CONTENTS
1. Introduction .....................................................
1.1. TheProblem.................................................
1.2. The Aim and Focus of this Contribution.........................
1.3. Outline. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.4. My own Role and Engagement .................................
2. Some Points of Departure..........................................
2.1. Child Marriages: the Problem and its Scope . . . . . . . .
2.2. The Current Law ............................................
3. Legislation or Not?..............................................
3.1. Questions to be Raised.....................................
3.2. General Considerations .......................................
3.3. Differences in Culture and Values are Involved..........
3.4. Possible Legislative Measures ..................................
3.5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .
4. No Possibility of Exceptions to Marriage Age? . . . . . . . . . . . . .
4.1. The Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.2. The Arguments for Keeping the Possibility of Exceptions .
4.3. The Arguments for a Change..................................
4.4. Discussion and Conclusion . . . . . . . . . . . . . . . . . . . . . . . . .
5. Criminalisation?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1. General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.2. Will any Child Marriages be Caught by Criminalisation? . .
5.3. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.4. What is the Crime and who Commits it?. . . . . . . . . . . . . . . .
5.5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.6. The Swedish Government Bill and the 2014 Law Amendments
6. How Should We Counteract Negative Effects? . . . . . . . . . . . . .
7. Closing Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. INTRODUCTION
1.1. THE PROBLEM
Almost everyone will agree, regarding child marriage:
– that it is wrong,
– that it robs far too many children of their chance to a life of their own choice,
– that we need to protect children against it, and
– that society should be more active in trying to do something about it.
The difficulties arise when we start considering concrete measures. What should in fact be done, and how forcefully should we react? Is it enough to try to change long-term attitudes of some parents and relatives? Or must we change the law to make it quite clear to everyone that child marriages are never acceptable? But do we really mean “never”? What if a girl becomes pregnant and her religion prohibits her giving birth without first getting married? Should there not be an exception for at least those cases?
What makes these questions particularly difficult is the fact that even if most of us agree that it is wrong for children to get married, there are many who believe that it is not necessarily so. The issue at stake is to a great extent a cultural phenomenon. It is a fact that in certain cultures child marriages are accepted, and even common. What conclusions should be drawn from that? Should we disregard those who have an “unacceptable” view from a majority standpoint? Or should we treat their view as equal to ours and refrain from intruding? Is it in fact discriminatory to interfere with “the view of other cultures”? Or should we act firmly based on majority values only? If we do, how do we show others the necessary respect? Or is there no need for that?
These questions touch on a legislative issue which is nowadays topical in Europe to a much greater extent than before: should the legislator take into consideration the fact that society is multicultural and that values are not as homogeneous as they used to be? Some say that “here we are all governed by the law of this country, no matter what we believe and what our values are, and the law should be the same for all of us”. Others say that “the legislator must respect minority values at least to the extent that those values do not hurt people outside of the minority”. Which is right and which is wrong? The answer is perhaps not self-evident, at least not from the outset.Whatever position we take, it seems we are facing a double problem of a kind which is rather unusual when it comes to legislation:
(a) We need to protect children against getting married much too early. How can this be done efficiently, with acceptable legislative and/or other measures?
(b) In giving children the protection they need, to what extent should we give consideration to the fact that in many cases their families and relatives believe this to be an unjust intrusion into their lives and values?
1.2. THE AIM AND FOCUS OF THIS CONTRIBUTION
The aim of this contribution is to analyse and try to answer the difficult problems of child marriages and the law. And it is to take a standpoint, from a reasonably informed background, on the issue of what legislation should be passed, if any. The focus is in particular on Sweden, but the analysis and conclusions are in principle valid for all Europe and many other parts of the world.
If any measures should be taken against child marriages, it is not necessarily legislation. It could be more important that we try to make sure, for example,
– that schools and authorities understand the problem;
– that they can identify the problem and take appropriate measures;
– that there is a well-established method for family contacts in acute situations;
– that there is a central national body which can lead, coordinate and support;
– that there is a respectful but efficient dialogue with the adults concerned; and
– that religious leaders are persuaded to speak up against child marriage.In this contribution, however, I will only deal with the issue of legislation: What should the legislator do, if anything? And I will not deal with all possible legislative measures, but only those which would probably be most important. It so happens that those measures are at the same time the most controversial ones.The problem is of a particular nature if the child is induced to marry against her or his own will. From a legislative standpoint those situations are easier to deal with than those which involve children who do not oppose to getting married. Here, in principle, I only deal with those child marriages where it cannot be proven that the parents or relatives have forced or even put pressure on the child to marry.The vast majority of children who marry are girls. To make the discussion less complicated I will limit myself to talking about girls only.
1.3. OUTLINE
In section 2 I briefly describe the problems with child marriages. My focus will be on Sweden, but most of what I say is valid for most parts of Europe and many other countries of the world. In section 3 I discuss, from a general standpoint, whether legislative action is justified and whether the gains will exceed the losses. After that I focus more closely on two possible legislative solutions. In section 4 I discuss whether all child marriages should be banned, or whether an exception should be available in special cases, due to particular concerns. In section 5 I discuss the issue of criminalisation. If child marriages should be criminalised, who would then be seen as committing a crime? What, more precisely, constitutes the criminal offence? And should we also criminalise those “marriages” which are not formally marriages (by law) but have in practice the same effects? In section 6 I look at the important question of how we could mitigate the negative effects of a prohibitive legislation, should it be passed. And in section 7, finally, the conclusions are summarised and to some extent further reflected on.
1.4. MY OWN ROLE AND ENGAGEMENT
A few words should be said about my own role in this. Between 2010 and 2012 I acted as the chairperson of a legislative project, initiated by the Swedish Government, concerning forced marriages and child marriages. The project involved experts with different professional backgrounds and a full time secretary. In this contribution, I refer to the project as the FCMP (Forced and Child Marriages Project). We produced a report which was handed over to the Cabinet of Ministers in May 2012.1 In the report we made some proposals regarding both new legislation and other measures.
In March 2014 a government bill was presented to Parliament including most of the proposals in our report and some more.2 The bill was passed and the new legislation entered into force on 1 July 2014.
2. SOME POINTS OF DEPARTURE
2.1. CHILD MARRIAGES: THE PROBLEM AND ITS SCOPE
What is the problem of children getting married? Is it not evident that parents normally know what is best for their child and act on the basis of this knowledge? Whatever the case may be, if the parents have made a decision and the child has accepted it, why is it a problem for society and the legislator to be concerned about?
