sou · H5B396 · 2017-12-05 00:00:00 — Även den svenska bedömningsmarginalen enligt , det allmänna skyddet för att motverka barnäktenskap och att personerna kan leva som sambor talar för att undantagsbestämmelsen inte bör vara tillämplig på den nu föreslagna bestämmelsen. Det kan dock inte helt uteslutas att situationer kan uppkomma där ett utländskt barnäktenskap bör erkännas för att ska leva upp till sina internationella åtaganden. Det som därvid möjligen skulle kunna aktualiseras är EU-medborgarens rätt till fri rörlighet (se vidare avsnitt 6.9.3). Sammanfattningsvis innebär det nu anförda att skälen för att behålla ventilen oförändrad vad gäller barnäktenskap med anknytning till och låta den omfatta den föreslagna utvidgningen är mycket svaga. Utredningen har övervägt att inte låta undantagsbestämmelsen vara tillämplig i sådana fall, vilket i så fall enkelt kan åstadkommas genom uttryckliga undantag för dessa barnäktenskap i det sista stycket i bestämmelsen. Utredningen har emellertid stannat för att trots allt låta undantagsbestämmelsen alltjämt omfatta utländska barnäktenskap med anknytning till och barnäktenskap som omfattas av den föreslagna utvigningen. Det som motiverar det ställningstagandet är att annars kan riskera att komma i konflikt med sina åtaganden enligt internationella konventioner och EU-rätt. The basic premise in Swedish marriage law is that a person under the age of 18 has not reached the maturity required to independently take a position on the kinds of personal and financial issues that arise in marriage. For this reason, a person who is under the age of 18 may not enter into marriage in . In many other countries, including in the Nordic region and the rest of Europe, however, it is still possible to enter into marriage before the age of 18. Under the United Nations Convention on the Rights of the Child (1990:20), States Parties must take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. The UN’s of the Child has identified early marriage as such a harmful practice, because marriage and pregnancy at a young age can entail health risks for girls, and also prevent them receiving an education. Following legislative amendments in 2014, children are not permitted to marry in . Moreover, the scope to recognise marriages entered into abroad by children with ties to has largely disappeared. However, in the case of marriages entered into abroad by partners with no ties to , these should, as a general rule, be recognised (Chapter 1, Section 8a of the Act concerning Legal Relationships relating to Marriage and Guardianship (1904:26, p. 1)), and the scope to deny recognition is restricted under current legislation. Recognition of the marriage can only be denied in cases of forced marriage (Chapter 1, Section 8a, first paragraph, point 2 of the Act) or if it is considered manifestly incompatible with the fundamental principles of Swedish law, known as ordre public, to recognise the marriage (Chapter 7, Section 4 of the Act). The Inquiry’s terms of reference were adopted at a government meeting on 9 2017. An Inquiry Chair was tasked with investigating whether there is a need for measures aimed at ensuring strong protection against child marriage, forced marriage and so-called ‘honour’ crimes. Supplementary terms of reference adopted at a government meeting on 29 2017 gave the Inquiry the additional task of analysing and considering the international dimension of forced marriage and female genital mutilation. This interim report addresses a first part of the remit, in which the Inquiry analyses and considers further restrictions on the possibilities to recognise child marriages entered into abroad. Under the terms of reference, regardless of its position on the substance of the matter, the Inquiry should propose legislative amendments such that child marriages entered into abroad are not recognised if one of the partners was under the age of 18 when either of them came to . According to its terms of reference the Inquiry is to present its final report no later than . Incidence of child marriage It is impossible to know the exact number of child marriages worldwide because many of them are not registered or are informal. But according to the latest statistics, more than 700 million women worldwide entered into marriage as children. than one in three – around 250 million – were younger than 15. In the poorest countries, 41 per cent of girls enter into marriage before their 18th birthday (see fact sheet from ). The UN estimates that 14 million children will enter into marriage annually up to 2020. In the Global Goals, the UN member states have decided that child marriage should be eliminated by 2030. Marrying children off at a very young age is most common in and sub-Saharan . However, child marriage also occurs in the Middle East, North and other parts of . Girls also commonly enter into marriage between the ages of 16 and 18 in Eastern Europe, Latin , and a number of states of the . In recent years, a large number of people have arrived in from other countries, and many of those arriving are children. Some of those children have entered into marriage abroad. ’s report entitled Är du gift? Utredning av handläggning av barn som är gifta när de söker skydd i (Are you married? Investigation of the processing of children who are married when they seek protection in (2016)) found that 132 children were married. It is feared that there is a large number of hidden cases among asylum seekers, and so the number of married children is likely to be considerably higher. Of the 132 children identified, 129 are girls and 3 are boys. The majority of these children are aged 16–17. Almost all of them have their origins in , or , and around one third of them have children of their own. Most of them sought asylum after 1 2015, and they are spread across 80 municipalities. The Inquiry consulted Statistics on the number of children aged 15–17 registered as married