Forced child marriage and female genital mutilation in Australia

Gender inequality in Australia takes various potent forms. The most detrimental being harmful ideologies which result in men seeing women as a commodity, something to be bartered, controlled or harmed in their cultural or religious interests.

Forced child marriage and female genital mutilation are part of these harmful ideological practices that take place even in Australia.  

Forced Child Marriage: 

Forced child marriage is a violation of children’s rights and a direct form of discrimination against the girl child who, as a result of the practice, is often deprived of her basic rights to safety, autonomy, health, education, development and equality.

Many of the girls that are married off as children are being groomed from the moment they are born. The children are usually married in nonlegal ceremonies or taken to their parents’ home countries to marry the men their relatives choose for them - as highlighted in this report.

Forced marriage means you are giving your child to a stranger to rape on their wedding night. 

Forced child marriage constitutes child abuse.

Forced child marriage is defined as: the marriage of a person under the age of 18, obtained through coercion, threat or deception. Forced child marriage is a violation of children’s rights under the United Nations Convention on the Rights of the Child (CRC) and, more widely, a form of violence against women and girls.

The CRC sets out the human rights of children, including the right to survive; the right to develop to their fullest; the 
rig
ht to protection from harmful practices, abuse and exploitation, and the right to participate fully in family, cultural and social life.

In signing the Convention, governments committed to taking ‘all effective and appropriate measures with a view to abolish traditional practices prejudicial to the health of the children’ as stated in Article 24 , includes, among other practices, female genital mutilation and child marriage.

Australia’s existing forced marriage offences capture a range of marriage and marriage-like relationships, and can apply where the victim is taken overseas to be married, or where an Australian citizen or resident is involved in forcing a person to be married overseas.

A forced marriage is a marriage in which one or both spouses do not fully and freely consent to the marriage because of the use of coercion, threat or deception. Forced marriage is a criminal offence punishable by 4 years imprisonment according to the Criminal Code Act 1995 (Cth), Criminal Code ss 270.7A and 27.7B. 

A forced marriage of a child is an aggravated forced marriage offence, punishable by up to 7 years imprisonment as per the Criminal Code Act 1995 (Cth) ss 270.7A and 270.7B.

 

The behaviours associated with child marriage constitute significant harm to a child, and children subject to child marriage are children in need of protection.

In 2013, The United Nations campaign Child not Bride Campaign was launched, with States and more than 550 civil society organisations adopting the first-ever resolution on child, early and forced marriage at the Human Rights Council.

How common is forced marriage in Australia?

International research and statistics indicate that forced marriage is not only a growing problem but an issue in which service providers may only have one opportunity to assist potential victims. 

Forced marriage is a slavery-like practice Anti Slavery Australia director, Jennifer Burn said she was currently assisting “about 70 clients”, all victims of human trafficking, many aged under 18 years.

The National Children’s Youth and Law Centre (NCYLC)’s survey confirms that forced child marriage is a problem in Australia today, with over 250 cases identified by survey respondents in 24 months between 2012 and 2013 and with cases confirmed in each State and Territory in Australia.

The Australian Federal Police (AFP) has investigated 20 matters of suspected forced marriage in Australia from January 1 to September 30 in 2015:

                                                                   8 in NSW;

                                                                   7 in Victoria;

                                                                   4 in Queensland;

                                                                   1 in South Australia.

Eleven of the investigations involved persons under the age of 18 years.

“No charges or convictions have been recorded out of these investigations at this time,” an AFP spokesman said. “Forced marriage matters can be particularly challenging to investigate and prosecute for a number of reasons”. 

The Herald Sun reported foreign clerics had been “entering Australia in order to conduct marriages of under-age girls” - visiting Australia to illegally marry off under-age girls - according to allegations raised with the Federal Government.

Jasvinder – a survivor of forced child marriage in India, now based in the UK, set up an organisation, Karma Nirvana for victims of forced marriage and honour killings in the United Kingdom. Jasvinder set up the hot line hotline in her sister’s honour - her sister burnt herself alive after experiencing severe domestic violence in a forced marriage situation.