The problem is, in short, that children are deprived of their right to decide for themselves what to do with their lives. The relevance of this is considerable. Most children trust their parents to know what is best for them, and do not question the decisions that the parents make for them. They do not do so until many years later, when it is often too late to make changes. Early marriage often leads to schooling
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1. English title: Strengthened protection against forced marriages and child marriages, 665 pages, Statens Offentliga Utredningar (SOU) 2012:35, Stockholm 2012, summary in English on pp. 37–51. A list of literature etc., in Swedish, is included in pp. 561–573. The English summary is included as an Annex to this book.
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being discontinued. Lack of education can result in long-term alienation and major difficulties in getting into the labour market and earning a living. This risk is amplified by the fact that the girl becomes closely linked to the husband and his family. This happens not only due to the marriage itself, but because of the common children and through financial ties.
It is an important principle that human beings should not be deprived of their right to make the important decisions for their own lives. That is what child marriage does to girls.
There are numerous examples of very young girls who marry much older men. This is much less common in Europe than in some other parts of the world, but with migration it occurs also in Europe. The girls are mostly not forced to marry, at least not in the strictest sense of the word. But it is seldom something they choose of their own volition. It must be remembered that most children are not capable of making sensible choices when it comes to matters which will affect the rest of their lives.
It is not possible to give any exact figures on how common child marriages are. The main reason is that many of these relations are legally not marriages. The reason for this is they are not entered into according to the law of the state, but according to the rules of religions or traditions. And yet they are quite problematic in the sense that we are discussing here, because the “spouses” themselves and their relatives and friends look upon them as married. The reason is that they have been through a marriage ceremony of a kind which causes the ties between them to be strong. For one thing they cannot break up the relationship without going through certain dissolution procedures imposed by the culture or faith.
It is very important that these “informal marriages” are taken into account when the problem of child marriages is discussed. And they should be characterised as child marriages in a broader sense, because they carry with them the most important characteristics of “normal” marriages and appear to be just as problematic.
In the project mentioned above (FCMP) we tried to get hold of figures which would give us a reasonably accurate picture of the number of child marriages in Sweden. We learned that in December 2011 there were thirteen children in Sweden aged 15–17 who were registered as married. In that same year the Swedish Migration Board handled eleven cases which involved a child marriage in matters concerning residence permits. And in the year 2011 the Swedish Tax Agency, i.e. the Swedish authority in charge of registration in population records, handled a total of seventy cases regarding national registration of a child marriage concluded abroad. In all those cases, at least one of the partners was, at the time of the marriage, either a Swedish national or a resident of Sweden. The number of children living in informal marriages is thought to be several times higher than these figures on formal child marriages indicate.
On top of this are those relations which in many ways cause the most serious concerns. By this I mean the girls who are sent to the countries of origin of their families to marry there, often a much older man, and to stay with the husband in that country, at least for an interim period. Swedish schools report on such cases every year.
I think it is fair to estimate that 400–500 girls living in Sweden who are still children, i.e. below 18 years of age, are either married or about to get married. This estimation includes informal marriages. Sweden (2014) has a population of approximately 10 million inhabitants.
On a global basis the problem is of course much greater. In a report 2012 from the United Nations Population Fund (UNFPA), it is estimated that one out of every three girls in developing countries (excluding China) will be married before they are 18 and one out of nine before 15. Most of these girls are poor, less educated, and living in rural areas. In 2010 over 67 million women aged 20–24 had been married before they turned 18. It is estimated that in the next decade 14.2 million girls under 18 will be married every year. That translates into about 39,000 girls every day. And the numbers are rising.3
Even if quite a few girls are directly affected by the problem of child marriage, it is certainly much more than a matter of quantity. It is the stories that these girls tell that makes one understand the depth and the seriousness of the problem. While I worked on FCMP, new cases popped up on a regular basis, each girl having a narrative of her own: the 15-year-old who was persuaded to travel to Iraq for the summer holidays, and was left there to be married to her 28-year-old cousin; the 16-year-old who, after a similar experience, left her husband, also in Iraq, and had a child with her beloved one, with the result that the baby was killed by her relatives. And so on. Hearing these narratives, one is easily persuaded to believe that it is absolutely necessary to do something about the practice of child marriage.
Child marriages are often connected with non-Western cultures which – as far as Europe is concerned – have found a place in Western societies during the last few decades. Such marriages are also often connected with honour-related violence and oppression. This knowledge is important in order to understand the core of the problems. At the same time it is essential to take the starting point from a human rights perspective, which gives rise to the following question: Is it a human right not to be married off as a child? Most of us would, I think, say that it ought to be. We will return to this issue in section 3.
The questions are there to be answered: Is this a problem for the legislator to handle? What consideration should be given to the fact that to some people child marriage is not necessarily bad, or at least not so bad that the parents should not have the right to decide? Remember that we are not talking about forced marriages. We are discussing the situation of girls who feel they should do what their parents ask them to do and may well agree to that. Should we legislate against that?
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3. UNFPA Report, Marrying too young, 2012, p. 6.
2.2. THE CURRENT LAW
Most countries have a fixed minimum marriage age, i.e. an age below which people are not allowed to marry. In Sweden, as in most countries in Europe, the age is 18. In the United Kingdom it is 16.
But the laws of most countries also provide a possibility for children to marry under that age, in exceptional cases, after a special permission has been granted by the competent authority. The reason for granting a special permission is often that the situation for a girl would be very difficult if she would not be able to marry. Often it is because she is pregnant and because it is shameful or against the family’s religion or culture to give birth to a child without being married.
I know of no country where child marriage is criminalised. And there are obvious problems with criminalising it. Firstly: Who is the criminal, i.e. the person committing the criminal offence? Is it the man who marries the girl, the parents or the person performing the wedding ceremony? What about the girl herself? Secondly: How do we deal with the fact that a large number of the marriages are entered into abroad, where a different law applies? Thirdly: How do we handle the informal marriages? Criminal law must be reasonably clear. People should know, at least in principle, when they risk facing criminal punishment. If we want to criminalise informal marriages, how do we separate them from relationships where the couple is just living together?
