Family Law

As International Women’s Day approaches, the United Nations has set out its vision of a world where women can exercise their choices free from violence and discrimination.

Here, we take the time to reflect on a few of the global issues affecting women, and what’s been happening within the Scottish legal system to bring about change.

Female Genital Mutilation (“FGM”)

The United Nations describes FGM as a practice which reflects “deep-rooted inequality between the sexes, and constitutes an extreme form of discrimination against women and girls”; both the UN and the European Union called on states to take concrete action against FGM on the ‘International Day of Zero Tolerance for Female Genital Mutilation’, which takes place annually on 6 February.

In Scotland, the Female Genital Mutilation (Scotland) Act 2005 makes it illegal for anyone who is a permanent resident to circumcise or assist in the circumcision of a girl or a woman.

The European Commission identified that, while all EU Member States have legal provisions in place to prosecute perpetrators of FGM, prosecutions are very rare.

Police Scotland reported 14 possible cases of FGM in the year to August 2014, and there were no prosecutions.

One attempt to improve the outcomes can be found in the Serious Crime Bill 2014.

The term “permanent resident” will be replaced with the term “habitual resident”, with the aim of ensuring that a person who is not a permanent resident will be able to be prosecuted in the Scottish courts for FGM.

Forced Marriage

The position of the UN is that marriage shall be entered into only with the free and full consent of the intending spouses.

The Scottish Government acknowledges that “forced marriage can affect men, women and children of many ages and backgrounds.”

However, it is estimated that in the UK 82% of the victims of forced marriage are female.

The Forced Marriage etc. (Protection and Jurisdiction) Scotland Act 2011 came into force in November 2011 and gives courts the power to issue Forced Marriage Protection Orders to those at risk of forced marriage.

Breach of an order carries a two year prison sentence.

It was only on September 2014, however, that forced marriage became a criminal offence in Scotland.

The impetus for this change was the European Union’s Istanbul Convention.

It is now a criminal offence for a person to use violence, threats or any other form of coercion to force another person into a marriage. The maximum custodial sentence is 7 years.

Domestic Abuse

In January, it was reported that the number of domestic abuse prosecutions increased by 25% in a one year period.

Clare’s Law, which was introduced in England following the murder of Clare Wood by her ex-boyfriend, allows both women and men to access information on their new partner’s offending history.

It recently crossed the border and Police Scotland’s Disclosure Scheme for Domestic Abuse is currently being piloted in Ayrshire and Aberdeen.

The scheme provides a mechanism to share relevant information about a partner’s abusive past with potential victims and gives people at risk of domestic abuse the information to assist in making an informed decision on whether to continue in a relationship.

The pilot began in November 2014 and will run for six months.

At the end of the six month period, the pilot will be evaluated to ascertain whether it will be rolled out across Scotland.

Last month, police in Aberdeen hailed the first three months of the pilot scheme a “total success” after twelve people made applications for information.

Looking Forward

Taking time to reflect on International Women’s Day affords us an opportunity to see how much can change in the legal landscape in a relatively short space of time.

We invite you to keep on top of legal changes taking place in Scotland by subscribing free to our blog, or following our team on our @BFamilyLaw twitter feed.


Kirsty McGuinness

Kirsty McGuinness

Associate at Brodies LLP
Kirsty is an Associate with experience in all areas of family law. As a result of her calm approach and a firm grasp of the law, her practice includes a significant number of difficult and challenging cases.
Kirsty McGuinness

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