Honour Based Violence Symposium

Honour Based Violence: The Legal Framework and Response in UK Law

Usha Sood, Barrister, Trent Chambers, Nottingham
(former Senior Lecturer in Law at Nottingham Trent University)

This presentation considers those particular enforcement and litigation issues that arise from domestic abuse based on shame/honour among Asian, and other ethnic families within various community variants and demographic areas in the in the U.K.

Case law, and research undertaken over the years within the courts, services and women’s refuges in the U.K, involving the police, Home Office and legal professionals, demonstrates  a continuing deficit of understanding, redress and resolution.

It remains a cultural norm of many societies for familial and communal shame over marital breakup and litigation to be reflected against the wife/mother/daughter-in-law, regardless of this being necessary for her matrimonial rights and protection.  Divorced/separated women are often shunned even by their natal families; no-one will openly approve of her actions.  The husband will often have manipulated and convinced relatives of her wrongdoing, and will immediately remarry in the country of ancestral origin.  Where the wife is related to the husband (cousin/other “domino” marriages ), a sharper divide consumes the family system, with most family members, even from the wife’s natal family supporting the husband.

The precarious position for separated/divorced Pakistani women on return was recently evidenced by Prof Menski of SOAS, (a leading UK socio-legal expert in Islamic and South Asian matters), and accepted by the Court of Appeal in the recent case of SN (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 181.  The Court adopted his views of the disadvantaged position of divorced or single mothers in Pakistan:

“[she] would have to face Pakistani Muslim society without male protection… [she] would find it difficult to protect herself, on her own, in such a male-dominated society, against unwanted advances by such men, or even rape…The fact that [Ms N] does not have any close male relative to support and protect her adds most severely to her vulnerability.”

K (Children), Re [2004] EWCA Civ 1181, per Lord Justice Wall at para 66:

“She [the mother/wife] was living in a household and a culture where, inevitably, her in-laws and her husband dominated. We do not find the difficulties she has encountered in making a break from that environment, and from her husband in particular in the least surprising.”

There is a need for effective access to support and legal services for victims, who may be male, as well as insight into the relevance of the concept of honour (often described as izzat or sharm) in relation to non-disclosure and disempowerment.  The authorities must be wary of community mediation.

Such honour wrongs occur not only within Asian communities, but also amongst other cultures, for example, among Eastern and Southern European societies.

Knowledge of the hierarchical control, stigma, shame and honour are integral to an understanding of the nature of the occurrence, and proper investigation of such offences, and vital to ensure that cases are properly pursued with appropriate evidence, with witnesses free to speak out at trials.  Honour crimes in the UK are known to be perpetrated in the hundreds every year, and the problem is becoming more open: the first and foremost is to adopt a definition that encompasses the widest range of such inimical conduct.

UK DEFINITION

The Home Office definition of Domestic Violence is:

“Domestic Violence [and Domestic Abuse] includes any incident of threatening behaviour, violence or abuse, (physical, psychological, sexual, financial or emotional) between adults who are or have been intimate partners or are family members, regardless of gender or sexuality.”[1]

“This includes issues of concern to black or minority (BME) communities such as so called ‘honour killings'”[2].

“The Government have introduced trained domestic violence prosecutors, specialist domestic violence courts and extra support for victims, which has resulted in the successful prosecution rate for domestic violence increasing from 46 per cent in 2003 to 69 per cent by December 2007.”

“I endorse the Government’s approach as recently laid out in the Government Equalities Office report, “Tackling Violence Against Women.

“The general challenges for women suffering from domestic violence are immense, but they are added to and intensified for black and minority ethnic women, who have to deal with a host of additional difficulties. Some of these are forced marriages, fear of honour killings and the social evils of the caste system, the dowry system, human trafficking, immigration practices and cultural pressures. For those coming from outside the UK, there is also the problem of language barriers and a lack of knowledge of the system. All these pressures can result in BME women being forced into exploitative cheap labour and, in extreme circumstances, prostitution.