“We get victims in Australia calling my hotline all the time seeking support, it’s only been set up for British citizens, but there isn’t a helpline in Australia except for a police one that a lot of people are too scared to call,” Jasvinder said when she visited Australia as an advocate a few years ago.

Forced marriage offences carry a jail term of up to four years, or seven years if the victim is under 18, and 25 years if a minor is trafficked overseas.

 

In Australia, there have been a number of cases that raise concerns about children being removed from Australia for the purposes of forced marriage, such as the case of  Madley & Madley and Anor [2011] FMCAfam 1007; Kandal & Khyatt & Ors [2010] FMCAfam 508. 

Cases of Forced Marriage in Australia:

The Department of Human Services v Brouker and Anor [2010] FamCA 742 case was an application by the Child Protection Section of the Department of Human Services of the State of Victoria to extend an interim injunction obtained ex parte which restrained a 14 year old female child’s parents from taking her out of the Commonwealth for the purpose of marriage.

The Madley v Madley and Anor [2011] FMCAfam 1007 case involved an ex parte application made by a 16 year old child for orders placing herself on the Airport Watch list to prevent an arranged marriage taking place in a non-Hague Convention country36 that was organised by her parents, but that she did not want to occur. An order was granted preventing the child’s removal from Australia by her parents and requiring the surrender of the child’s passport. 

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction might apply if one parent did not consent to the child being sent overseas, the child is under 16 years of age and that parent The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction might apply if one parent did not consent to the child being sent overseas, the child is under 16 years of age and that parent wants the child returned to Australia. If the child has been sent to a country which is not a signatory to the Convention then there is no basis to approach a Court in that country for orders for the child’s return.

In order to provide appropriate protection for victims and to encourage meaningful engagement with the issue, it is important to recognise forced marriage as a form of violence against women and girls.

The forced marriage of a child is a mandatory reporting issue for those who are mandated to report, and also an issue that warrants a voluntary report where the legislation does not specify that reporting is mandatory.

The legislative grounds for intervention define a child ‘in need of protection’ in each jurisdiction.

Child protection requires a comprehensive national approach in Australia that focuses on prevention.

Service providers working on the frontlines need to know how to recognise and respond to forced child marriage cases, particularly how to offer assistance to an individual who may have only one chance to seek help in an environment where there is no coordinated national policy on how to assist victims.

Female Genital Mutilation in Australia: 

Analysis of ABS and UNICEF data suggests that there are 83,000 women and girls in Australia who may have been subjected to FGM. Around 5,640 girls under the age of 15 may be in danger, and 1,100 girls are born every year to women who may have had FGM. This means that three girls a day are born in Australia who are at a high risk of being subjected to FGM.

In 1997, the WHO issued a joint statement with the United Nations Children's Fund (UNICEF) and the United Nations Population Fund (UNFPA) against the practice of FGM.

The World Health Organization (WHO) states that the term female gential mutilation (FGM) refers to all procedures involving partial or total removal of the external genitalia or other injury to the female genital organs for non-medical reasons. FGM is a harmful practice and a violation of human rights of affected women and girls.

Also known as 'female circumcision' or 'female genital cutting', FGM/C is deeply entrenched in cultural and societal meanings and beliefs. FGM/C is considered a normal and necessary aspect of raising a girl properly in preparation for adulthood and marriage in many cultures.

Although in Australia it is illegal to practise FGM [New South Wales, Victoria, Queensland, South Australia, Australian Capital Territory and Northern Territory have legislated against the practice of FGM and it exists in the Criminal Codes of Western Australia and Tasmania], nurses across Australia have reported cases of FGM either of patients needing medical treatment, or in cases of midwives attending to first -time pregnant mothers. 

Shabbir Mohammedbhai Vaziri, who was convicted in a landmark female genital mutilation court case in Sydney this week.

This was evidenced in Australia's first genital mutilation trial last year: where a Sheikh, and the mother, a former midwife were found guilty of mutilating the clitorises of sisters  - the younger sister has a cognitive disability. The girls were aged around seven when the ceremonies took place in Wollongong and Sydney between October 2009 and August 2012 - as reported here.