Some countries have laws whereby child marriages concluded abroad are normally not recognised. That means that the “spouses” are not registered as married and that the “marriage” does not carry with it the legal consequences of a marriage. Normally, according to an established position of private international law, a marriage entered into abroad is valid in other countries if it is valid in the state of celebration. In Sweden, however, since 2004, a marriage entered into abroad is not recognised in Sweden if at the time of the wedding it would not have been possible for the couple to marry according to Swedish law, due to a marriage obstacle such as the lack of the required age to marry.4 This applies on condition that at least one of the two was a Swedish citizen or had habitual residence here. This provision normally prevents foreign child marriages from being recognised in Sweden. There is, however, also a clause of exception here. The marriage is to be recognised if there are “special reasons” to do so. One such reason could be that the marriage was celebrated many years ago and it would be unreasonable not to recognise it in the circumstances.5
I do not know of any other kinds of protection for children, directly by law against the practice of child marriage, than the ones mentioned above. And the most important of them is of course the stipulation of a minimum marriage age.
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4. See Act (1904:26 s. 1) on Certain International Legal Relations regarding Marriage and Guardianship, Ch. 1 §8 a.
5. See Government Bill (prop.) 2003/04:48 p. 56.
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One other possibility of protection directly by law would be a prohibition on performing wedding ceremonies concerning children. Such a prohibition could include both such ceremonies where a legally binding marriage is intended to take place and those which result “only” in an informal marriage. Another alternative is to limit it to covering only legally binding marriages. There could also be a rule in migration law whereby a child can never be granted a permanent residence permit based on marriage if the marriage took place when one of the two was still a child, from the point of view of the granting state. Other measures could also be considered. In section 3 we will look at some possible additions or changes in the law.
In many countries there is a kind of protection against child marriage which could be labelled as taking place “indirectly” by the force of law. One example is rules whereby it is a duty for social services to take actions to prevent children from getting married, and for schools to report cases where pupils are at the risk of being married off. Another example is laws which make it compulsory for immigrants to learn about family laws and customs of the host country.
3. LEGISLATION OR NOT?
3.1. QUESTIONS TO BE RAISED
When you ask the question whether a law should be enacted to solve a certain problem, you always need to judge whether legislation is justified in the first place. But you also need to give thoughts to the possibility that legislation may not be the best tool to achieve the effect you want, and to the possibility that the drawbacks of a new law may be greater than the gains.
In dealing with child marriages, as we have seen, one more consideration needs to be included: Is the drafting of legislation an appropriate measure when some groups have reason to feel that this legislation is to a certain extent aimed at them? This consideration is particularly sensitive if the groups concerned are vulnerable. And that is to a large extent the case when it comes to the practice of child marriages.
3.2. GENERAL CONSIDERATIONS
It is fundamental for all legislation that new laws should be passed only when the matter is
(a) important enough, and
(b) of concern for the legislator.
Laws are normally not passed regarding how people dress or the colour of cars. Nor do we legislate to tell people how to bring up their children6 or to tell churches what to preach. Laws should be efficient, or at least have the potential to be efficient. And they should be as clear as possible, fair and understandable. The negative effects of the law should not outweigh the positive. New legislation regarding child marriages should meet all these requirements.
The legislator must always make sure that national laws are consistent with international conventions and other supranational legislation by which the state is bound. When it comes to child marriages, the UN Convention on the Rights of the Child is of particular interest.7 According to this Convention the best interests of the child should always be a primary consideration (Article 3(1)). The states which are parties to the Convention shall undertake appropriate measures regarding children’s economic, social and cultural rights to the maximum extent of their available resources (Article 4). States shall also ensure, to the maximum extent possible, the development of the child (Article 6(2)) and protect children against all kinds of sexual abuse (Article 34).
Whether these provisions in the Children’s Convention require states to prevent child marriages is an interesting question which, as far as I know, has not been subject to a legal analysis to any great extent. It falls outside the scope of this contribution to enter into such an analysis. But it is, to my belief, quite possible to consider that the provisions by which states have a duty (a) to ensure the development of the child to the maximum extent possible, and (b) to protect children against all kinds of sexual abuse carry with them an obligation for the state to prevent child marriages, and to do so efficiently.
Marrying much too young deprives the girl of her right to decide for herself what to do with her life. Early marriage often means that the girl leaves school, which in turn means lack of education, often long-term alienation and severe difficulties in getting into the labour market and earning a living. All these effects are extremely important in someone’s life. Stopping child marriages should therefore be a serious concern for those states where the practice exists. This means the problem is important enough for the legislator, and something which is certainly the legislator’s responsibility.
That being said, it must be underlined that other kinds of measures could also very well be needed. It seems very important, for example, to train teachers and other professionals who meet the child to see the signs that a child marriage is likely to take place, to act on these signs and to act properly. Equally important
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6. One exception from this principle is the prohibition on spanking of children introduced in Sweden in 1979. Laws of the same nature have since then been enacted in almost forty countries.
7. The 1950 European Convention on the Protection of Human Rights and Fundamental Freedoms does not include any provision which concerns child marriages specifically. It is possible however, that Article 8, regarding the right to protection for private life and family life, could be invoked by a woman married off as a child against her State for not protecting her against early marriage. So far no such case has been tried by the European Court of Human Rights.
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could be to create a national body with the knowledge and resources to educate, give advice and help in acute situations, etc. And a third very important measure could be the promotion of knowledge on how to act efficiently but respectfully towards parents who are about to marry off their young daughter. In this contribution, however, I only deal with legislative measures.8
As stated above, no legislation should be enacted unless there is reason to believe that it can achieve its goals. This requirement is extremely important where child marriages are concerned, as we shall see in sections 4 and 5. There are different ways to avoid the law for those who are determined to circumvent it. But that does not necessarily mean that the law has not been efficient. What really counts is if the law changes people’s behaviour so that there are considerably fewer child marriages with the assistance of the law than before it was passed. This is of course difficult to estimate. But if the law is successful in sending a clear signal that society does not accept child marriages, this should be sufficient.
The last question to ask in these general considerations is whether the drawbacks of legislation will outweigh the gains. This is a difficult question to answer because it is not easy to know what the effects will be. And yet, this is something that must be analysed carefully before any decisions on legislative measures are taken.
3.3. DIFFERENCES IN CULTURE AND VALUES ARE INVOLVED
One issue of particular interest concerning possible legislation against child marriages is the fact that such marriages are, in European countries, to a large extent a practice which exists in immigrant and minority groups only. This is not true, of course, from the perspective of some of the countries where the practice is common. In my contribution, however, the issue is discussed from a European and, in particular, from a Swedish perspective.
Why should such an insight matter? Why should we take into consideration the fact that child marriages exist in certain groups and not in others? The reason is that it complicates any legislative measure, and does so in at least three different ways:
(a) The group/culture problem. We must ask the question whether it is reasonable for the legislator to take the majority standpoint only, and to disregard the
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8. Anyone interested in a discussion relating to other measures is advised to read the English summary of the FCMP Report, Strengthened protection against forced marriages and child marriages, Stockholm 2012, pp. 47 ff. For a more detailed text, however only in Swedish, see chapters 20–22. The English summary of the report is included as an Annex to this volume.
