by Katy Macfarlane, Senior Lecturer in Child and Family Law, University of Edinburgh.
In Part 1 of this blog, I examined the work of UNICEF and the UNFPA to end the practice of child marriage by 2030. What has this got to do with Scotland? The majority of the consequences of child marriage that are highlighted in Part 1 do not apply in Scotland – do they? We live in a progressive, child-focussed, child-centred society. We care about children and child protection – don’t we? In Scotland, the average age of the parties to a marriage is mid-30s. The average age that a woman in Scotland gives birth is between the ages of 30 and 34.[1]
Scotland can ably demonstrate that, in setting the legal minimum age for marriage and civil partnership at 16, it has complied with the relevant international human rights conventions. For example, Article 2 of the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (which the UK ratified in 1970) states that, “States Parties […] shall take legislative action to specify a minimum age for marriage […]”.and it goes on to say that, “No marriage shall be legally entered into by a person under this age”.
Article 1 of the same Convention states that, “No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person” – something that is almost always missing from the child marriages described in Part 1.
In Scotland, full and free consent by both parties to any marriage is essential and fundamental to a valid marriage. Where consent is tainted through incapacity or where consent results from duress or error, then the marriage will be rendered void.[2]
Other legal protections can be found in the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011, whereby, on application to a court, a forced marriage can be rendered void and a Forced Marriage Protection Order can be granted to protect the person from the threat of being forced into a marriage. There has been a number of cases that have successfully been heard in Scottish courts and resulted in the protection of a person who has been, or may be, forced into a marriage.[3]
Not only that, under section 67(2)(q) of the Children’s Hearings (Scotland) Act 2011, a child can be brought to a children’s hearing where they “have been, or are likely to be, forced into a marriage, or where the child is, or is likely to become a member of the same household as such a child”. (There is also a similar ground for referral – section 67(2)(p) – that relates to civil partnerships.)
Scotland prides itself as a child’s rights defender. The laws cited above prohibit under-16s from being married; they protect all persons who lack capacity from entering a valid marriage; they protect all persons from being forced into a marriage. But, are legal protections enough to satisfy those who lead the charge to raise our minimum age of marriage to 18? For how long can Scotland morally defend its current legal position which sets a minimum age of 16 to marry or register a civil partnership?
The pressure to reconcile section 1(1) of the Marriage (Scotland) Act 1977 with Article 1 of the UNCRC is intensifying. The UN Committee on the Rights of the Child in its Concluding Observations in June 2016 (para 19) “recommends that the State party raise the minimum age of marriage to 18 years across all devolved administrations”.[4] In its most recent Concluding Observations published in June 2023 (para 18), the Committee raised concerns, again, that, “marriage under 18 years of age remains permissible in Scotland”. It goes on to state (at para 18(b)) that, “The Committee recommends that the State party […] prohibit all marriages of children under 18 years of age, without exception, in Scotland, Northern Ireland and all overseas territories”.[5] The Committee welcomed the measures taken to prohibit marriage under 18 years of age in England and Wales.[6]
It is relatively straightforward to identify and defend the robust legal protections in force in Scotland to prohibit under 16s from marrying, and to protect 16 and 17-year olds (and, indeed, all ages) from entering a marriage where consent is tainted or the marriage is forced. It is far less easy to identify and defend the subtle, often hidden, often life-changing consequences of marriage that takes place in Scotland where one or both persons are under 18. These consequences may not readily equate to the extreme consequences described in Part 1 for parties to a child marriage in places such as South Asia, Sub-Saharan Africa, and East Asia and the Pacific, but if we apply the UNICEF definition of child marriage to Scotland then it could be argued that we are falling short of our international obligations to protect children under the age of 18 from any and all of the consequences of child marriage.
Since the UK ratified the UNCRC in 1991, the Scottish government (and its predecessors) have gone to lengths to respect the obligations set out in the Convention and to fulfil the recommendations made by the UN Committee in its Concluding Observations. Scotland is in the process of incorporating the UNCRC into its domestic law.
Take education, for example: Article 29(1)(a) of the UNCRC sets out the obligation on States Parties to provide education that is “directed at the development of the child’s personality, talents and mental and physical abilities to their fullest potential”. This principle has been enshrined in section 2(1) of the Standards in Scotland’s Schools etc. Act 2000.