“…Government initiatives taken to support vulnerable women and children, include the joint work of the Foreign and Commonwealth Office and Home Office Forced Marriage Unit. The Forced Marriage (Civil Protection) Act 2007 (in effect since 2008) is intended to provide civil protection for people threatened with forced marriages, the establishment of the UK Human Trafficking Centre in Sheffield and the £2.4 million allocated over the next two years to the POPPY project, which provides safe accommodation and support for victims of trafficking escaping from prostitution. The Government’s Ethnic Minorities Innovation Fund is helping to fund a number of accessibility-related services on the ground, including a holistic service for south Asian victims of violence against women.”[3]

The Forced Marriage Unit was established in 2005 as the Government’s one stop shop for dealing with domestic and international aspects of forced marriage casework, policy and projects. Recognising the need to prevent forced marriages from taking place in the UK, in 2007 the Unit issued specific guidelines for registrars.

“The Forced Marriage Unit received 5,000 enquiries and handled approximately 400 cases in 2007, 167 of which involved repatriation to the UK. We do not collate statistics on where forced marriages take place, but a new system to capture data on cases is being implemented this year.”

Relevant Legal Measures

1.  Criminal charges of assault, harassment, false imprisonment or more

2.  Setting aside reviewable disposions of matrimonial property, monies and assets (often to the husband’s family members) to defeat the wife’s claim for financial relief: Section 37 of the Matrimonial Causes Act 1973.

3.  Dowry (personal valuables including jewellery via the Torts (Interference with Goods) Act 1977)

4.  Civil claims for the statutory tort of harassment (Section 3 of the Protection from Harassment Act 1997), and/or for false imprisonment.

5.  Forced Marriage (Civil Protection) Act 2007 which has inserted new powers into the Family Law Act 1996 for the High Court or a county court to create a new forced marriage protection order (FMPO, to protect a person, including a minor child, from being forced into a marriage, or from any attempt to be so forced or to protect a person who has already been forced into a marriage.  A FMPO can be made by the court on an application or uncertain circumstances, even without an application being made.

Force is defined to include (but not limited to) coercion by threats or other psychological means.  The term “forced marriage” includes certain religious marriages that are not legally recognised in England.

A FMPO can contain any prohibitions, restrictions or requirements and other terms that the court considers appropriate.

A warrant can be issued to have the respondent arrested if he breaches the order and an application for a warrant can be made by an “interested party” (being the person protected by the order; the person who applied for the order; or any other person who has the leave of the court).

There are other measures which can be deployed in civil and criminal proceedings (including wardship).

[The family/civil court may need to join the in-laws as third parties]

In Gina Satvir Singh and Prithvipal Singh Bhakar and Dalbir Kaur Bhakar [2007] 1FLR 880, Recorder Timothy Scott QC noted the wider motivation of the claimant, suing under the statutory tort of harassment.  In Singh v Bhakar, the harassment constituted the deliberate abuse of a young Sikh woman (Gina) by her mother-in-law after Gina married into what she believed to be a modern and westernised Sikh family and joined her husband in his extended family home in London.  There was no application for an injunction included in the claim [there may be a punitive damages aspect to such a claim].

The Claimant successfully sued her former mother-in-law for damages for harassment towards her during the four month marriage to her son, and was awarded £35,000 damages.

Evidential Barriers

Difficulties have arisen in the recording, reporting and addressing of abuse for these women and some men, as well as children especially if they are even more vulnerable, as with ‘probationary’ immigrant spouses.  Many such women are more isolated, and may not be allowed out alone, often being accompanied to medical appointments to guard against disclosure.  Should she access a refuge, a victim faces further and future risk, and is likely to suffer further ostracism, and be unable to support or protect herself, with the no recourse to public funds barrier.  She may be susceptible to removal of her children, as she is often alleged to be an unfit mother.  A male victim is even less supported.

The victims are usually young women who are adjudged to have brought shame on their families by transgressing cultural and religiously defined moral rules.  However older women (and even men) may also be disenfranchised and ostracised by false allegations, sometimes on collective criminal complaints, or community pressure.

Examples include:

(i)    A young woman scalped for having an affair with a married man.

(ii)   Killed by her father for dating a non-Kurdish man.

(iii)  Many immigrant wives are intimidated/ duped into returning to their home countries where their passports (and often children) are removed, and they are abandoned.

(iv)  An elderly wife who left her marriage: the husband unilaterally removed all the parties’ assets and resources abroad, and remarried without a formal divorce.

The use of cultural expertise during investigation and litigation can assist, but is often overlooked. Equally, immigrant and recently settled communities need additionally to be facilitated towards integration, and to move away from cultural/religious based opposition to freedom of choice.