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view of the groups affected that some child marriages are acceptable. To what extent should the legislator take into consideration the fact that society is multicultural and that values are not as homogeneous as they used to be? Is it in fact discriminatory, or an intrusion into the freedom of some groups or cultures, to interfere with their view? That is sometimes the standpoint of the legislator. One example is the freedom of religion argument which is often invoked for allowing, under certain circumstances, the practice of circumcision of boys.
(b) The family/privacy problem. We must also ask whether the problems of child marriages are of a kind that should be left to the families concerned to solve. If it is the opinion of the parents that marrying is best for the girl, why should the legislator know better? How far should the legislator go in interfering with people’s views regarding issues that are to a great extent of a private or family nature?
(c) The negative effect problem. If we pass stricter legislation against child marriages to the effect that some groups feel attacked by the majority of society, how can we counteract this negative effect? And how can we counteract the reaction, which may seem logical, that the legislator is acting in a xenophobic way? How can we make sure that legislative measures will not create more difficulties than they can solve?
How should we deal with the group/culture problem? Is it acceptable for the legislator to disregard the views of minorities, or does disregard amount to discrimination? This is not an easy question. If it has been a strong custom for centuries in a group that young people “marry” in a traditional way, and this is believed to be both natural and right, then it is clearly not obvious that society should interfere. Some Roma groups could be mentioned as an example. Among some Roma in Sweden it is not uncommon that children at the age of 16–17 move in with each other and are – at least by some – considered “married”.9 The Romas have been discriminated against for a very long time in Europe, Sweden included. Should society then interfere with a tradition of theirs which the Roma groups themselves might not see as particularly problematic?
Would one possible solution to the group/culture problem be to give scope for exceptions in the law? Could we, for example, make an exception for Roma groups from a law prohibiting child marriages? I think that this is not a road to be chosen. I would not entirely rule out the possibility of sometimes having separate laws governing certain groups, but it is clear that exceptions for groups from specific obligations would create great consequential problems: Who belongs to the group? Should an exception also be made for other groups? It would also be very difficult to explain group exceptions like this to the public. And what about the efficacy of
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9. This information was given by Swedish Roma representatives at meetings within the Forced and Child Marriages project mentioned earlier.
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So we need to weigh the interests in the particular case. Does the interest of girls not to be married while they are still children outweigh the interest of the group – for example a Roma or a Muslim group – that this practice will continue to be allowed and that the group is saved from the stigmatisation and xenophobia to which legislation risks contributing? I believe that it does. The freedom of girls to make decisions regarding their own lives is certainly an interest of the utmost importance. And the big decisions – with whom you will spend the rest of your life, when you will have children, whether you should get an education or not, etc. – should at least in principle not be taken while you are still a child, but wait until you are an adult. Therefore it is very important to stop a practice which in fact prevents a girl from postponing the most important decisions in her life. Furthermore, a fear of xenophobia or stigmatisation cannot be allowed to result in a lack of attention on the part of society to the individual’s exposure to harmful practices. Instead measures should be taken to prevent any xenophobia and stigmatisation that may arise. It cannot be accepted that children from minorities are refused the protection considered self-evident for children belonging to the majority in society.
In my opinion the interests of the individual in this case clearly outweigh the interests of the group.
Is it acceptable, then, for the legislator to interfere with the view of the girl’s family that it is in her best interest to marry early, and to the man the family has chosen for her? Should this be for the parents to decide? Why should society know better, particularly if it is a society which is not familiar with the traditions and views of the family? To what extent should the legislator intrude at all in rather private matters? It is true that in European countries the law normally prohibits the parents to assault the child, and it requires the parents to put the child in school, bring up the child in reasonably safe surroundings, etc. But should the law also require the parents to see to it that the child does not marry before a certain age?
These are basically the same questions as the ones mentioned above, concerning legislation “against a group”. The problem in principle is this: Are the interests of the child more important than the interests of the family?
It is clear that sometimes the interests of the child are more important, and sometimes the interests of the family. The legislator will not tell the family what food to put on the table for the child to eat. But the legislator will certainly interfere with the question of whether the child should be taken to hospital when seriously ill. So, here too the question must be answered for the specific issue.
Does the interest of girls not to be married while they are still children outweigh the interest of the family to be able to make decisions of that kind for her? In my mind it is quite clear that it does. Again, the freedom of girls to make decisions regarding their own lives is an interest of great importance. The really big decisions in her life should not be taken while she is still a child, when it can normally be expected that she does not understand the real impact of them. The interest of the family, of privacy in matters of this kind, should therefore not prevent the enactment of legislation against child marriages.
Yet another aspect should be considered: could the girls themselves perhaps be put at risk if laws are introduced to stop them from marrying young in their home country, i.e. the state where the family is habitually resident? The risk to be taken into account is that some girls might be sent abroad to marry. If that is the case, nothing has been gained for those particular girls. However, legislation in one country cannot reasonably be stopped because of a risk that some people will avoid the law in that country by leaving.
The conclusion is that legislation should be enacted in order to protect children from child marriages. Having established this, we need to return to the earlier discussion on how differences in both culture and values can be taken into consideration. It is of the utmost importance that legislation against child marriages does not cause unnecessary harm. Therefore it needs to be considered how this can be achieved. Could any particular measures be taken to alleviate the possible reaction among the groups affected that the legislator is acting against them and to prevent xenophobic attitudes in society from gaining ground? We will come back to this question in section 6.
3.4. POSSIBLE LEGISLATIVE MEASURES
I cannot discuss in detail all possible legislative measures against child marriages. However, it is certainly of some interest to envisage what kinds of measures could be contemplated. I will therefore start by listing those which I can think of, and explain them very briefly.10
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10. The listing of the possible legislative measures is done from a Swedish perspective. It may be that in other countries some of the measures mentioned have already been taken or would be regarded to be irrelevant, because of the legal surroundings. In the Report of the FCMP, all the measures mentioned above are discussed, and some of them proposed. For a short version in English, see pp. 49–51 of the Report.
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(a) Licence to perform marriages: Not just anyone is allowed to perform legally valid marriages, but only persons who can do it in a particular capacity (e.g. ministers of a state church, judges in some legal systems, etc.) and persons who are given a specific licence, normally by a state body. To prevent child marriages – including so-called informal marriages – we could put some special requirements on those who already have the required licence or are applying for it. It could for example be required for religious communities and wedding officiators who have permission to perform marriages that they do not carry out any child marriages at all, or otherwise they will lose their permission. Since there is a marriage age requirement, this measure would in practice be directed only against informal marriages, i.e. those “traditional marriages” which do not result in a legally binding alliance but have the same effect in practice (see section 5.2).
