sou · H0B335 · 2012-05-24 00:00:00 — According to our terms of reference among other things we were to -increase knowledge about forced marriage and child marriage, -consider whether such marriages should be made criminal offences, and -consider whether the possibility of exemption for child marriage should be removed. In addition we were instructed to think of measures that could be taken apart from legislation, inter alia in order that the authorities work to counter forced marriage and child marriage should become safer and better. Legislating against forced marriage and child marriage is a com- plicated matter. From a legal point of view there are almost insur- mountable obstacles regarding child marriage. In addition there are fears that legislation of this type would have a stigmatising effect on societys view of minority groups and their traditions. It is there- fore tempting to abstain from legislation. But then you must remem- ber the stories and be aware that there are people, particularly girls and women, who are in very great need of the help and protection of legislators and authorities. Some measures should therefore be taken in spite of our instinctive reaction not to. We propose, among other things, the following. 1.Forced marriage be made a criminal offence through a special penalty stipulation. This would also include certain alliances simi- lar to marriage, but which are not valid marriages. We call these informal marriages. 2.Child marriage be made a criminal offence. Here too the infor- mal marriages are included. 3.The possibility of exemption to enter into child marriage be re- moved. 4.A national so-called competence team be established to lead, coordinate and support efforts to counter forced marriage and child marriage and also honour-related violence and oppression. Along with these proposals we submit a further four that are less conspicuous but from a practical point of view probably equally important. 5.The National Board of Health and Welfare should be commis- sioned to carry out a supervision project concerning forced marriage and child marriage at municipalities social services de- partments. 6.For religious communities and wedding officiators to be granted permission to perform marriages, it should be required that they do not carry out any religious forced marriages or child mar- riages, which do not result in legal marriages but lead to alliances with the same effect in practice. 7.In its ordinary operations, support to religious communities shall carry on a dialogue with the com- munities and marriage officiators about child marriage and marriage against a persons wishes. 8.A recommended method be formulated for family work in acute situations. It should be based on, among other things, an evalua- tion of the methods used in some parts of the country today. On some matters we abstain from presenting proposals which would in themselves strengthen protection against forced marriage and child marriage. For example, we do not propose any limitations to the possibility of recognising in what is known as a proxy marriage entered into abroad, nor the criminalisation of such mar- riages even when they take place against the wishes of one of the couple. do we propose any further restrictions to the possibility of recognising child marriages that have been entered into abroad. In these cases we consider that the arguments against legislation override. This also applies to an otherwise conceivable possibility of withholding in some very distressing cases the true grounds for a decision to refuse a permit. we summarise the experience, knowledge and insight we have gained concerning forced marriage and child marriage, and also the considerations that are the basis for our proposals and other conclusions. When we use the word child marriage we mean all marriages where one of the parties is under the age of 18. By forced marriage we primarily mean marriage that has been entered into as a result of punishable force. When we also include marriages that have been entered into following other forms of pressure we say married against a persons will. That term also includes cases where there has been no pressure as such, but where the person is not able to decline a marriage that others wish him or her to enter into, or where her or she can decline only with great difficulty. The extent and nature of the problem We mentioned above some figures that apply to the extent in of the problem of marriage against a persons will. We estimate that in 2011 at least 250–300 people experienced an acute or fairly acute risk of being married against their own will. Previous inquiries indicate that about 70 000 young people have restrictions in rela- tion to marriage or from conditions laid down by the family for choice of partner. has estimated that some 8 500 young people are worried that they will not be allowed to choose whom they marry. From the inquiries carried out in, or in connection with, our work the following, inter alia, further emerged: -At least 16 people in 2011 were kept abroad to be married off against their will. -In there were thirteen children in aged 15–17 who were registered as married. -The number of children living in relationships that are not legally valid as marriage but which in practice are similar may be assumed to be several times greater than the figure just mentioned. -in one year handled 11 cases of child marriage and 8 cases of suspected forced marriage in matters concerning permits. -In one year the handled a total of 70 cases regarding national registration of a child marriage contracted abroad where at least one of the couple was either a Swedish national or a resident of at the time when the marriage was contracted. It should be clear from these figures that the problem of forced marriage and child marriage is considerable in even in purely quantitative terms. There is no doubt that it is a major and