The procedure, referred to as Khatna was undertaken by forceps by the girls’ paternal grandmother while other family members sat by, praying from the Qu'ran - as reported here. The family are from a Shia Muslim community in Sydney. The maximum penalty for FGM in New South Wales is seven years.

There is no federal legislation regarding FGM/C.

Shabbir Mohammedbhai Vaziri, who was convicted in
Australia’s first female genital mutilation court case
in Sydney this week. Photograph: Dan Himbrechts/AAP

Freedom of Information requests have shown that no other states or territories have ever even had a report of FGM to the police, let alone charges laid.

Several Australian anecdotal studies report evidence of girls who have had FGM both in Australia and overseas. Despite comprehensive mandatory reporting laws, recent research by the Australian Paediatric Surveillance Unit has revealed that a significant proportion of health professionals are not sure of their mandatory reporting requirements when it comes to female genital mutilation.

A survey conducted by Professor Elizabeth Elliott shows that 10 per cent of paediatricians surveyed have seen a girl with FGM.

What can we do about preventing forced child marriage and female genital mutilation in Australia? 

The common thread between the harmful practices of foriced child marriage and female genital mutilation is the violence against women that occurs because of harmful ideologies by men who do not respect women as their equals.

These harmful ideologies affect the stability in the home, may lead to domestic violence, threatens the healthy development of girls, and restricts their physical, emotional, mental and psychological development, and places their academic and career development in jeopardy in cases of forced child marriage. 

If Australia is serious about fulfilling its obligations as a signatory to the Convention on the Rights of the Child, the Declaration on the Elimination of Violence against Women, and the Beijing Declaration, these harmful ideologies need to be addressed in accordance with their committment to taking ‘all effective and appropriate measures with a view to abolish traditional practices prejudicial to the health of the children’ as stated in Article 24 of the CROC, including, among other practices, female genital mutilation and child marriage. 

Australia needs to recognise the urgent need for the universal elimination of any act of gender-based violence, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women

Australia also needs to enforce the application to women of their rights, especially women and girls vulnerable to violence, including women belonging to minority groups, indigenous women, refugee women, migrant women, women in institutions or in detention and female children as laid out in the Declaration on the Elimination of Violence against Women

Australia needs to condemn violence against women and refrain from invoking any custom, tradition or religious consideration to avoid their obligations with respect to its elimination as set out in the Declaration on the Elimination of Violence against Women, and enact and enforce legislation against the perpetrators of practices and acts of violence against women, such as female genital mutilation, female infanticide, prenatal sex selection and dowry- related violence, and give vigorous support to the efforts of non-governmental and community organizations to eliminate such practices, in line with Australia’s agreement in the Beijing Declaration.

 

With over 6,000 people from FGM-affected communities arriving yearly in Australia, education is the key.

It is essential that women are informed about the link between their own health problems and FGM, so that they do not condemn their daughters to the same problems.

It is essential that parents understand the dangers of marrying off their child - placing their young daughter in physical danger, at threat of being raped, abused, beaten, her future hopes of getting an education and becoming independent financially - shattered. 

It is also integral that these new arrivals understand their rights under Australian laws to seek protection from such harmful procedures and practices, and their right to access support services.

The UK's strategy to help identify girls at high risk of FGM which involves a systematic, non-discriminatory collection of information about the women who have had FGM called the FGM Datase, with an alert is added to the medical files of the daughters of women who have had FGM, and their families are provided with education and support should also be considered here in Australia.

The UK has also introduced FGM child protection orders - these protection orders already exist in Australia, but are rarely used.

The following specialist community organisations may also be able to provide help and advice.

How to get help - or provide a referral to someone: 

For more information about forced marriage, go to the Commonwealth Attorney General's website here. 

Another great resource is: Your Tomorrow from My Blue Sky on Vimeo

 

           If you need advice, you can call (02)9514 8115 or send an e-mail to help@mybluesky.org.au or send a text to 0481 070 844.

          Call: 03 9481 3000 

  • AFP:
    Feeling unsafe? If there is an emergency or you are hurt you can call Triple Zero (000) from any phone.

          If you are in, or at risk of, a forced marriage, or you are worried you will be taken overseas to marry you can contact the

          Australian Federal Police on 131 AFP (131 237). Contact can be anonymous.

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