(b) Stricter rules for recognition of child marriages abroad: As was mentioned before, in section 2, Swedish private international law contains rules which in principle prevent the recognition of child marriages entered into abroad, if at the time of the marriage there was a close link to Sweden. This is very important, since a prohibition to marry as a child would otherwise be almost an empty letter. As it is today, the limits to recognition only apply to persons who have a strong connection to the country in which recognition is sought. There are also exceptions which will prevent refusal to recognise in cases where there are strong reasons to accept the marriage, for example if it was performed many years earlier. It could be discussed whether these rules should be made stricter, for example to the extent that no exceptions are made to the rule that child marriages will not be recognised.
(c) Stricter rules on proxy marriages: In some countries and some cultures it is accepted that the marriage is concluded on behalf of the spouses-to-be in the absence of them or one of them. In these “proxy marriages” it is common for a relative to present a written authorisation from the party not present, and for the marriage to be registered based on this. A possible legislative measure could be to never recognise such marriages where the parties have not both been present at the wedding, and maybe even to make it a crime to induce or allow a proxy marriage.
(d) Making it more difficult to obtain residence permit: If the woman (or the girl) is a citizen or has a permanent residence permit in a certain country, her husband will normally also be granted a permanent permit to live in that country, due to the marital bond. But if the marriage is not recognised, he will not be granted such a permit. If special interviews are conducted by the migration authorities, as is the case in Sweden, the results of the interview will therefore often be important for him. The question for the authorities in Sweden will be whether there are “special reasons” to recognise the child marriage (see section 2.2). The woman (or girl) may be secretly against the marriage and against the man getting a residence permit. To get truthful answers from her, there could therefore be reason to interview her without anybody from the family listening. But then there is the dilemma that if she answers truthfully, it could put her at danger. Therefore, a possible legislative measure could be to allow for her answers to be kept secret even though they will play a role in the decision of the authorities.
(e) No exceptions to the marriage age rule: The minimum age for marrying is, in most Western countries, 18 years. This is the case in Sweden. But in most countries, it is also possible to marry below the minimum age in exceptional cases. In Sweden a girl will normally be granted such an exception if she will soon be 18 and is pregnant, if it is very difficult for her – because of her religion and family tradition – to give birth to the child without being married. Should this possibility of granting an exception to the rule be abolished?
(f) Criminalisation: Finally, a possible legislative measure to prevent child marriages is criminalisation. Parents who initiate marriage for their underage daughter would be performing a criminal act. The same could apply for others who actively take part in arranging the marriage.
In my opinion, it is clear that of all these possible legislative measures, the last two have the most potential to make a difference, that is (e) a fixed marriage age without exception, and (f) criminalisation. These two are at the same time those possibilities which are, in my experience, the most controversial ones in the sense that people have very different views regarding their appropriateness. In sections 4 and 5 I will discuss these two measures in more detail.
3.5. CONCLUSION
It is clear that the issue of child marriages is per se a matter for the legislator. It is important enough and it concerns matters which belong in the legislative sphere. Whether the positive sides of legislation outweigh the negative is a question which cannot be answered without first analysing the cultural and family aspects of it, and without analysing the drawbacks and gains of each specific measure.
The reason for legislation – to protect girls – in my opinion clearly outweighs the interests of those who may regard themselves as being attacked by legislative measures against child marriages. But if measures are taken, the legislator should also make efforts to alleviate any negative effects for those groups and families concerned.
4. NO POSSIBILITY OF EXCEPTIONS TO MARRIAGE AGE?
4.1. THE QUESTION
As mentioned, most countries have a stipulated minimum marriage age. In Sweden it is 18, which is also the age when a person goes from being a child to becoming an adult. But most countries also have, by law, a possibility for children to marry in exceptional cases, after special permission from a competent authority.
Is it necessary, or at least well founded, to keep a possibility for children to marry in special cases? Or should this possibility be abolished so that there is no way of legally getting married in the country concerned below the age limit set by law? Let us look at the arguments for and against.
4.2. THE ARGUMENTS FOR KEEPING THE POSSIBILITY OF EXCEPTIONS
The main arguments for keeping a possibility for children to marry in exceptional cases, after special permission, are as follows:
(a) The state should not unnecessarily interfere with people’s private lives. If a girl who is very mature for her age wishes to marry, knows very well what she is doing and gets the “blessing” of everyone around her, it could be claimed to be strange that the state should forbid her to.
(b) Sometimes it creates great difficulties for a girl and her family if she is not allowed to marry until she has reached a certain age. In some groups it will be very unfavourable for both the mother and the child if the child is born out of wedlock. In some religious surroundings it is just not accepted. If a girl becomes pregnant there may be in practice, from the family’s deeply felt point of view, only one alternative: that she gets married to the father of the child. Abortion may, from a religious or cultural point of view, be just as unacceptable as the alternative of giving birth to the child outside of wedlock.
(c) If the couple cannot marry in Sweden, there is always a possibility for them to marry abroad in a county permitting the marriage. Why then prevent them from getting married in Sweden, where they live?
4.3. THE ARGUMENTS FOR A CHANGE
The arguments for abolishing the possibility of exceptions are of a somewhat different nature. Whereas the arguments for keeping the possibility focus on the situation of the specific girl and her family, the arguments against are in principle about the protection of girls in general and about the need to treat all children equally.
(a) It is questionable whether old-fashioned rules and traditions of a group should ever be allowed to outweigh the protection that the child is given by law. Neither law, nor society in general (in Sweden) make any distinction between children born inside or outside of marriage, and it is certainly not obvious that the legislator should accept it as an argument that some people still make such a distinction. By leaving scope for an exception, the legislator contributes to preserving old-fashioned and discriminatory norms about children.
(b) If the exception is retained because girls who become pregnant need protection against reprisals in their own group, it could likewise be claimed to be an unacceptable kind of support for norms implying that extramarital sexuality is shameful and prohibited. Even if people who believe in those norms should be respected, the reprisals do not belong to any reasonably modern society.
(c) In practice the possibility of an exception means that legislation does not provide the same protection for children from religious, cultural or ethnic minority groups as for children of the majority of the population. An important point of departure must be that all children should be given the same protection by law.
