to enter a marriage, or forced to lie and provide an inaccurate account of events to authorities, such as police or child protection, who may be investigating concerns. It is crucial that child protection practitioners work collaboratively with AFP or Victoria Police.

Children and young people may romanticise the forced marriage and state they are happy to be married and with the arrangement. Alternatively child protection may be advised any of the following:

  • The child is not in the alleged relationship, or any relationship.
  • The couple are boyfriend and girlfriend only and have no intention to marry.
  • The couple are in a committed relationship but do not plan on marrying until they are 18 years old.
  • The child is ‘promised’ to another person but this is an arranged marriage and will take place legally in the future. Possibly a dowry (a form of payment which could be monetary or goods being provided) has been promised.

It is crucial for child protection to remember the young person has likely been groomed and may have been coerced into this marriage. As always information gathered must be analysed carefully and not taken at face value.

If out-of-home care is required

If forced marriage is identified as a protective concern, practitioners must consider very carefully the placement needs of the child should out-of-home care be required, for example, whether it is safe for the child to be in a kinship placement, the location of the placement and the possible impact of removing the child from their community.

Resources

The Commonwealth Attorney-General’s department, in partnership with the National Roundtable on Human Trafficking and Slavery’s Communication and Awareness Working Group, developed a forced marriage community pack. This pack provides information and resources of forced marriage and is a useful tool for both practitioners and for families. This provides practitioners with key information, such as developing a safety plan with the young person.  

The Australian Red Cross runs a Commonwealth funded program for victims of trafficking which includes forced marriage. The program provides assistance (24/7) for victims, including, accommodation, counselling and legal advice. Referal to this program occurs through the AFP.

There are many community organisations in addition to the Red Cross, who do excellent work in this area educating communities and raising awareness, including: Good Shepherd; the Australian Muslim Women’s Centre for Human Rights, and Australian Catholic Religious Against Trafficking in Humans (ACRATH). All have excellent resources on their websites that can be used by practitioners to increase their knowledge and understanding of forced marriage and the needs of victims.

Anti-Slavery Australia is an organisation that offers access to specialist legal service, undertakes research and advocates for those who have experienced any form of human trafficking or slavery-like practices, including forced marriage. Their website, My Blue Sky, is a valuable resource for practitioners and for those who have experienced, or who are at risk of forced marriage.

1