between 1 2014 (the date on which the exemption from impediment to marriage was abolished) and 30 2017. The search identified 109 children registered as married during the stated period, of whom 95 are girls and 14 are boys. The fact that the number is lower than emerged in the ’s report suggests that some of the children claimed to be married have never been registered as formally married in the population registration database. Some other starting points Child marriage is not only a national problem; it is a global problem that concerns every country in the world. Millions of people, including children who have entered into marriage, have been forced to flee their home countries and have ended up in countries in Europe whose culture differs widely from their own. The issue of child marriage has attracted increasing attention, primarily because of this. Attempts to tackle the issue of child marriage have been made for many years in the international arena. The UN’s Convention on the Elimination of All Forms of Discrimination against Women (1980:8), which is almost , contains a provision on a minimum age for marriage. Discussion of child marriage in began in the early 1970s and has intensified in the last 10–15 years. Today, it is also clear that, in many cases, there is a link between child marriage and forced marriage, and between child marriage and ‘honour’-related violence and oppression (see also SOU 2012:35, p. For a long time, the Swedish provisions on recognition of marriages entered into abroad focused on recognising such marriages as far as possible. A growing realisation that these liberal rules made it easy for people to circumvent the Swedish impediments to marriage – including being under age – led to the introduction in 2004 of the exception in Chapter 1, Section 8a of the Act concerning Legal Relationships relating to Marriage and Guardianship, alongside the more general ordre public (Chapter 7, Section 4 of the Act). Since then, the general rule has been that child marriages and other forms of marriage that contravene the Swedish impediments to marriage and where at least one of the partners had ties to (through citizenship or habitual ) when the marriage was entered into are not recognised. At the same time, a possibility was introduced to make exceptions from this prohibition where there are exceptional grounds to do so (Chapter 1, Section 8a, second paragraph of the Act). Since 2004, a marriage that is valid under foreign law is not recognised in if it is likely that it was entered into under coercion. This applies regardless of the ages of the partners and even if both lacked any ties to when the marriage was entered into (Chapter 1, Section 8a, first paragraph, point 2 of the Act). In 2014, the Riksdag adopted a number of legislative amendments aimed at further strengthening protection against child marriage and forced marriage. The possibility for children in to receive an exemption to enter into marriage was abolished, and the scope to make exceptions from the prohibition of recognition was restricted so that it applied only where there were exceptional grounds to recognise the marriage. At that time, criminal law provisions were also introduced in the form of two new criminal offences: coercion to marry (Chapter 4, Section 4c of the Swedish Penal Code) and deceiving another into travelling abroad for the purpose of forcing them into marriage (Chapter 4, Section 4d of the Swedish Penal Code). Stricter rules are proposed with regard to recognising marriages entered into abroad by children with no ties to Under current rules, there is limited scope not to recognise a marriage where the partners lack ties to and were over the age of 15 but under 18 at the time of marriage (recognition can only be denied if it can be plausibly demonstrated that it is a case of forced marriage under Chapter 1, Section 8a, point 2 of the Act). As early as the 2004 legislation, the issue was raised of whether ties to should be required to deny recognition of child marriage. The Government then stressed that it would be too far-reaching to allow the prohibition of recognition to include marriages entered into in accordance with non-Swedish norms, if, at the time marriage was entered into, there was no reason for the partners to take Swedish norms into account (Government 2003/04:48, p. 29 ff). This would typically involve a couple who entered into marriage in another country and who much later acquire habitual here. The importance of ties to with regard to whether a marriage entered into abroad should be recognised here was also considered in the legislative amendments to the Act in 2014. considered that the boundaries set in 2004 were essentially correct (Government 2013/14:208, p. 27 ff). Precisely the serious consequences of denying recognition have been put forward as an important motive for, to a large extent, recognising marriages entered into abroad (Government 2013/14:208, p. 27 ff). Apart from the purely emotional consequences, denying recognition may have consequences in family law matters – such as distribution of estate and inheritance matters – and also with regard to the process in the case of the right to family reunification under the Aliens Act (2005:716). Thus consequences may be far-reaching and burdensome if a person who has entered into marriage in their home country, and who has assumed that he or she is married, cannot expect to be considered as married also in other countries. The emergence of a lopsided marriage, i.e. that a person is regarded as married in their country of origin, but not in, for example, in the country where he or she is seeking asylum, can also be problematic for the individual. Considerations and proposals concerning children must be based on the Convention on the Rights of the Child. The requirements of ties to currently contained in Chapter 1, Section 8a of the Act can be questioned based on several articles in