There is insufficient flexibility within the UKBA domestic violence concession, and Immigration Judges continue to disregard the obvious signs, and hardly appreciate the range of abuse.

No Recourse to Public Funds  

The spouse from abroad is solely dependent upon their British spouse for 2 years until they obtain Indefinite Leave to Remain, the application for which is also based on their spouse’s sponsorship, and is denied access to public funding such as state benefits, council housing etc.

It is possible to get around the ‘no recourse to public funds’ rules, and there are maintenance and accommodation overrides.

There is also little or no use of Family Law orders / proceedings (including matrimonial maintenance action against the British spouse).

Conclusion

Women, and other vulnerable individuals, face major barriers through their cultural roots, even as second generation individuals, in trying to achieve legal and social justice. Their silence and invisibility should not disentitle them to dignity, and their innate rights – not to be marginalised, stigmatised and denied their needs, even by relevant service providers and the law.

Recent Sources

The Times: May 22, 2010

The husband, wife and daughter of a British family who were ambushed and gunned down, allegedly by family members in a blood feud in a graveyard in Pakistan, were buried yesterday amid tight security.

Mohammed Yousaf, 51, his wife, Pervez Bibi, 49, and their daughter, Tania, 22, the mother of two young boys, all from Nelson, in Lancashire, had been visiting Jaurah in the district of Gujrat to attend a family wedding.

They were the victims of what police describe as honour killings after the arranged marriage of the couple’s eldest son, Kamar, with his cousin, Nabeela Mahmood, broke up, provoking a prolonged family dispute.

Another woman and one of the four attackers were also killed in the gunfire. Police, who have named the attackers as nephews of the murdered couple, have made two arrests. A fourth man remains on the run……The tragedy has highlighted the dangers faced by British families in some lawless parts of Pakistan, and more particularly the problem of blood feuds, which lead to thousands of killings each year. The three were said to have been sprayed by gunfire from a Kalashnikov.

Mr Yousaf, who works as a taxi driver and for a bed manufacturer, had allegedly been warned of the possible dangers but had shrugged them off.

Marriage among cousins is common in Pakistan, where divorce is considered to carry a social stigma.

There appeared little sign of the carnage to come when 200 guests gathered for the wedding ceremony between Mr Yousaf’s son Asad, one of three sons and three daughters, and his 24-year-old bride, Roma, at the Skyways Hotel, in Kharian, on May 2.

Mr and Mrs Yousaf stayed on after the wedding for a holiday while the rest of their extended family flew home. They were expected home on Monday. They had gone to the cemetery to say prayers at the grave of a family member.

The dispute arose after Mr Yousaf’s eldest son, Kamar, apparently split from his wife, Nabeela, after 12 years of marriage. The couple are said to have two daughters.

Nabeela’s brother is alleged to have harboured a deep resentment that led to what the police call a premeditated attack.

Muhammed Anwar, a witness, said that the family had just arrived at the grave and had begun praying when the first shots rang out. He said the attackers, in two distinct groups, appeared to fire indiscriminately.

Mohammed Iqbal, a family friend, said that the victims had been warned to stay away from the village because of the tensions surrounding Kamar’s marital break-up, although nobody had expected such a violent reaction, he said.

Family friends said that despite the marital breakdown Mr Yousaf continued to care for his son’s wife as one of his own. It is believed that Mrs Mahmood has sought refuge in a hostel in Manchester.

It is understood that around 70 family members flew to Pakistan to attend the funeral. Asad, the newly married son, had only been back in the UK for a day before the shooting.

A friend said: “Asad has flown straight back and is obviously distraught. He is absolutely disgusted by what has happened”.

http://www.timesonline.co.uk/tol/news/world/asia/article7133503.ece

The British Muslim parents of an autistic person, who wanted the right to take their son abroad, against the wishes of the local authority:   X City Council v MB & Ors [2006] EWHC 168 (Fam);

