Family law consultation: draft impact assessments

Potential reform of minimum age of marriage and civil partnership - draft Child Rights and Wellbeing Impact Assessment (CRWIA)

Introduction

Brief Summary

The draft CRWIA relates to a decision of a strategic nature relating to the rights and wellbeing of children.

The Scottish Government is consulting on whether to introduce legislation in the Scottish Parliament to raise the minimum age of marriage and civil partnership from 16 to 18. This draft CRWIA is intended to support the consultation. We would publish a finalised CRWIA and a Statement of Compatibility if legislation is introduced.

Name the proposal and describe its overall aims and intended purpose.

Potential reform of the minimum age of marriage and civil partnership.

The Scottish Government is consulting on whether it should introduce legislation (subject to the timetabling of the proposed legislation being agreed with the Parliamentary authorities) seeking to raise the minimum age of marriage and civil partnership from 16 to 18.

We are also consulting on whether the existing forced marriage or forced civil partnership offence (the forced marriage offence) should be extended to criminalise any non-coercive conduct for the purpose of causing a child (a person under 18) to enter into a marriage or civil partnership.

This draft CRWIA is intended to support the consultation. If it is decided that the legislation will be introduced, a CRWIA will be completed for that legislation and will also include evidence from the consultation.

Start date of proposal’s development: 7 December 2023

Start date of CRWIA process: 6 February 2024

With reference given to the requirements of the UNCRC (Incorporation) (Scotland) Act 2024 which aspects of the proposal are relevant to children’s rights?

Increasing the minimum age of marriage from 16 to 18 in Scotland will directly affect any 16- or 17-year-olds who wish to marry or enter a civil partnership. It may indirectly affect any children of these individuals, for example because marrying or entering a civil partnership with a child’s mother is one way for a father to obtain parental responsibilities and rights. In addition, a man is presumed to be the father of a child if he was married to or in a civil partnership with the mother, although that presumption can be rebutted.

Extending the forced marriage or forced civil partnership offence could indirectly affect children by potentially deterring their parents and others from arranging non-binding marriage ceremonies for under-18s without the use of violence, threats or another form of coercion.

We have met with a range of stakeholders, held an internal framing exercise, and gathered statistical information on the numbers of marriages and civil partnerships involving a party aged 16 or 17 and about forced marriage involving children. We discuss this evidence at more length in this section 3 below. Some stakeholders favour reform, but others have concerns.

We will consider the outcomes of the consultation before we decide on next steps, and we would publish an updated full CRWIA and a Statement of Compatibility with any legislation.

However, at this stage and subject to the consultation outcomes, based on the available evidence, we think that the following Articles are relevant to our future decisions:

• Article 1 (definition of the child), in that these potential reforms may give better recognition that all under 18s are children. We note that stakeholders with concerns about reform note that 16 and 17 year olds have a number of rights which they consider consistent with the minimum age of marriage and civil partnership being 16, for example children can leave home at 16 as parental responsibilities and rights largely fall away then, other than the responsibility to give guidance, and 16 and 17 year olds can vote in Scottish elections.
• Article 3 (best interests of the child), in that the reforms being considered may help ensure that children have access to the necessary care and protection for their wellbeing. No protections are currently in place specifically intended for 16 or 17 year olds marrying or registering a civil partnership. We are aware of some concerns that an extension of the forced marriage offence to include non-coercive conduct with the purpose of causing a child to marry might not result in increased reporting rates. This would mean Police Scotland are not aware of potential crimes and we do not know of such non-binding marriages or civil partnerships taking place.
• Article 5 (parental guidance and a child’s evolving capacities) in that our view is that one potential option for reform, introducing parental consent to allow a 16 or 17 year old to marry or enter a civil partnership, is not appropriate. It could be a vehicle for pressure. Parents still have a parental responsibility to offer their child guidance up to the age of 18 although other parental responsibilities and rights fall away when a child reaches 16.
• Article 6 (life, survival and development), in that permitting children to marry or register a civil partnership may affect their future wellbeing. This is specifically in relation to article 6(2) which outlines that state parties should ensure to the maximum extent possible both the survival of the child but also the development of the child.
• Article 19 (protection from violence, abuse and neglect) as evidence noted in question 3 below by those in favour of the reforms, suggests that permitting 16 and 17 year olds to marry or enter a civil partnership exposes them to an increased risk of abuse or exploitation.
• Article 24 (health and health services) as evidence noted in question 3 below by those favouring reform, indicates that child marriage is associated with health harms arising for girls from pregnancy and for the children of young mothers. The consultation concerns the minimum age of marriage and civil partnership and not the age of consent to sexual intercourse, which is 16, however the ability to marry or enter into a civil partnership may increase the risk of 16 and 17 year old girls falling pregnant.
• Article 28 (right to education) in that evidence noted in question 3 below by those favouring reform, suggests that allowing children to marry may result in their leaving education earlier than would otherwise be the case. In Scotland, you can leave education once you are 16.
• Article 34 (sexual exploitation) and Article 36 (other forms of exploitation) in that permitting 16 and 17 year olds to marry or register a civil partnership may expose them to an increased risk of exploitation. The evidence suggests that this occurs more for girls aged 16 or 17 who marry than boys, which means that they are typically marrying older men.

Please provide a summary of the evidence gathered which will be used to inform your decision-making and the content of the proposal.

We will update and complete this CRWIA once we have analysed the

responses to the consultation, considered any further evidence identified, and the Scottish Ministers have decided on next steps. We will publish a completed CRWIA and a Statement of Compatibility with any legislation introduced to the Scottish Parliament. Meantime we have summarised the available data and evidence, including points made by stakeholders in advance of the consultation in meetings with them, to help those taking part in the consultation with understanding what the current evidence suggests and why this proposal is being explored.

Statistics

In 2023, very few marriages in Scotland- around 0.07% (21 out of 26,753) - involved a party or parties under 18.

The numbers of such marriages appear to be reducing over time: in 2013, there were 50 such marriages and in 2017, there were 24. There were 4 civil partnerships between 2005 and 2023 involving a party or parties under 18.

Data shows that more girls marry aged 16 or 17 than do boys of the same ages. We obtained data from NRS specifically on the sex of 16 and 17 year olds marrying. Between 2013 and 2023, there were 276 marriages involving a party under 18, 247 involving a girl aged 16 or 17, and 59 involving a boy of either of those ages. Girls are typically marrying older boys or men.

In 2023, the UK Home Office and Foreign and Commonwealth Office’s Forced Marriage Unit (FMU) handled 70 cases involving victims who were under 18. This is 25% of all its cases. 2% (6) of all cases in which the FMU gave support or advice (283) involved a victim living in Scotland. However, Scottish victims often seek advice and support from organisations closer to home. For instance, Scotland’s Domestic Abuse and Forced Marriage Helpline reports that between 2019 and 2022, there were 125 helpline contacts handled relating to forced marriage, 115 relating to a woman or a girl. There is more data on contacts between victims of forced marriage including children and young people and the main specialist support organisations in Scotland for female victims in our Forced Marriage Statutory Guidance - gov.scot (www.gov.scot).

The evidence is that forced marriage is not limited to any one community in Scotland.

International evidence

The UN Committee on the Rights of the Child and the Committee on Eliminating Discrimination against Woman issued a joint General Recommendation which notes international evidence about the impacts of early or child marriage:

“Child marriage is often accompanied by early and frequent pregnancy and childbirth, resulting in higher-than-average maternal morbidity and mortality rates. Pregnancy-related deaths are the leading cause of mortality for girls between 15 and 19 years of age, whether married or unmarried, around the world. Infant mortality among the children of very young mothers is higher (sometimes as much as two times higher) than among those of older mothers. In cases of child and/or forced marriage, in particular where the husband is significantly older than the wife, and where girls have limited education, the girls generally have limited decision-making power in relation to their own lives. Child marriage also contributes to higher rates of school dropout, especially among girls, forced exclusion from school and an increased risk of domestic violence, in addition to limiting the enjoyment of the right to freedom of movement.”