the Convention. The Convention on the Rights of the Child requires, further, that States Parties work to combat traditional practices prejudicial to the health of children (Article 24.3). Child marriage has been identified as such a practice. is obliged to ensure the fulfilment of the rights of children in the country as laid down in the Convention on the Rights of the Child. The principle of non-discrimination (Article 2) states clearly that all children within the state’s jurisdiction are to enjoy the protection guaranteed under the Convention on the Rights of the Child. However, the consequence of legislation with requirements of ties to as in Chapter 1, Section 8a, point 1 of the Act is that not all children within the state’s jurisdiction enjoy the same protection against child marriage. The Ombudsman for Children in has highlighted this and believes that it is unacceptable that has different yardsticks for whether a marriage is approved depending on whether the child is habitually resident in or has come here seeking asylum (see the written communication by the Ombudsman for Children in to the Minister for , ref. no. 3.5.1:0494/16). Concern for the best interests of all children, regardless of origin, and recent developments in society, with an increased number of children – without previous ties to – who have already entered into marriage when they came in , means that it is necessary to ensure that legislation is clear and adequate. The starting point is that children should not live in marriage, and that all children have the same right to support and protection. Rules on impediments to recognition of marriage should be extended to cover cases in which, regardless of the partners’ ties to , one of the partners was under the age of 18 when either of them came to Under the terms of reference, regardless of its position on the substance of the matter, the Inquiry should propose legislative amendments such that child marriages entered into abroad are not recognised if one of the partners was under the age of 18 when either of them came to . Denying recognition of a marriage entered into abroad means that it lacks legal effect in . As mentioned previously, the serious consequences of denying recognition have been put forward as an important motive for recognising, to a large extent, marriages entered into abroad. A minor whose marriage is not recognised in this country cannot, for example, assert their right to maintenance, whether or not the minor lives together with his or her partner, and a minor who wants to leave his or her partner does not have any right to take over a shared home or household goods under conditions other than those ensuing from the special provisions on co-habiting. does the minor have a legal right of inheritance from their partner if the marriage has not been recognised. The Inquiry has described these and some additional crucial legal effects in more detail in Chapter 6. However, this should not warrant the conclusion that a minor would be worse off as unmarried than as married, and that this could be a reason for continuing to recognise child marriages entered into abroad. The starting point for Swedish legislation is that children are primarily to be protected by the rules aimed at safeguarding the child’s right and interests, and not by marriage law. This approach is also consistent with the child perspective that is to inform the legislation. In principle, there is no need for children to be covered by the legal effect of a marriage as described (see also Government 2003/04:48, p. 28 ff). Inheritance law is largely the only area in which the rights of the child are not safeguarded by other legal rules than those ensuing from the legal effect of marriage. The child loses its right to inherit from their partner should the foreign marriage not be recognised in . However, consequences are not expected to be too far-reaching, since, as a general rule, the partners have not have the opportunity to adapt to the marriage over a long period of time. The overriding interest of combating child marriage also more weight than inheritance rights. A parallel can be drawn to the Aliens Act (2015:716). For many years now, the principle has been that marriage with persons under the age of 18 normally does not constitute grounds granting a permit through ties to . In matters concerning permits on grounds of ties through marriage, it has previously been stated that a general acceptance of marriage with minors who are foreign citizens would be a blatant contravention of fundamental social values with regard to children’s and young people’s rights to independent development and right to education, their right to take decisions of vital importance for themselves and efforts to promote gender equality (Government 1983/84:144 p. Statements in the preparatory materials must be seen as a determination whereby any religious or cultural considerations are subordinate to the individual child’s right to the protection that the law is intended to provide. How the individual, in practice, experiences the consequences of denied recognition of a marriage may be difficult to predict. On the one hand, it may lead to the child feeling relieved. On the other hand, the young person may feel vulnerable, resulting in inadequate support from their immediate surroundings and cultural homelessness. The responsibility of the authorities for children’s wellbeing, protection and guidance should therefore be emphasised. The Inquiry will return to this and the procedures for collaboration between the agencies in the final report. In light of the above, the Inquiry proposes that impediments to recognition of child marriage should be extended to cover cases in which the partners do not have any ties to , if one of the partners was under the age of 18 when either of them came to . The new provision should be included as a separate point under Chapter 1, Section 8a, first