concrete problem for many of the individuals concerned. Our investigation indicates that a majority of the people who are married or engaged to be married against their will, or who are worried about being married off against their will have a foreign background. Furthermore, there is a clear connection between for- ced marriage and child marriage on the one hand and, on the other, honour-related violence and oppression. However, as mentioned previously these circumstances should not influence our attitude to forced marriage and child marriage. Instead, in the first instance it is a matter of securing the human rights of those exposed. Some other points of departure Attempts to deal with child marriage have been ongoing for many years in the international arena. There is an almost 40-year-old UN Convention on, inter alia, a minimum age for marriage. The discus- sion in this country on forced marriage and child marriage began in the early 1970s and has intensified over the past 10–15 years. It is clear that in many cases there is a connection between forced mar- riage and child marriage on the one hand and, on the other, honour- related violence and oppression. In 2004 some amendments to laws were implemented in for the purpose of strengthening protection against forced marriage and child marriage. The amendments meant, among other things, that no one may enter into marriage before a Swedish authority be- fore the age of 18 without special permission (marriage exemption). Furthermore, the conditions for marriage exemption were tightened. The rules for recognition of foreign marriages were also tightened in order to strengthen the possibility of refusing recognition in the case of forced and child marriages. The possibility of divorce with- out a preceding time for consideration was extended to include cases where marriage was entered into in under compulsion or in contravention of the age requirement. Since 2003 the Government has taken initiatives for far-reaching efforts to counter honour-related violence and oppression. In 2010, a special action plan was adopted to prevent young people from being married against their will. It comprises a total of fifteen mea- sures in four areas, namely strengthened preventive work, rein- forced support and protection, enhanced collaboration between authorities and increased knowledge. One of the measures was to set up this inquiry. However, some other countries in Europe appear to have made more progress than we in this country in work to counter forced marriage and child marriage. This applies in particular to the and where partly different paths were chosen. We have studied their work and experience and tried to learn from them. The discussion in the report is based on some fundamental blocks. One of these is the view of marriage as an important legal and social institution which may, however, involve very negative consequences for the individual who does not want to, or is not ready to marry. Another block is that both marriage against one of the partys wishes and child marriage are in violation of human rights. This approach is confirmed by several international agreements. The UN has defined among other things forced marriage, early marriage and dowry as harmful practices that constitute a form of violence against women and a violation of womens human rights. The UN General and other UN organs have urged govern- ments to develop and fully implement laws and other measures to eradicate harmful practices and traditions including early marriage, forced marriage and honour-related crime. In 2011 adopted a Convention on preven- ting and combating violence against women and domestic violence. It establishes that forced marriage is to be regarded as a form of violence against women, and states are enjoined to make forcing a person to marry a punishable offence. To be forced to marry and live with someone against ones will is clearly in itself a major encroachment. Expectations that the marriage should lead to sexual cohabitation and children imply a major risk of sexual assault. Experience shows that many of the girls and women who are married against their will are exploited and badly treated in their marriages. Difficulties in obtaining a divorce accepted by their own group and the stigmatisation of divorced women in this group can further exacerbate the situation. Other disadvantages include the fact that early marriage may lead to discontinued schooling. Lack of education can result in long- term alienation and major difficulties in getting into the labour market and earning a living. In discussions about forced marriage, child marriage and honour- related violence and oppression, fears are often expressed that a we and them attitude will emerge and racist and xenophobic ideologies gain support when particular groups are pointed out because they are considered to represent negative behaviour and opinions. In view of this risk, and of the danger that people will be subjected to prejudice, it is important to emphasise that legislation against forced marriage and child marriage is intended to protect vulnerable people, not to attack or point out particular groups. Pro- tection of those exposed safeguards equal human rights for all and is not dependent on the group to which the individual belongs. A fear of xenophobia or stigmatisation cannot be allowed to result in a lack of attention on the part of society to the individuals exposure. We have seen examples of the existence of this type of danger in our work. There are many descriptions of how society does not intervene when very young girls are married off and become parents. It cannot be accepted that children from minorities are refused the protection considered self-evident for children be- longing to the majority in Swedish society. At the same time it must be underscored that people, groups and cultures deserve basic respect even to the extent their traditions