Marriage and Civil Partnership (Minimum Age) Bill

Tim Loughton Excerpts

Committee stage
Wednesday 12th January 2022 Public Bill Committees

[Mrs Pauline Latham (Mid Derbyshire) (Con)]

It is an absolute pleasure to serve under your chairmanship, Sir George, and to bring the Bill through Committee. I have been working on it for more than four years, so it is good to be at this stage with Government and cross-party support. This is a groundbreaking piece of legislation that will affect millions of young people over time. I am delighted to be at this stage.

I will deal with clauses 1 to 9 and the schedule together. The provisions end child marriage in England and Wales. They do so first by removing the ability of parents or a court to consent to 16 or 17-year-olds entering into a marriage or civil partnership. Secondly, they extend existing forced marriage legislation by making it a criminal offence to arrange the marriage of an under-18 even if violence, threats or another form of coercion are not used. Those provisions are targeted at unofficial, non-binding marriages that are beyond the reach of the change to the legal age of marriage. Together, the changes will end child marriage in this country.

The number of people marrying legally in England and Wales at 16 or 17 is small and continues to decline. Of nearly 235,000 marriages in 2018, only 134 involved one or both persons aged 16 or 17. Despite the low numbers, there remains undeniable concern that our law should not allow children to enter marriage under any circumstances. Research has shown that child marriage is often associated with leaving education early, limited career and vocational opportunities, serious physical and mental health problems, developmental difficulties for the children born to young mothers and an increased risk of domestic abuse.

On Second Reading, I set out some of the harrowing and inspiring stories of child marriage that have been shared with me since I began this project. In particular, the story of Payzee Mahmod, who was subject to child marriage in this country, is a powerful reminder that overall statistics are not the most important metric in this discussion. Every single child matters and ought to receive our protection. Protecting children is our obligation and our priority. The United Nations Committee on the Rights of the Child recommends that there be no legal way for anyone to marry before they turn 18, even with parental consent.

The fact that it is possible to marry at 16 sets the wrong example, both at home and abroad; having laws that enable child marriage weakens our voice in discussions with other countries and damages efforts to end child marriage globally. This is an area where we should lead by example, and the Bill will enable us to do that.

Setting the age of marriage at 16 was a decision made in 1929, when life was very, very different. Children often went to work at 14, as my mother did, and life expectancy was 20 years lower. Now, children in England must remain in education or training until they are 18, and couples are choosing to marry much later. We must celebrate the improvements we have made to quality of life and ensure that our laws align with that.

Increasing the minimum age of marriage to 18 is a necessary condition for ending child marriage in this country, but not a sufficient one. It will ensure that legal marriages cannot happen before the parties turn 18, but it can do nothing about those marriages enacted in traditional and some religious settings that are not recognised by the law of England and Wales, but are regarded just as much as a marriage by the parties, their families and their communities. Those marriages can have all the disadvantages for the children involved that legal ones do, and arguably more; not only can the parties be under the age of 16, but they fail to benefit from the legal protections inherent in marriage law.

In 2020, the Government’s Forced Marriage Unit provided advice and support in 113 cases involving the actual or potential marriage of a child aged 15 or under. The charities I work with have supported girls as young as seven who have been married in religious or cultural ceremonies in the UK. The Bill therefore extends the offence of forced marriage to cover all attempts to make a child under the age of 18 enter into a marriage, whether or not that marriage would be legally binding.

The offence as it stands covers cases where a parent or other third party uses violence, threats or another form of coercion to cause a child to enter into a marriage. It does not cover situations where a parent or other third party causes a child to enter into a marriage if coercion is not used. The Bill closes that loophole by making it an offence to cause an under-18 to enter into a marriage in any circumstances.

The distinction between the marriage of a child that involves coercion and one that does not is often false. Children may not realise that they have a choice as to their marriage partner. They may not realise that they can resist, or they may be too afraid to do so. In such cases, the parent would have no need to use coercion. This is not just a theoretical gap; we have heard from the Forced Marriage Unit, the police and charities of cases where marriages have been arranged for children who are in this position. Ultimately, children can be put in the impossible position of either “consenting” to a child marriage, or testifying against their parents. That is why it is so crucial that we automatically categorise any marriage involving a child as a forced marriage—to close this loophole and ensure that all children are protected from all forms of marriage.

Having given that background, I turn to the clauses. Clause 1 increases the minimum age of marriage in England and Wales to 18. It amends the Marriage Act 1949 so that a marriage solemnised where one party is under the age of 18 is void. It also removes all provision for 16 to 17-year-olds to marry with parental or judicial consent. It applies both to civil ceremonies and religious ceremonies that take place in registered religious buildings such as churches and mosques. The clause does not make specific provisions relating to marriages that take place abroad. However, it is anticipated that, following the changes made by the Bill, the common law in England and Wales will not recognise marriages that take place abroad involving under-18s where either party is domiciled in England and Wales.

