The Forced Marriage (Protection and Jurisdiction)(Scotland) Act 2011 has been passed now for a year. It appears that a couple of cases have been presented in Glasgow & Edinburgh which are raised by a local authority with the assistance of Shakti Womens Aid. Neither as yet have been concluded, although interim relief orders have been granted. In an article in the Journal of the Law Society of Scotland issued this month, an update is provided on the summary applications with clarification of the test for interim and final orders.
Section 1 of the 2011 Act allows the Court to make the order for the purposes of protecting a person from (a) being forced into a marriage or from any attempt to force the person into marriage or (b) who has been forced into marriage. Section 5 states that to grant the interim order it must be shown that it is equitable to grant having regard to all the circumstances including the risk of significant harm if the order is not made. However, critism is brought against the drafters of the 2011 Act in respect of the final order stage, stating that "the 2011 Act could have been more intelligibly drafted in defining the test for the granting of the final order". It is observed that within the 2011 Act, the Court is simply directed to "have regard to all the circumstances including the need to secure the health safety and well being of the protected person".
The article makes the point well, drawing comparison to the Forced Marriage (Civil Protection ) Act 2007, which covers the rest of the UK where it permits orders to be granted where it is "just and convenient having regard inter alia to any risk of significant harm".
With decisions also cited from Northern Ireland and English, which have found in favour of the Petitioners granting protection orders, it is welcome news to see some progression in this field, with hopefully some Scottish decisions issued in the near future providing clarification of the court's interpretation.