and approach include values that are unfamiliar to the majority in the country. To be sure, basic respect of this nature can never be allowed to mean any departure from fundamental rights and free- doms. But it should mean that amendments to laws that may be perceived to be directed against a group or tradition be implemen- ted in a tone of voice and with an approach in general that does not create unnecessary confrontation and which does not play into the hands of xenophobic forces. It must be admitted that in this instance the legislator is in an area that is unusually difficult to . No possibility of exemption for child marriage Persons under 18 may not marry in this country unless the county administrative board grants permission, known as marriage exemp- tion. The provisions were tightened in 2004. Nowadays exemption is only granted if there are special reasons. We mapped out cases of exemption for the years 2008–2010. The survey shows that the number of young people applying for marriage exemption has more than halved since the year 2000. During the three years we studied, a total of 68 children applied to be permitted to marry. Six were granted permission, that is to say nine per cent. 58 of the applicants were girls, 10 boys. The majority of applicants had a foreign background. Of the six who were granted exemption, three were girls and three boys, all of them . Although there may be reasons that appear in individual cases to be very deserving, we propose that the county administrative boards possibility of granting marriage exemption for children be abolished. An essential reason for this is that the exemption rule does not only give a minor the right to enter into matrimony but also ex- cludes that person from the protection the age limit provides. In our view it may be seriously questioned whether under any circum- stances it should be accepted that children in take decisions with such far-reaching consequences as those involved in entry into marriage. By giving the opportunity for marriage exemption, society is in a way giving it its support. In favour of the exemption possibility it is usually asserted that in certain groups great difficulties arise for both the mother and the child if a child is born out of wedlock. However, it must be called in question whether traditions in a group should outweigh the rights of the pregnant child. Swedish law makes no difference in a childs rights based on birth of the child in or outside of wed- lock. The legislator should not contribute to preserving old-fashioned and discriminatory norms in another direction. If the possibility of marriage exemption is retained in order to protect girls who become pregnant against reprisals or displeasure in their own group, it would mean a neglect of societys obligation to treat all equally and a kind of support for norms implying that extramarital sexuality and pregnancy are shameful and prohibited. This is an approach Swedish society should reasonably repudiate. The fact that the possibility of exemption exists may further mean pressure on children to marry. An advantage of its abolition is that young people who do not want to marry, and also parents who want to withstand pressure from others to marry off a child, are given better opportunities to gain a hearing for their wishes. In practice the exemption possibility means that legislation does not provide the same protection for children from different religious, cultural or ethnic minority groups as for children of the majority of the population. An important point of departure must be that all children be given the same protection under the law. It may be that families are so anxious that their under-age daughters marry a person selected by the family that the girls are pressured into becoming pregnant, which is assumed will increase their chances of marriage exemption. Forced parenthood must naturally be counteracted. parenthood increases the risk of negative consequences for the young person, such as lost educa- tional opportunities and alienation. Swedish law does not contain any penalty specially aimed at forced marriage. On the other hand, there are other provisions in the Penal Code that may be applicable in certain cases, in particular that of unlawful coercion. Child marriage is not a criminal offence. In a report dated 2008, the inquiry into human trafficking proposed a penalty for guardians who allow children under 16 to enter into marriage, but the pro- posal did not result in legislation. We are of the opinion that the reasons for a criminalisation clearly outweigh those against and that this applies both to forced marriage and child marriage. Regarding forced marriage it is a matter on the one hand of creating a special penalty in order to underscore societys reaction more clearly and in a more focused way and, on the other, of widening the punishable area somewhat compared with what applies today. Regarding child marriage there is a complication in that such marriages cannot in principle be entered into lawfully in and would not be possible at all under the regulations should the exemption possibility be removed. However, one problem is that children who are to be protected by the Swedish legal system but who have their background in another country may often run the risk of being married off on the initiative of their parents or other relatives in that other country. Another problem is that children enter into alliances similar to marriage in this country in a religious or traditional order. These are certainly alliances that do not be- come legally valid here, but in practice the people involved are still considered married in their own environment and cannot always freely leave the relationship. One of the most difficult issues for the inquiry was whether such informal marriages should also be criminalised. In spite of the delimitation difficulties that exist, we consider this should