(d) The fact that the possibility of an exception exists may sometimes put pressure on girls to marry. If the exception is abolished, young people who do not wish to marry will be given better opportunities to follow their own preferences. The same is true for parents who want to stand up to pressure from relatives or others to marry off a child.
(e) It may be that families are so anxious that their underage daughters marry a person selected by the family that the girls are pressured into becoming pregnant, possibly after the conclusion of an informal marriage, if this will increase the chances of receiving permission to marry. This amounts to forced parenthood, and must, naturally, be counteracted. Early parenthood increases the risk of negative consequences for the girl, such as lost educational opportunities and alienation.
(f) The exception possibility does not only give a girl the right to enter into matrimony, but also excludes her from the protection that the age limit provides.
(g) It could be questioned whether it is acceptable under any circumstances for children to take decisions with such far-reaching consequences as those involved in entering into marriage.
(h) If the legislator believes it to be a serious matter to stop the custom of child marriages, then the signal needs to be clear and strong. The signal effect of legislation will certainly be much stronger if there is a total prohibition on children marrying.
4.4. DISCUSSION AND CONCLUSION
The arguments for keeping the possibility of an exception are strong. In some cases, given the circumstances, it will seem almost inhuman that the girl is not allowed to marry. After all, it could be argued, marriage is not much more than a formality, if a pregnant girl will give birth to the child anyway, and live together with the father. Why not let them marry if it makes the life of the girl much easier? Why force them to go abroad if they “must” get married? And why interfere with the wishes of a girl who may very well know what is best for her?
But the arguments against the exception are also strong. Without such a possibility there will be much less pressure on the girl. It will be settled once and for all that she cannot marry as a child, at least not in her home country, and no discussion needs arise. In the long run this should help in modernising views on sexual habits and on children born outside of marriage. And maybe the most important argument of all: girls belonging to immigrant and minority cultures will have the same protection by law as girls of the majority population. Society will show clearly that all children are expected to have the same chances of making decisions regarding their own lives.
Striking a balance between the arguments for and against is not an easy task. In the report of the legislative inquiry that I mentioned earlier (FCMP) we came to the conclusion that the arguments for abolishing the exception possibility outweigh the arguments against. So we proposed a change in the law. And I believe this to be the right solution. It certainly serves girls best in the long run. It is true that some girls will probably suffer as a result, but the practice on permissions is already very restrictive in Sweden.11 My conclusion, therefore, is that the possibility for children to marry in exceptional cases should be abolished.12
5. CRIMINALISATION?
5.1. GENERAL REMARKS
As I have mentioned earlier, I know of no country where child marriage is criminalised today. It is true, of course, that some child marriages are against the child’s will, forced by the parents or other relatives. In those cases the situation can sometimes be dealt with through other provisions in criminal law. But one of the delimitations of this chapter (see section 1.2) is that we are -only dealing with those
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11. In 2008–2010 a total of 58 girls applied for marriage exemption in Sweden. Three of them were granted the exemption, all of them 17 years of age. The remaining 55 applications were denied.
12. The Government was of the same opinion and passed on this proposal to Parliament, see Government Bill (prop.) 2013/14:208, pp. 22–25. As mentioned in section 1.4 the bill was accepted and the new legislation entered into force on 1 July 2014.
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child marriages which are of the child’s free will, or where it cannot be proven that the child has been forced or even pressured into marrying. The question now is whether those child marriages should be criminalised. What, exactly, should then constitute the crime? And who should be punished?
It is fair to say that European legislators in general nowadays try not to criminalise unnecessarily. If possible we try to deal in other ways with phenomena which we do not like. This is, however, by no means without exceptions. And the general principle must be said to be that an act by a person should be made a crime by law if it is serious enough to be judged as a crime. If the action is thought to deserve imprisonment, it is normally no doubt worth criminalising. Criminalisation, however, involves difficulties which other kinds of legislation do not entail. First and foremost there is the aspect of legal certainty. Something should not be made a crime if it is almost impossible to describe or delimit it. People must know, at least in principle, if they are threatened by criminal punishment when doing something (e.g. marrying off a child) or abstaining from doing something (e.g. preventing the child from marrying).
5.2. WILL ANY CHILD MARRIAGES BE CAUGHT BY CRIMINALISATION?
One important and obvious complication of criminalising child marriages is that they are prohibited in most countries. They cannot therefore, in principle at least, be entered into lawfully. And if the exception possibility is removed, then there is no way for a girl to marry lawfully as a child. So what is there to criminalise, if it cannot happen?
Unfortunately it is not that simple. We cannot get rid of all child marriages by just abolishing the possibility of exception. There will still be some. In fact there will be many, and probably not considerably fewer than before. There are two reasons for this.
Children are firstly to be protected by the legal system in the country where they live, for example Sweden. But what happens if those who have their background in another country are taken to their country of origin to be married? Child marriages are sometimes prohibited there too,13 but in fact such marriages happen anyway and not seldom. So when the children come back for example to Sweden, they will be married. Whether we will acknowledge these marriages in our countries is a question in itself. Sometimes we will, sometimes not. But whatever the case is, these girls will be considered married by their families and relatives, and the couples will act as if they are married and in fact be bound to each other
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13. For an overview of marriage age rules in Islamic and contemporary Muslim family laws, see A. Büchler and C. Schlatter, “Marriage Age in Islamic and Contemporary Muslim Family Laws – A Comparative Survey” (2013) Electronic Journal of Islamic and Middle Eastern Law 37–74.
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as such. So those children need the protection. Criminalisation is one possible way of providing it.
The second reason why child marriages will also continue to take place after the exception is abolished is the existence of so-called informal marriages. Many children enter into alliances similar to marriage in a religious or traditional order. These alliances do not become legally valid, but in practice the couple is considered to be married in their own community. The “spouses” cannot freely leave the relationship, but often have to abide by a strict traditional regime to do so. In reality, this is often just like being formally married.
5.3. DISCUSSION
One of the most difficult questions concerning the possible criminalisation of child marriages is whether so-called informal marriages should be included, and thus criminalised. If they are to be included, there will be major delimitation difficulties and therefore a lack of legal certainty. How do we, for example, define a “marriage” if it is not a legally binding one? How do we define those relationships which we want to criminalise? Is living together enough to constitute an “informal marriage”? No, that can hardly be the case. How about if, as is the case in Sweden, living together constitutes, by law in the state concerned, almost the same legal effects as marriage? What if there is a religious ceremony or the signing of a document before someone who has the legal capacity to perform a marriage? If relations entered into through such a ceremony would be treated as equal to marriages, when would the act be “ceremonial enough”? As a part of criminal law the delimitations that will be needed may appear artificial, and they are often not clear and precise, the way one would normally expect criminal law to be.
