Forced marriage of people with a learning disability has hit the headlines recently, as the Forced Marriage Unit revealed an increase in reporting and a marriage was annulled by the court of protection. But what actually constitutes forced marriage and what needs to be done to tackle this very complex problem?
Threats, imprisonment, physical violence and financial blackmail speak for themselves – it can be horrifyingly obvious when a marriage is forced. Often there’s a cultural aspect and emotional blackmail, as parents tell their sons or daughters they will bring shame on their family if they do not marry the partner their parents choose. Some are taken abroad to be married.
But not all cases of forced marriage are so clear-cut. The government’s Forced Marriage Unit (FMU) describes a forced marriage as a marriage where one or both people do not (or, in the case of some people with a learning or physical disability, cannot) consent to the marriage and pressure or abuse is used. It also clarifies that an arranged marriage – a cultural norm in some communities – is not the same as a forced marriage. The families choose the partner, in an arranged marriage, but both people consent.
It sounds simple, but it can be very complicated, especially for people with a learning disability, who can be more susceptible to coercion. Take Naz, for example (see below). He has a mild learning disability. His parents encouraged him to get married and he agreed. He was deemed to have capacity to consent to marriage, but it was later discovered that Naz didn’t understand sex. His wife left and he forgot all about her.
It is clear that this was not a conventional, or acceptable, marriage but was it forced? “At the time, it wasn’t seen as a forced marriage,” says Mandy Sanghera, a human rights activist who has dealt with many cases of forced marriage of people with a learning disability – including Naz’s. “But when we reassessed the situation, we realised it was, because he couldn’t consent to sex. It is not always black and white.”
A question of capacity
The issue of capacity to consent, as Naz’s case shows, makes the situation complex. The Mental Capacity Act is there to protect people who may be unable to make some decisions. It states that every adult has the right to make their own decisions and it must be assumed they can unless it’s proved otherwise. Everyone must be given reasonable help to make a decision before it is decided that they don’t have capacity. The Act also says that making a bad decision is not proof that the person can’t make any decisions.
For those who do not have capacity, a best-interests decision can be made on their behalf, in most instances. But there are some decisions that can’t be made on someone else’s behalf – including consenting to marriage or sex.
“Normally, if a person expresses the wish to get married and has a basic understanding of the marriage contract, they will probably be deemed to have capacity,” explains Bella Travis, Mencap’s information and policy officer for profound and multiple learning disabilities (PMLD).
“There’s a small number of people who will never have capacity to consent to marriage – for example, people with PMLD, who would never be able to express a wish to get married. If they get married, it is clearly forced. For other people it is a grey area. Some people with a less severe learning disability may, in normal circumstances, be able to consent to marriage. But if coerced, or not properly informed, they may be unable to weigh up their options properly. As a result, they might be deemed to lack capacity to make this particular decision.”
In many cases, people are not doing this because – as with Naz’s case – there seems to be no issue to raise. The person with a learning disability may be content. Many are keen to please and, without realising the implications of marriage, such as a sexual relationship, sharing finances, moving away from their parents or losing support, are willing to go through with it.
Even if they are not happy with the situation, many will not want, or know how, to report it. This is particularly true if their parents, and main carers, are instigating the marriage. There is a high incidence of this among south Asian families – where, according to the FMU, most forced marriages occur. Generally, parents have good intentions – most want to secure a carer for their son or daughter. Some, unaware of the capacity issue, just think they are arranging a marriage. Others may be helping someone gain a visa. Whatever the reason, most don’t think they are at fault and don’t see a problem.
The other issue is that third parties – including support workers – are often reluctant to get involved. They may not be close enough to the person to recognise what’s happening – this is exacerbated by the fact that many Asian families don’t interact with social services. Sometimes, marriage is simply seen as something that professionals shouldn’t interfere in. Also, says Mandy Sanghera, “local authorities don’t get involved because they say it’s an honour thing. It’s not – we’ve got guidelines. Professionals need to be clear about protecting people and not political correctness”.
Rachael Clawson, a social work lecturer at the University of Nottingham, wrote the guidelines – the FMU’s ‘Forced Marriage and Learning Disabilities: Multi-Agency Practice Guidelines’– working with the Ann Craft Trust and the Judith Trust. She says it’s important that professionals read the guidelines and are not frightened of doing something. “The consequences for the victim of not taking action could be horrendous,” she says.
Although the research behind the guidelines found that forced marriage occurs mostly within families in certain cultural communities, Clawson admits it could stretch wider. Mencap has come across potential cases in which people with a learning disability have been targeted by strangers wanting visas. “Whatever context you place forced marriage in, it is a safeguarding issue for people with a learning disability. If people have concerns, they should act on them. It’s not about bulldozing in, but itis certainly about not ignoring the problem.”
A proactive approach
The government has committed to making forced marriage a criminal offence – currently, it only warrants a forced marriage protection order (FMPO), which can stop a person being married against their will and taken abroad. A forced marriage can also be annulled.
But given the complexities of forced marriage, capacity and people with a learning disability, criminalisation is not necessarily the answer. Critics argue that it would make people even more reluctant to report cases. Criminalisation will only work if reporting increases,” says Mencap’s campaigns and policy officer, Jo Davies, “because possible criminal action will only act as a deterrent if those coercing people into marriage believe there is a chance they will be reported. Without more proactive steps being taken by social services, police and other agencies with responsibility for safeguarding, the vast majority of forced marriages will go unnoticed and victims will remain unprotected.”
Better safeguarding is essential. “We want to work closely with safeguarding boards to try and get it on their agendas,” says the Ann Craft Trust’s Deborah Kitson, “and with professionals, families, carers and people with a learning disability themselves, to raise awareness of the issue and try and decrease the problem.”
Mandy Sanghera believes the Home Office should be doing more. Work has started in this area and, in April, the FMU and the Association of Directors of Adult Social Services agreed that the UK Border Agency will refer cases where it appears a person with a learning disability has sponsored a visa for a foreign spouse to the relevant local authority. The authority will then organise a capacity assessment.
Plus, social care charity Social Care Institute for Excellence has drawn up safeguarding guidelines for social workers and other staff, which include advice around forced marriage. So work is starting, but there is more to do.
Rachael Clawson has set up a national steering group on forced marriage and learning disability and, working with the Ann Craft Trust, has been given funding by the FMU to do more research. “The whole idea of setting up the steering group is in recognition that there is no coherent or cohesive approach to safeguarding people with a learning disability who might be at risk of forced marriage,” she says. “Once our research is completed, we will have a better idea of what’s happening nationwide and that will help inform the work that the steering group will do.
“It’s a long road, but we’ve come a long way since the time when we were saying this is an issue and people were saying it’s not,” she finishes. “It’s gathering momentum.”
“He didn’t have an understanding of sex”
Naz, 27, has a mild learning disability and autism. About four years ago, his parents decided he should marry a girl they knew and persuaded Naz it was a good idea. He agreed, as all his brothers were married. Naz’s social worker questioned him about the marriage and assumed he had capacity to consent.
Two years into the marriage, Naz’s wife went to her GP and asked for help, as she had been assaulted by Naz’s sisters and mother when she wanted to leave. It became clear that she had not been aware of Naz’s learning disability.
This prompted social services to do another mental capacity assessment, involving a psychologist, which revealed that Naz didn’t have an understanding of sex. His wife left home and never returned. Since then, Naz has forgotten about her and his marriage.
Get information and advice on forced marriage from the Forced Marriage Unit