be the case. The decisive reason is that there are children and young people in great need of such protection from the legal system. Thus, we propose that a special penalty provision be introduced into the Penal Code concerning forced marriage and an equivalent provision concerning child marriage. The offences should be desig- nated marriage coercion and child marriage offence. Marriage coercion is committed if, by unlawful coercion or through exploitation of a persons exposed situation, someone forces that person to marry. The sentence is imprisonment for at most four years. A child marriage offence is committed if someone in- duces a child to enter into matrimony or takes an initiative for or arranges a child marriage, providing the marriage comes about. The sanction is a fine or imprisonment for at most two years. It is proposed that both marriage coercion and child marriage offences should also include what we call informal marriages. They are described as alliances that can be equated with marriage in the sense that they are binding under an established system of norms that includes special requirements for dissolution of the alliance and are entered into in accordance with that system of norms. In accordance with a provision in the above-mentioned 2011 convention, we further propose punishment for any person who by deception induces a person to to another country for the purpose of forcing that person to enter into matri- mony there. The scale of punishment shall be imprisonment for at most two years. Regarding child marriage offences we propose that he/she who is him/herself a child shall not be punished if he or she contributed to a child marriage offence by marrying the child. her/his partner be punished when the age difference is small and, in view of this and the circumstances in general, he/she should not be held liable. We do not propose any provision that criminalises what are known as proxy marriages, not even if it is a case of someone entering into matrimony on behalf of another person against that persons will. The limitation period for child marriage offences and for marriage coercion offences committed against a child shall be calculated from the day the injured party reaches the age of eighteen. A national Competence Team The action of authorities is of fundamental importance for protec- tion against forced marriage and child marriage. Knowledge, co- ordination and access to qualified advice are needed. We therefore propose a National Competence Team be established with the task of promoting in different ways work to counter mar- riage against a persons will, child marriage and honour-related violence and oppression. The Team should be made up of people with special expertise in the problem areas and in different relevant fields. The Competence Team should be instructed, among other things, to develop collaboration and make it more effective, promote good working methods, support authorities and other activities, produce educational and informational material, and create meeting places for practitioners and researchers. Principle for the Competence Team should initially be the county administrative board in , which has considerable ex- perience and knowledge in the area. Work should be evaluated after a few years and in this connection it should be considered whether the task should be transferred to another actor. Apart from the specified overall tasks, the Competence Team should be requested together with the for Education to develop and spread material concerning methods for work in schools which should aim to prevent forced marriage, child marriage and honour-related violence and oppression. The Competence Team should also lead efforts to produce methods material for work on the question of marriage against a persons own will and child marriage in different activities per- taining to parental support and in the introduction to society for newly arrived immigrants. In addition, the Competence Team should offer training courses for relevant authorities and organizations, including operations that provide emergency telephone services. The Competence Team should also produce a check list that can be used in conversations about marriage against a persons own will. Furthermore, the Competence Team should consider how it can create in accordance with a Norwegian model the preconditions for special follow-up agreements with people who abroad in spite of a fear of being married off against their will. Among the authorities that come into contact with child marriage and marriage against a persons will, the social welfare services play a main role. There have been clear deficiencies in the work of social services. We therefore propose that be instructed to carry out special supervisory efforts in the area in question. Apart from this, the Competence Team should play an important role in support of the development of work at social services departments. An essential issue is whether social services should initiate efforts addressed to families where there is a threat of forced marriage, child marriage or honour-related violence and oppression. Obviously knowledge of such family work and of the complications and risks associated with it must be very good. A recommended method should be drawn up for these efforts. The formulation of the methods should include an evaluation of the methods used today in, for example, , and . The Competence Team should lead the methods development work. In order to ensure that there are no financial incentives to for- going placement in sheltered accommodation for people who need it, the introduction of a state subsidy for the cost of this care should be considered. Recognition of foreign marriages, etc. The main rule is that a valid foreign marriage is recognised here in . It was easy up to 2004, even for a person with strong ties with , to evade the Swedish impediments to marriage by marrying abroad.