Honour/ Domestic Violence related research

  • Finney, A. (2006) Domestic violence, sexual assault and stalking: Findings from the 2004/05 British Crime Survey (http://www.homeoffice.gov.uk/rds/pdfs06/rdsolr1206.pdf)
  • Also available: Excel Data spreadsheets RDS Online Report 12/06. London: Home Office (http://www.homeoffice.gov.uk/rds/pdfs06/rdsolr1206tabs.xls )
  • Hester, M. and Westmarland, N. (2005) Tackling Domestic Violence: effective interventions and approaches Home Office Research Study 290. London: Home Office (www.homeoffice.gov.uk/rds/pdfs05/hors290.pdf)
  • Parmar, A., Sampson, A., Diamond, A. (2005) Tackling Domestic Violence: providing advocacy and support to survivors from Black and other minority ethnic communities Development and Practice Report 35, London: Home Office (www.homeoffice.gov.uk/rds/pdfs05/dpr35.pdf)
  • Parmar, A., Sampson, A., Diamond, A. (2005) Tackling Domestic Violence: providing advocacy and support to survivors of domestic violence Development and Practice Report 34, London: Home Office (www.homeoffice.gov.uk/rds/pdfs05/dpr34.pdf)
  • Diamond, A., Charles, C. and Allen, T. (2004) Domestic violence and Crime and Disorder Reduction Partnerships: findings from a self-completion questionnaire, Online Report 56/04, London: Home Office (http://www.homeoffice.gov.uk/rds/pdfs04/rdsolr5604.pdf)
  • Mullender, A. (2004) Tackling Domestic Violence: providing support for children who have witnessed domestic violence, Development and Practice Report 33, London: Home Office (http://www.homeoffice.gov.uk/rds/pdfs04/dpr33.pdf)
  • Taket, A. (2004) Tackling Domestic Violence: the role of health professionals Development and Practice Report 32, London: Home Office (http://www.homeoffice.gov.uk/rds/pdfs04/dpr32.pdf)
  • Douglas, N., Lilley, S., Kooper, L. and Diamond, A. (2004) Safety and justice: sharing personal information in the context of domestic violence – an overview Development and Practice Report 30, London: Home Office (http://www.homeoffice.gov.uk/rds/pdfs04/dpr30.pdf)
  • Myhill, A. and Allen, J. (2002) Rape and sexual assault of women: the extent and nature of the problem. Findings from the British Crime Survey, Home Office Research Study 237, London: Home Office (http://www.homeoffice.gov.uk/rds/pdfs2/hors237.pdf)
  • Hanmer, J., Griffiths, S. and Jerwood, D. (1999): Arresting Evidence: Domestic Violence and Repeat Victimisation. Police Research Series Paper 104, London: Home Office (http://www.homeoffice.gov.uk/rds/prgpdfs/fprs104.pdf)
  • Kelly, L. (1999): Domestic Violence Matters: An evaluation of a Development Project. Home Office Research Study 193, London: Home Office (http://www.homeoffice.gov.uk/rds/pdfs/hors193.pdf)
  • Mirrlees-Black, C. (1999): Domestic Violence: Findings from a new British Crime Survey self-completion questionnaire. Home Office Research Study 191, London: Home Office (http://www.homeoffice.gov.uk/rds/pdfs/hors191.pdf)
  • Plotnikoff, J. and Woolfson, R. (1998): Policing Domestic Violence: Effective Organisational Structures. Police Research Series Paper 100, London: Home Office (http://www.homeoffice.gov.uk/rds/prgpdfs/fprs100.pdf)
  • Grace, S. (1995): Policing Domestic Violence in the 1990s. Home Office Research Study No. 139, London: HMSO (http://www.homeoffice.gov.uk/rds/pdfs05/hors139.pdf)
  • Lloyd, S. Farrell, G. and Pease K. (1994): Preventing Repeating Domestic Violence; A Demonstration project on Merseyside. Crime Prevention Series paper 49, London: Home Office (http://www.homeoffice.gov.uk/rds/prgpdfs/fcpu49.pdf)
  • Morley, R and Mullender, A (1994): Preventing domestic violence to women. Crime Prevention Series Paper 48, London: Home Office (http://www.homeoffice.gov.uk/rds/prgpdfs/fcpu48.pdf)

Other research

Related publications

The Use of Expert Witness Testimony in the Prosecution of Domestic Violence. A CPS publication (http://www.cps.gov.uk/publications


[1] http://www.homeoffice.gov.uk/crime-victims/reducing-crime/domestic-violence/

[2] http://www.crimereduction.homeoffice.gov.uk/violentcrime/dv01.htm

[3] Mr. Virendra Sharma MP, Commons Hansard Debates [online] 8 May 2008, http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080508/debtext/80508-0020.htm