In 2023, the UN Committee on the Rights of the Child’s Concluding observations on the combined 6th and 7th periodic reports of the United Kingdom of Great Britain and Northern Ireland recommended that the UK:

“Prohibit all marriages of children under 18 years of age, without exception, in Scotland, Northern Ireland and all overseas territories and the Crown dependencies of Guernsey and the Isle of Man.”

Article 16(2) of the United Nations Convention on the Elimination of All Forms of Discrimination against Women provides:

“The betrothal and the marriage of a child shall have no legal effect….”

We know that, in line with international concerns, some Scottish stakeholders have previously called for reform of the minimum age of marriage and civil partnership, including Together (Scottish Alliance for Children’s Rights) and the Children and Young People’s Commissioner for Scotland.

Framing exercise

A variety of points were made at an internal Scottish Government framing exercise, which was attended by officials from the Family Law Policy Unit, Justice Analytical Services, the Equality Unit Gender and Violence against Women and Girls team, and from the Children’s Rights Unit:

• The number of registered marriages involving under 18-year-olds is very low, but the evidence clearly indicates more girls under 18 marry than boys. It appears that marriage under 18 typically involves young women in mixed sex relationships with an older boy or man.
• Some stakeholders expressed concern that marrying at a young age can potentially increase the chance of experiencing domestic abuse.
• There needs to be a balancing act when considering the rights we afford children and the protections we need to put in place for them.
• It can be confusing for children to be allowed to do certain things but not others.
• We do not have evidence to explain why people under 18 choose to marry, however a lack of opportunities for young people in Scotland could lead them to choose to marry.
• While the number of 16 and 17 year olds entering into a marriage or civil partnership is very low, increasing the age to 18 could be seen more as a symbolic act where Scotland would be aligning with the recommendations of the United Nations Committee on the Rights of the Child, and with other countries which have also fixed their minimum age of marriage at 18.
• Increasing the minimum age could be argued to increase safeguards for young people but such a change could also be seen as removing their right to marry or enter a civil partnership.
• Reaching a view on reform in this area is potentially cross-cutting. We currently permit 16 and 17 year olds to exercise a range of other rights with or without additional protections.
• We will need to try to consult with more young people and are exploring the options to involve them in the consultation. We have previously sought their views at a Scottish Youth Parliament workshop.
• It has been suggested to us that there could be adverse impacts for the Gypsy/Traveller community in Scotland because there may be more marriages involving parties aged 16 or 17 in that community, such marriages typically last, with single parenthood in the Gypsy/Traveller community being uncommon. This is anecdotal evidence as we do not have statistics in this area.
• Increasing the minimum age of marriage and civil partnership could have a positive effect on instances of forced marriage.
• A lot of pressure to get married could come from family members or the wider community.
• Some stakeholders have expressed views that more should be done to educate children on the rights that they have.
• A number of stakeholders we met expressed the initial view that there were other options for protecting children that might have more success than changing the forced marriage offence.

Stakeholder meetings

As well as this internal framing exercise, SG officials have gathered views and evidence from various stakeholder groups before the decision to issue a public consultation. These included:

• AMINA- Muslim Women’s Resource Centre
• Article 12 in Scotland
• Association of Registrars of Scotland
• Caledonian Humanist Association
• The Church of Scotland
• Evangelical Alliance
• The Free Church of Scotland
• Hemat Gryffe Women’s Aid
• Humanist Society Scotland
• IKWRO Women’s Rights Organisation
• Independent Humanist Ceremonies
• JustRight Scotland
• Karma Nirvana
• Minority Ethnic Carers of People Project (Gypsy/Traveller Carer’s Project)
• Scottish Council of Jewish Communities
• Saheliya
• Scottish Women’s Aid
• The Scottish Association of Mosques
• Shakti Women’s Aid
• Sikhs in Scotland
• Together (Scottish Alliance for Children’s Rights)
• UNICEF UK
• The United Free Church of Scotland