As we can see, criminalisation becomes very difficult if informal marriages are to be included. But at the same time, if they are not included the law will fall short in efficacy.
Before assessing the issue of criminalisation we should take a look at the very serious cases and decide whether they justify a penalty of a criminal law nature.
Take the example of a very young girl, say nine years of age, who is married off to a 28-year-old cousin and expected to give birth to the couple’s children as soon as her body is ready for it. Those cases happen,14 also to girls living in European countries. I believe it is evident that measures must be taken to prevent them. It is also clear, I believe, that the person arranging such a marriage – for example the girl’s father – deserves a rather severe penalty. And that is, in my mind, the case even if the girl says that “she is not opposed to the marriage as long as her parents want it”.
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14. For examples in actual life, see the UNFPA Report, Marrying too young, 2012, pp. 1, 20 and 76.
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In my opinion, the arguments for criminalisation in a case like the one just mentioned are so strong that arranging such a marriage should be made a crime of its own, provided that the law can be drafted in a clear manner and can be expected to be sufficiently effective in its application in practice. The decisive argument, in my opinion, is that there are, no doubt, children in great need of such protection by the legal system. So the question is then: How should a child marriage crime be construed and delimited in order to be clear and effective enough?
5.4. WHAT IS THE CRIME AND WHO COMMITS IT?
So how could the legislator construe a “child marriage offence”? Who should be penalised and who should not? Should only legally binding marriages be included, or also “informal” ones?
In the FCMP report, a provision was proposed of the following wording:
“If someone induces a child to enter into matrimony, or takes an initiative for, or arranges a child marriage, then it is a criminal offence.”
The proposed sanction is imprisonment for two years or less, or a fine.
I believe that this proposal deserves further analysis.
In this proposal the crime would in principle be to be “involved actively” in the marriage, either by inducing the child to marry or by initiating or arranging the marriage. Anyone who induces, takes an initiative or arranges the marriage would be committing a crime. The child herself would not. But the other spouse could be, provided he takes active part by inducing it, or as an initiator or organiser. I believe this to be a reasonable delimitation. It could be argued that it is better to make it a crime for the caretakers (i.e. legal custodians or other persons caring for the child) to “let a child marriage happen”. That would make it easier to find those responsible and at the same time create better legal certainty. But a caretaker who really has no power over the situation should not reasonably be punished.
It should be clear that a proposal like this will also include among those liable to be sentenced for the crime for example a mother who loves her daughter dearly and believes it to be an excellent opportunity for her to get married to a caring man who has asked for the girl’s hand. Criminalisation applies even if the marriage could be believed, in the specific case, to be in the best interests of the girl. If the mother induces her child to marry, or initiates or arranges the marriage, then she is committing a crime. This may sometimes seem unreasonable. But it must be remembered that the law will be drafted in the interests of all children, with the idea that marrying at a much too early age is in most cases detrimental for the child’s personal growth and development. It will seldom be of any harm to the girl to wait until she is 18.
One possibility could be to criminalise only those marriages where the child is a lot younger than the stipulated marriage age, for example 16 or younger. This solution would have the advantage that only those cases which are clearly worth punishing would be caught by the law. However, it is difficult to decide where the age line should be drawn. Also, such a solution would make the law less consistent. A child is a child, and there is much to say for the principled approach that the law should protect not only some children, but all.
We then come back to the difficult question of whether a child marriage offence should include informal marriages or not. The proposal in the FCMP report is that they are included. The main reason for this is the fact that they deserve to be criminalised just as much as formally binding marriages. Then there is also the efficacy argument. If those alliances are left out, many “actual” child marriages will continue to take place and in reality have the same negative impact on children as legally binding marriages.
In the law proposal we describe an informal marriage as:
“an alliance which is equal to marriage in the sense that it is binding under an established system of norms which includes special requirements for dissolution of the alliance and is entered into in accordance with that system of norms.”
It is obvious that the difficulty with this proposal has mainly to do with the delimitations and, as a consequence, insufficient legal certainty. When is, for example, a system of norms “established”, and when are there “special requirements” for dissolution? This of course needs to be reasonably clarified, either in the law itself or in the preparatory works, so that the courts will have some guidance in applying the law.15 Uncertainty cannot be excluded altogether. This should not, however, be much more of a problem than otherwise when a new criminal law provision is introduced.
As was noted earlier, there will not be much room for child marriages in a country where there is a minimum marriage age and no possibility of exceptions from this age. If criminalisation is to be effective it therefore needs to include marriages entered into abroad. It should not be possible to avoid the law by taking the child to some other country where she is allowed to marry. It will of course not be possible to punish, under Swedish law for example, someone who initiates or arranges a marriage in for example Iran and where there is no connection to Sweden. A prerequisite must be, as is mostly the case, that the crime has been committed in the country where the act is penalised, in this case Sweden. This means that the inducing, initiating or arranging must take place in that country.
Considering that I was the chairperson of the FCMP, it may not come as a surprise that I find the proposal acceptable. If we want to criminalise child
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15. The different issues are to some extent discussed in the FCMP Report, pp. 552 f.
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marriages, then the proposed way of doing it seems to be a good one. Furthermore, the responses to the proposal in Sweden were mostly very positive.
5.5. CONCLUSION
My conclusions regarding criminalisation of child marriages are as follows:
(a) Those child marriages which the child enters into of her own free will should also be criminalised. The law should include all children, i.e. persons under 18 years of age.
(b) Criminalisation should include “informal marriages”. These could be described as “alliances which are equal to marriage in the sense that they are binding under an established system of norms which includes special requirements for dissolution of the alliance and are entered into in accordance with that system of norms”.
(c) Criminalisation should also include marriages entered into outside of the country, provided that the criminal act is taking place in the country of criminalisation.
(d) The law should be drafted such that the criminal act consist sofeitherinducing the child to marry, or initiating or arranging the marriage.
5.6. THE SWEDISH GOVERNMENT BILL AND THE 2014 LAW AMENDMENTS
The Swedish Government was of a different opinion and did not pass on the report proposal on criminalisation to Parliament. The main argument against the proposal was that criminalisation of child marriages will not be needed when other protective measures are taken, among them criminalisation of forced marriages including such marriages where someone “uses an exposed position” to make her or him accept the marriage.16 The protection for children abroad is also strengthened to some extent by a stricter qualification of those exempt situations where a child marriage can be recognised in Sweden; there will be a need for “extraordinary” reasons instead of the earlier “special”. Another argument was that the FCMP proposal lacked the necessary precision and that the effects of it would sometimes seem unreasonable or had not been carefully analysed.