paragraph of the Act. General non-recognition of child marriages entered into abroad would be too far-reaching As an alternative to current rules, the Inquiry has also considered a general order that rejects all types of child marriage, regardless of the partners’ ties to , similar to the procedure that exists for foreign forced marriages (Chapter 1, Section 8a, first paragraph, point 2 of the Act). This would be done by removing the requirement concerning ties to contained in Chapter 1, Section 8a, first paragraph, point 1 of the Act. Such a measure would mean that the interest of combating and, in the long run, eliminating child marriage would be safeguarded to a greater extent. This should be set against the consequences of the fact that rejection may be intrusive for the individual (Government 2003/04:48, p. A general prohibition of recognising child marriages entered into abroad would also affect child marriages where the urgency to reject them is not as strong. This would typically involve a couple, with no previous ties to , one or both of whom may have been under the age of 18 when they entered into marriage, but who only much later acquired habitual here. They did not have reason to take into account Swedish norms, or the effects of being denied recognition of their marriage, and have long adapted to life as a married couple. All in all, the Inquiry believes that allowing the prohibition of recognition to include marriages entered into abroad in which both partners were adults when they came to would be too farreaching. General non-recognition of child marriages entered into abroad may also conflict with the provision in Convention on Human Rights on the right to respect for private and family life (Article 8). The Inquiry has therefore chosen not to submit such a proposal. The proposal that child marriages are not recognised if one of the partners was under the age of 18 when either of them came to , in the view of the Inquiry, strikes a good balance and will ensure that a child who comes to will also receive strong protection against child marriage. Exception provision on exceptional grounds should remain and also include the proposed expansion The 2014 legislative amendments mean that the scope to recognise marriages entered into abroad by children with ties to has largely disappeared. The same applies to forced marriages, regardless of ties to . The only scope for exception from the prohibition of recognition is on exceptional grounds (Chapter 1, Section 8a, second paragraph of the Act). Since entering into child marriage is not permitted in any case in , it could be possible to further limit the possibility of recognising child marriages entered into abroad by partners with ties to by abolishing the exception provision concerning exceptional grounds. In its most recent legislative work, the Government considered removing the get-out , but did not find grounds for such a change. The Government considered that it cannot be ruled out that in the future, in exceptional cases, there may be reason to recognise a child marriages entered into abroad (Government 2013/14:208, p. , which examines whether a marriage entered into abroad is to be recognised in connection with population registration, has made it clear that since the 2014 legislative amendments, the Agency has not found exceptional grounds in any case. The need for such a get-out can thus be called into question. Another reason for calling into question the need for such a is that no concrete examples have been indicated in the earlier legislative work as to when the exception provision may be applied. The prohibition of recognition of child marriage without exception may, however, lead to effects that, in individual cases, may not be acceptable in an assessment based on the provision contained in Article 8 of Convention on Human Rights on the right to respect for private and family life. In the view of the Inquiry, proposing a general abolition of the possibility of making an exception from the prohibition of recognition would therefore be too far-reaching. The question remains whether the exception provision should also apply to the rule now being proposed regarding impediments to recognising marriages entered into abroad between partners with no ties to . The scope for recognising such child marriages pursuant to the current rule on exceptional grounds is likely to be extremely limited. In these cases, it is possible to disregard the provision in Convention on Human Rights on the right to respect for private and family life, or the existence of serious consequences, since the proposal only covers partners where either of them was under the age of 18 when either of them came to . The duration of the marriage, and thereby family life, can then naturally only have been a short period, and the partners can therefore not be considered to have adapted to marriage in the same way as if they had been married for a long time. The Swedish of appreciation under Convention on Human Rights, general protection to combat child marriage and the possibility for the individuals to live as cohabiting partners also suggests that the exception provision should not be applicable to the provision now being proposed. However, it cannot be entirely ruled out that situations may arise in which a child marriage entered into abroad should be recognised so that can live up to its international commitments. EU citizens’ right to free movement (see also Section 6.9.3) could possibly be relevant in this context. In conclusion, what has now been put forward means that the reasons for maintaining the get-out unchanged with regard to child marriage with ties to and allowing it to cover the proposed expansion are very weak. The Inquiry has considered not allowing the exception provision to apply in such cases, which could easily be achieved by explicit exceptions for such child marriages in the last paragraph of the provision.