Officials also met with:

• some members of the Scottish Youth Parliament at a workshop
• some academics

The Minister for Victims and Community Safety met with Pauline Latham who, when she was an MP, promoted legislation in the UK Parliament which raised the minimum age of marriage and civil partnership in England and Wales to 18 and extended the forced marriage offence there. The Marriage and Civil Partnership (Minimum Age) Act 2022 came into effect in England and Wales in February 2023.

We also spoke to Police Scotland and the Crown Office and Procurator Fiscal Service to inform them of our work in this area and to seek background information.

The following is a high-level summary of key points made at the informal stakeholder meetings and not a full analysis of the views expressed. We note that some organisations did not have an agreed organisational policy.

A number of stakeholders who favoured raising the minimum age considered that this change would increase the protections for young people and allow them to reach full maturity before making this decision. Some felt that increasing the minimum age of marriage would help ensure that there was consistency in the adoption of appropriate child protection measures if someone at risk of what could be a forced marriage was aged 16 or 17. Others noted that raising the minimum age of marriage and civil partnership would remove the right to marry from those aged 16 and 17, when this right might be considered consistent with other rights exercisable by those of these ages. We are aware it has been suggested that there is a lack of evidence of the extent to which the harms associated with child marriage are experienced in Scotland.

There were mixed views concerning the need for any additional action to protect those below the minimum age of marriage and civil partnership by extending the criminal offence of forced marriage or forced civil partnership.

Some felt that an offence relating to underage marriage where coercion is not involved should be given careful consideration before being proposed. A number mentioned that the affected child might be very reluctant to seek any help if this might eventually criminalise their parents or other family members, when their view was that they were not experiencing coercion. Some wondered whether other pre-emptive action such as education and awareness raising should be taken instead of amending the forced marriage offence.

Views of children and young people

At the online workshop with some members of the Scottish Youth Parliament a range of views was expressed about both reforming the age of marriage and extending the forced marriage offence. For example, some favoured the minimum age of marriage remaining at 16 as, in their view, it would then remain consistent with other rights acquired at 16, whereas others suggested that 18-year-olds would be better able to make the decision to marry than a younger person and that 16 and 17-year-olds could be more easily taken advantage of. We have set out a summary of the views expressed at the workshop in the Annex.

We are also aware of a World Vision report published in 2020 setting out the views of children and young people affected by the issue of child marriage in countries facing humanitarian crises: ITAW-FY20ChildVoiceReport_10.indd (worldvision.org.uk) (pdf). This included input from 22 children and young people aged 12- 17 in the UK.

We are aiming to gather more information about the views of children and young people in Scotland during the consultation.

Other evidence

We are aware it has been suggested, in an article by the Law Society of Scotland, that there might be injustice for those in same-sex relationships arising from increasing the minimum age of marriage and civil partnership to 18. This is because the underlying drivers for change may be seen as being associated with the gendered relations of men and women where men are seen as the primary authority figures.

Further to the evidence described at ‘3’ have you identified any 'gaps' in evidence which may prevent determination of impact? If yes, please provide an explanation of how they will be addressed.

Not applicable at this stage

Analysis of Evidence.

Not applicable at this stage

What changes (if any) have been made to the proposal as a result of this assessment?

Not applicable at this stage of policy development.

Conclusion

As a result of the evidence gathered and analysed against all UNCRC requirements, what is the potential overall impact of this proposal on children’s rights?

This is not applicable at this stage. The Scottish Government will reach decisions on bringing forward a Bill after the consultation responses have been analysed and considered.

Children’s Rights

Positive

Negative

Neutral

No impact

If you have identified a positive impact on children’s rights, please describe below how the proposal will protect, respect, and fulfil children’s rights in Scotland.

