Unlawful Wedded Life

Toby Williamson, Head of Development and Later Life:

"It was announced last week that fifty English councils are introducing measures to address the rising number of people with learning disabilities who are being forced into marriage. The government's Forced Marriage Unit has talked of a "growing number of referrals" of this kind and it is reasonable to suggest that there are many more going unreported.

I think we can all accept the fact that arranged marriages are common in many cultures, and that, more importantly, they are perfectly legal providing that both parties are able to give consent. The problem begins when the capacity to consent is called into question and when an arranged marriage becomes a forced marriage, something which is not only patently unethical but also unlawful.

Capacity to consent to marriage involves something called mental capacity – this means the ability to make decisions. For a person with learning disabilities, for example, the ability to make decisions may be quite difficult because of the nature of their disability. The Mental Capacity Act (MCA) says that if a person lacks mental capacity to make a particular decision then whoever is making that decision or taking any action on that person’s behalf must do this in the person’s best interests. Of course, many people with learning disabilities can and do make decisions to get happily married. The MCA also emphasises the importance of starting from the assumption that people have capacity, and supporting them to make decisions for themselves, even if on occasions these may be ones that some people think are unwise.

However, the MCA sets out certain 'best interests' decisions which can never be made, either because they are so personal to the individual concerned, or because they are governed by other legislation. These "excluded decisions", i.e. ones that must not be made on someone else’s behalf, include consenting to marriage or a civil partnership.

There are laws in place to protect people with learning disabilities from being forced into marriage, but the real challenge comes with actually implementing this legislation, which can be incredibly difficult to do when this issue is so hidden.  If we are to support families with issues such as forced marriages we need to be aware of their needs and of any changes of circumstance that may relate to adult protection of vulnerable adults. And this is irrespective of whether they are deemed to have or not mental capacity. To put it simply, we are less likely to identify people at risk or entered into forced marriages if we do not know where they are.

So another aspect of this complex issue is awareness and understanding about the lives of people with learning disabilities who are from Black, Asian and minority ethnic (BAME) groups. The Foundation for People with Learning Disabilities was recently asked by the Department of Health to update ‘A Framework for Action’ which focuses on BAME people with learning disabilities. The update was published in 2012 and gives guidance on the type of information required for commissioners and others in order to know their population and hence able to develop an action plan on the type of support needed by people with learning disabilities and their families from BAME communities. We hope that this framework will have a real impact in terms of equality of service provision, meaning that issues such as forced marriages of people with learning disabilities will no longer be so hidden.

Goethe said “Love is an ideal thing, marriage a real thing” - since we can't legislate ideals we are bound to do our utmost to fight against the very real problem of forced marriage and to ensure that people who may be vulnerable get the protection they need."

Published 09 August 2012 |
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