The Bill will not change the age of marriage in Scotland or Northern Ireland, as marriage is a devolved matter. Therefore, the age of marriage will remain 16 in Scotland, and 16 in Northern Ireland with parental or judicial consent, although I believe that Scotland is looking at moving the age to 18 and Northern Ireland is considering it by consulting.

Clause 2 expands existing forced marriage legislation to ensure that it is always illegal to arrange the marriage of a child, even where no force or coercion is used. Subsection (2) amends section 121 of the Anti-social Behaviour, Crime and Policing Act 2014, “Offence of forced marriage”, by inserting a proposed new subsection (2A) which would criminalise any conduct that is for the purpose of causing a child to enter into a marriage before their 18th birthday.

Clause 2(3) would amend section 121(3), under which, as it stands, it is an offence to deceive someone into leaving the UK so as to force them into marriage. The clause would expand the scope of that offence to encompass the new, non-coercive behaviour in proposed new subsection (2A). It would therefore be an offence to deceive a child into leaving the UK for the purpose of causing them to marry, even when no actual coercion was involved upon the child’s arrival in the foreign country.

Clause 2(4) would insert proposed new subsection (5A) into the 2014 Act to clarify that “child” means a person under the age of 18. Subsection (5) would extend section 121(6). Subsection (6) of that existing section provides that the offence of forced marriage is committed even if the perpetrator uses coercive behaviour against someone other than the person whom they intend to force into marriage. Clause 2 would provide that that applies equally to the new, non-coercive behaviour under proposed new subsection (2A).

Clause 2(7) would insert proposed new subsection (7A), which would exclude from the new offence conduct that causes 16 and 17-year-olds to enter into a marriage in Northern Ireland or Scotland. That reflects the fact that in Scotland it remains possible for 16 and 17-year-olds to marry in all circumstances, and in Northern Ireland if their parents or a court consent.

Aside from the Scotland and Northern Ireland exemption I have just set out, clause 2 would inherit the existing provisions of the forced marriage offence in terms of definition of marriage, territorial scope and sentencing. The offence therefore applies to any religious or civil ceremony of marriage, whether or not it is legally binding, and carries a maximum sentence of seven years.

Clauses 3 and 4 are both concerned with amendments to the Civil Partnership Act 2004.

[Tim Loughton (East Worthing and Shoreham) (Con)]

I congratulate my hon. Friend on this important Bill. I welcome her to the club of someone who will have a private Member’s Act amending the Marriage Act 1949.

May I ask for two points of clarification? I am pleased that she has applied the measure to non-formal religious marriages. First, will she clarify whether the marriage of someone of 15 or 16 in Scotland or Northern Ireland who gets married without coercion, but with the approval of parents, will be recognised in England and Wales? Secondly, given this important legislation, does she now think that there are other areas of this whole grey area of what constitutes a child—16 or 17, up to 18 —that the Government need to look at as well?

[Mrs Latham]

The answer to the first question is yes, such a marriage would be recognised, because it took place in part of the United Kingdom, and the law is devolved. The answer to the second question is yes, I think that the Government need to look at everything to do with a child’s rights up to the age of 18. Perhaps the Minister will take that back to Government for them to look at all sorts of things that happen at all sorts of different ages, so that we know where children can and cannot do things. I think that would make it much simpler. I am sure that my hon. Friend will be pleased to know that the measures affect the Civil Partnership Act 2004, too, so the effect on heterosexual marriages and civil partnerships will be equal, which is really important.

Clause 3 increases the minimum age of civil partnerships to 18 in England and Wales, and it amends the 2004 Act so that 16 and 17-year-olds are no longer eligible to enter a civil partnership. It also removes all provisions for 16 and 17-year-olds to enter a civil partnership with parental consent.

Clause 4 amends the Civil Partnership Act so that where two people register as civil partners in Scotland or Northern Ireland, the partnership will be void if at the time of registration either of the two people were domiciled in England and Wales and if either was under 18. The clause also provides that if two people convert their marriage into a civil partnership under Northern Irish regulations, it will be void if either of the two people were domiciled in England and Wales and if either was under 18 when the marriage was solemnised. I think I was unclear with my hon. Friend the Member for East Worthing and Shoreham. Two under-18s who live in Scotland can still be married, and the marriage would be recognised in this country, but if either of them is domiciled in England, the marriage would not be recognised.