While there is no active intention by the Scottish government to raise the school leaving age beyond age 16, research suggests that if a girl or a boy marries under the age of 18, then this will often be accompanied by leaving school (if they haven’t already left) and, therefore, having no further access to state-provided formal education. Not only might this limit educational progress into further or higher education or entering an apprenticeship or training programme – especially if the female has early age children – but it can be detrimental, for example, to wellbeing, general mental health, family and other relationships and social contributions to society. All of these factors can severely limit or delay a young person fulfilling their potential in life. Looking at the wider consequences, early marriage can have a significant impact on national development and economic progress.
Marriage before the age of 18 can also be argued to cut short the person’s childhood and prematurely impose adult emotional, financial and often family responsibilities that restrict social and personal development, achievements and goals. This applies equally to girls and to boys. Having the opportunities, options and challenges that are out there are fundamental to the pursuit of achieving life goals and successes. UNICEF research confirms, generally, that marriage at a young age, becomes far less attractive where there are other educational and productive options available, and where key services are put in place to divert from what might seem like the only or best choice.
Research is also available to show that people under the age of 18 can more easily be persuaded, coerced or forced into a marriage. Those extra two years of maturity between the ages of 16 and 18 combined with more life experiences can make a significant difference to the choices made.
Further, in situations where a 16 or 17-year old marries, then the risk of being the victim of domestic abuse is considerably higher. Research by Scotland’s Domestic Abuse and Forced Marriage Helpline has found that, in coerced marriages there is a very high incidence of domestic abuse. Calls to the helpline showed that almost 30% of callers were girl children under the age of 18.
The question is: where do we sit on the debate on “child marriage” in Scotland?
As a nation that is intending to incorporate the UNCRC, we must ensure that we are complying with its obligations. There is no express mention of marriage in the UNCRC, but several of its Articles are very relevant. For example:
Article 1 – “a child means every human being below the age of 18 years”;
Article 2 – all children are to be treated equally and “without discrimination of any kind”;
Article 6 – States Parties ensure the development of the child “to the maximum extent possible”;
Article 12 – the right to express a view in matters affecting the child;
Article 13 – the right to freedom of expression, which includes the right to seek and receive information;
Article 29 – that education should be “directed to the development of the child’s personality, talents, mental and physical abilities to their fullest potential”.
There are also several Articles that set out the protections that a child should be given in relation to exposure to abuse and sexual abuse.
Scotland has a good track record in its responses to the recommendations in the UN Committee’s Concluding Observations. For example, the Age of Criminal Responsibility (Scotland) Act 2019 raised the age of criminal responsibility from age 8 to age 12; the Children (Equal Protection from Assault) (Scotland) Act 2019 abolished the defence of “reasonable chastisement” in relation to physical punishment of a child by a parent. Is it significantly more complex to amend our legislation to increase the minimum age of marriage from 16 to 18?
UNICEF has stated clearly that child marriage is a violation of human rights.
The Parliamentary Assembly of the Council of Europe in Resolution 1468 (on Forced marriages and child marriages) (dated 2005) at paragraph 7, confirms the definition of “child marriage” as, “the union of two persons at least one of whom is under 18 years of age”.
It then goes on to say, at paragraph 8 (and the Assembly does not mince its words):
“The Assembly deplores the drastic effects of marriage on married children. Child marriage in itself infringes their rights as children. It is prejudicial to their physical and psychological welfare. Often an obstacle to school attendance, child marriages may be prejudicial to children’s access to education and their intellectual and social development, in that they restrict their horizon to the family circle”.
The Assembly states that: “Such marriages should, in fact, no longer take place in our societies which uphold human rights and the rights of the child”.
Scotland is a society that prides itself in upholding human rights and protecting the rights of the child. Raising the minimum age for marriage and civil partnership to age 18 will further demonstrate our firm commitment that Scotland is a defender of children’s rights.
[1] The most up-to-date statistics are for 2022. See: https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/births/births-time-series-data
[2] See section 20A of Marriage (Scotland) Act 1977.
[3] For example, see City of Edinburgh Council v S 2015 SLT (Sh Ct) 69; C v T 2022 Fam LR 39.
[4] See https://www.unicef.org.uk/babyfriendly/wp-content/uploads/sites/2/2016/08/UK-CRC-Concluding-observations-2016-2.pdf
[5] https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC/C/GBR/CO/6-7&Lang=en
[6] ibid, at para 4.