This is not applicable at this stage. The Scottish Government will reach decisions on bringing forward a Bill after the consultation responses have been analysed and considered.

If a negative impact has been identified, please describe below. Is there a risk this could potentially amount to an incompatibility?

This is not applicable at this stage of policy development. The Scottish Government will reach decisions on bringing forward a Bill after the consultation responses have been analysed and considered.

Mitigation Record

What options have been considered to modify the proposal in order to mitigate negative impact or potential incompatibility issues?

Issue or risk Identified per article/ Optional Protocol

Action Taken/ To Be Taken

Date action to be taken or was taken

As a result of the evidence gathered and analysed against all wellbeing indicators, will the proposal contribute to the wellbeing of children and young people in Scotland?

Yes

No

This is not applicable at this stage of policy development.

If yes, please provide and explanation below:

How will you communicate to children and young people the impact that the proposal will have on their rights?

This is not applicable at this stage.

Post Assessment Review and sign-off

Planning for the review of impact on children’s rights and wellbeing (Guidance Section 3.2, pages 27).

This is not applicable at this stage.

Sign off (Guidance Section 3.2, page 28).

This is not applicable at this stage of policy development. This will be completed after this consultation and views have been obtained from consultees

Policy Lead Signature & Date of Sign Off:

Deputy Director Signature & Date of Sign Off

Annex to draft CRWIA on potential reform of the minimum age of marriage and civil partnership

Summary of views from a workshop with MSYPs

Minimum age of marriage should be raised to 18, or more protections should be in place for 16 or 17 year olds who want to marry

• You are more physically mature at 18
• Need to be educated to make this kind of decision
• An 18-year-old is more likely to be aware of their routes for accessing support
• 18 year olds are better able to make the decision to marry
• Raising the minimum age of marriage will protect children as they can more easily be taken advantage of at 16 or 17
• There may be a power imbalance between parties to a marriage where there is an age difference
• Holding off marriage to 18 allows a young person two more years to think whether it is the right decision for them
• Entering into marriage is exercising a more important right than working full time or voting
• What is the secure source of income for a 16-year-old who is marrying?
• 16- or 17-year-olds should not lose the right to marry but should have to speak to a social worker before marrying or a court should have to decide

Minimum age of marriage should stay at 16

• 16-year-olds already have a range of rights, it would be inconsistent and potentially complex to change just the age of marriage, but not other rights received at 16
• Taking away the right to marry at 16 implies that young people do not have the ability to make informed choices for themselves. 16-year-olds are competent enough
• Not many people are getting married at 16 or 17 so what is the beneficial impact of change? Low numbers surely demonstrate that there is not an issue
• Age alone is not an indicator that a person is making or will make a bad decision
• Raising the age of marriage would be against the point of having the Scottish Youth Parliament because it suggests that people this age cannot make their own informed decisions
• If the actual problem is that underage children are being encouraged (but not necessarily coerced) into non-legal religious or cultural marriages, raising the minimum age for legal marriage will not help with that
• Is there evidence that marriages entered into at 16 or 17 are more problematic than other marriages? In any event, divorce is not in itself wrong.
• The age of criminal responsibility is 12 so why shouldn’t children be able to marry at 16?
• There is nothing illegal in having consensual sex at 16 so you should also be able to marry
• 16 and 17 year olds should still have the freedom (as adults do) of making a bad choice
• Scotland should not have to “set an example” for other countries

Improving protections for children and young people

• Adults should be penalised for making decisions for a young person they cannot make for themselves
• Children should not have to come forward for protection and will be reluctant to do so, they will be under pressure anyway
• School and community support should be available
• This is a very sensitive area
• Don’t make blanket bans
• There would be tremendous pressure on children and their families arising from investigations into an alleged offence where no coercion is involved in the marriage
• Need to support Personal and Social Education Teachers help pupils at risk
• Some schools have their own Community Support Police Officer who could help
• We should encourage community reporting of people at risk from an underage marriage- would something similar to the Prevent Strategy be useful?