However, one important part of the proposal was accepted: the introduction of the concept of “informal marriages”. The proposal in the report to criminalise forced marriages, including marriages where an exposed position has been used, contained informal marriages, and they were defined in the same way as in the
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16. “Exposed” (utsatt) is a higher requirement than “vulnerable”; the latter would apply to almost every child.
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proposal regarding child marriages. The definition was somewhat changed in the bill compared to in the report, but in principle is the same. The new law defines an informal marriage as:
“a marriage-like alliance entered into according to rules which are binding for a group and which
1. entail that the parties are regarded as spouses and are considered to have rights and obligations in relation to each other, and
2. include the issue of dissolution of the alliance.”17
A very important and interesting question is whether children will have sufficient protection if the law – like the new law in Sweden – criminalises the act of a person who by using an exposed position induces a person to marry. In the Swedish bill18 this is further developed on p. 141 (my translation ):
“When adults on whom the child is dependent put pressure on the child to marry against her own will or arrange a marriage without consideration to what the child wants, it could [therefore] be a case of using the child’s exposed position. This is true not only for younger children but can also be the case when the child is getting close to 18. In general, however, children are less independent and more dependent on adults the younger they are. [...] A child in its early teens can still be dependent on its parents to such an extent that even relatively mild prompting from the parents can be enough for the child to find it useless to try to oppose the marriage.”
This must mean, for example, that it is still not a crime in Sweden to tell your 15-year-old daughter to marry (religiously if not legally) an older man whom she does not mind marrying, or whom she will marry because she would never even consider opposing the will of her parents. And it is not a crime to arrange the informal marriage of your 12-year-old daughter to a boy whom she really wants.
There could of course be different opinions on whether these cases need to be dealt with by law or not. I believe that they do, and that it is important. These girls are much too young to marry. And therefore the legislator, I believe, is letting girls down by putting decisive weight on whether they were in fact forced, pressed or prompted. Whether they oppose it or not, children are too young to marry, period.
By accepting that the individual needs to be protected not only from legally binding marriages but also from informal marriages, Sweden has, however, come halfway. I hope that other countries will follow this example. And I hope that governments will eventually be persuaded that child marriages need to be ruled
17. Compare with the wording in the report proposal, section 5.4 above. The new provision is found in the Swedish Penal Code (Brottsbalken), Ch. 4 §4c para. 2, in force since 1 July 2014.
18. Government Bill 2013/14:208.
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out completely. The law should be drafted in the interests of all children, based on the knowledge that marrying at a much too early age is detrimental to the child’s personal growth and development.19
6. HOW SHOULD WE COUNTERACT NEGATIVE EFFECTS?
It is clear that there is a danger of negative effects of new laws such as those proposed above. I have come to the conclusion, in section 3, that this danger should not prevent legislation. But that does not mean that the problem should be left without further analysis and consideration. On the contrary: if legislation may create problems it is a matter for society to take the risk seriously and try to prevent or at least alleviate such problems. So we should ask how this could be done.
What possible negative effects are we talking about? There could of course be difficulties in the application of the law, etc. But the legislator is used to handling difficulties of that kind. They are normally taken care of within the law proposal, for example in the form of clarifying statements and examples in the proposed legislation’s travaux préparatoires. The effects that definitely justify some serious thought outside the law proposal itself are those which we touched upon in section 3, those which have to do with the problem that legislation may be felt as an attack on certain groups in society. It could go so far as to stigmatise the groups concerned and even have the effect of supporting xenophobic forces. Right-wing nationalist forces could try to use legislation against child marriages for their own purposes, trying to show that the groups concerned do not belong in our democratic and equal societies. If society, through its laws or otherwise, points at immigrant or minority groups as representing negative behaviour and opinions, such a risk must be taken into account.
In all legislation which may be perceived as directed against a certain group, it is important to underline one thing: all groups, cultures and people deserve basic respect even if their traditions and approach include values that are unfamiliar to the majority in our countries. It is clear that basic respect of this nature can never be allowed to mean any departure from fundamental rights and freedoms. But it should mean that amendments to laws that may be perceived to be directed against the group or tradition be implemented in a tone of voice and with an approach in general which do not create unnecessary confrontation.
So, showing respect, using the right tone of voice and having a general approach of non-confrontation are crucial in respect of legislation of the kind we are discussing. But it is not enough. It is important to also make it clear what
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19. From earlier experience of the legislative process in Sweden I would predict that the Swedish legislator will take the final step quite soon. I believe that child marriages as a crime of its own will be criminalised in Sweden in 10–15 years.
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the real reason for legislation is. Therefore, it must be emphasised that legislation against child marriage is intended to protect children and to safeguard equal human rights for all, not to attack or accuse particular groups. It is also important to be very open about the dangers of negative effects and to initiate a dialogue with those groups that may feel under attack. Those groups should be asked to give their reactions to the law, and their representatives should be given the opportunity to suggest measures to avoid problems. Such suggestions should be taken seriously. And at the same time, if possible, a dialogue could be introduced to increase the will of any directly concerned group to accept the law.
To conclude, when legislating against child marriages states should take measures to counteract the difficulties which certain groups may experience because of the new law. This is not only a matter of respect, tone of voice and non-confrontation, but also a matter of clearly explaining the intent of the law, of openness, dialogue and a willingness to respond to needs expressed.
7. CLOSING REMARKS
There is no doubt that the practice of child marriages can be extremely harmful for the girls at risk. They lose their right to make decisions regarding their own way of life and they lose the chance for an education and for growth and development. It is therefore very important to try to stop this practice. It is so important to protect these girls that states should be prepared to consider actions which they would normally rule out in their legislation.
Child marriages involve, however, problems of an unusual kind. This has to do with the fact that many groups and individuals do not share the view of the majority of our societies that child marriages are necessarily wrong. It has also to do with the fact that legislation may harm those groups and individuals to an extent that is clearly unwanted.
We need to have the individual child in focus, and we need to legislate against child marriages. At the same time we need to take the sensitive situation for the groups concerned into consideration. That makes the drafting and enforcement of legislation against child marriages unusually difficult.
Most important of all is for society to give a strong and persistent signal that child marriages will not be accepted. Hopefully in the long run this signal will convince everyone that the biggest decisions of a person’s life should be taken by that person herself. And they should be taken only when the person is mature enough to have reasonably clear and well thought-out views on what is best for her.