Finally, clause 4 also contains the only amendments in the Bill that extend to Scotland and Northern Ireland, and it therefore forms part of the law of Scotland and Northern Ireland. It amends section 217 of the Civil Partnership Act so that where a person domiciled in England and Wales registers an overseas relationship, that relationship will not be treated as a civil partnership if either party was under 18.

Clause 5 gives effect to the schedule, which makes minor and consequential amendments to existing legislation. The amendments that are set out in the schedule are required as a result of the changes to the law made by clauses 1 to 4. The amendments, which affect the Marriage Act 1949, the Marriage (Registrar General’s Licence) Act 1970, the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004, repeal and amend provisions relating to marriage and civil partnership of under-18s, which are no longer necessary or appropriate.

Clause 5 also gives the Secretary of State a power, by regulation, to make further consequential amendments. Regulations made under the clause may include transitional or saving provisions, and may amend, repeal or revoke secondary and primary legislation, which, for these purposes, includes the legislation of the devolved Administrations. The Ministry of Justice and the Home Office believe it necessary to take such a power to avoid any implementation difficulties or legislative inconsistencies—beyond those addressed in the schedule—that may otherwise arise. Amendments to primary legislation in the exercise of that power will be subject to the affirmative resolution procedure. Amendments to secondary legislation will be subject to the negative procedure.

Clause 6 sets out the territorial extent of the Bill. The Bill extends to England and Wales only except for clause 4(3) and clauses 5 to 9, which also extend to Scotland and Northern Ireland. The substantive changes made by clauses 1 to 4 relate to the legal age of marriage and civil partnership in England and Wales only. However, as I have mentioned, one amendment that extends to Scotland and Northern Ireland is required. It relates to the recognition of an overseas relationship where one of the parties was domiciled in England and Wales when the overseas relationship was registered.

Subsection 6(2) provides that clause 5 relating to the power to make consequential amendments, clause 6 itself, clause 7 on commencement, clause 8 on saving provision and clause 9 containing the short title all form part of the law of the United Kingdom.

The matters to which the provisions of the Bill relate are not within the legislative competence of the Scottish Parliament, the Welsh Parliament or the Northern Ireland Assembly, and no legislative consent motion is being sought in relation to any provision of the Bill. If there are amendments relating to matters within the legislative competence of the Scottish Parliament, or the Northern Ireland Assembly, the consent of the relevant devolved legislatures will be sought. Marriage law is not a devolved matter for the Welsh Parliament.

--- Later in debate ---

The Bill will massively help vulnerable children and protect them, but there is a swathe of vulnerable adults with marginal capacity to consent to sex or marriage. We do not know if they are being protected sufficiently, or if we have limited their freedoms too much, in terms of the way the common law tests to marry or to have sex are operating. Once my hon. Friend the Member for Mid Derbyshire has got the Bill over the line and on to the statute book, I hope hon. Members on this Committee would be keen to take the next steps to look properly at how the common law tests for marriage and for sex are working, and to see if we can do something to improve them.

[Tim Loughton]

My hon. Friend is making some good points about this subject, about which he might like to introduce a private Member’s Bill. We are dealing only with the chronological definition of children, but there is a real problem. We know about the low rape convictions in this country—I apologise that I have to leave this Committee to go to the Home Affairs Committee, which is looking into this matter at the moment—but they are just the cases that come forward. Those who do not have capacity come forward to declare that they have been the victim of sexual offences even less often.

I have tried to allude to the definition of children, their rights and the responsibilities of adults towards them, but this whole area needs to be cleared up. Even if my hon. Friend the Member for Runnymede and Weybridge is not lucky enough to be chosen in the private Members’ Bill ballot, as my hon. Friend the Member for Mid Derbyshire and I have been in the past, I am sure the Home Office Minister here today will take away these important matters and come back with Government-backed legislation, in due course.

[Dr Spencer]

I thank my hon. Friend for that brilliant intervention. It was prescient, as I was about the say that there is an even bigger problem in the interaction between civil cases, about people who lack capacity to consent to sex, and criminal cases. That will be difficult to deal with, but we need to do that. There are different thresholds, and it is unclear how civil and criminal cases interact.

There is also the situation where one of the partners in a marriage loses capacity to consent to sex, but sexual relations continue. How do we, as a society, want to think about that? I am sure everyone has deeply held personal opinions on this, but I have heard what I think are awful stories—for example, a person in a couple developed dementia and lost the capacity to consent to sex, but the couple continued to have sexual relations. Social services got involved and it all got pretty horrible. These are big issues.

The last thing I want to do, however, is to hold up the Committee or prevent the Bill from making progress; that is why I declined proposing putting anything in the Bill, but I hope that the Minister has heard the points made, and that we can get something moving, using the Bill as a springboard to the next step in helping people in such situations.