On 16 June 2021, Sajid Javid MP introduced a Private Members’ Bill into the UK Parliament to raise the minimum age of marriage in England, Wales and Northern Ireland to 18. This follows earlier attempts by Pauline Latham MP to criminalise child marriage. Currently, teenagers aged 16-18 may marry with their parent’s consent (in Scotland, they can already marry without parental consent). From an international law perspective, this Bill would end child marriage in the UK (which the international community has pledged to stop by 2030). Philosophically, it raises interesting questions about what decisions people should be permitted to make at 16; and the balance between maximising people’s options, and protecting a small number from significant harm.
The United Nations views anyone under the age of 18 as a child.[i] The age between 16 and 18 is, however, something of a grey area in terms of what decisions people are allowed to make for themselves. Shakespeare’s Juliet – at 13 – would nowadays not be able to legally marry her Romeo (or Paris), even if her father approved. Brooke’s original Capulet, at 16, however, could – if she lived today – join the army[ii]; drive a car; consent to her own medical treatment; buy a lottery ticket; and vote (in Scottish elections). However, although she could marry, she could not legally buy a knife to cut her wedding cake; toast her union with alcohol; bet on who might catch the bouquet; get a tattoo commemorating the date; have a credit card with which to buy a dress; or (in England) leave full-time education/training after the honeymoon.
Campaigners for raising the minimum age for marriage and civil partnerships argue all marriages of under-18s are child marriages, and a form of child abuse. This follows from the UN’s definition of a child. Logically, then, perhaps we should prevent under-18s from doing a great many things they are currently legally allowed to do – including entering into consensual sexual relationships.
Campaigners against child marriage, however, do not go this far, recognising there are some things we should allow 16- and 17-year olds to do that we do not, for instance, allow 15 year-olds to do, as well as there being some things people cannot do until they are 18. Their argument is that marriage is more like tattooing, smoking and drinking than it is – say – like consenting to medical treatment or driving a car (or even voting). Marriage, they argue, is a serious, life-long commitment that people should not enter into until they are adults. Sexual relationships may plausibly be much more short-term, and (with decent sex-education) need not involve making life-changing or long-term decisions.
Raising the minimum age of marriage might be seen as a paternalist argument: 16- and 17-year olds are not yet mature enough to make such a life-changing decision. In itself, this might not be a reason for dismissing the argument – after all, there are plenty of cases in which it is perfectly permissible to make paternalist decisions on the behalf of children. But actually, the argument from campaigners is less about protecting children from themselves (and their bad decision-making) for their own good, and more about protecting some children from harm inflicted by their families.
Campaigners describe the existing law as a “loop-hole” which allows parents to force their children to marry. That is, parents interpret the phrase “with parental consent” as meaning only parental consent really matters, not that of the child themselves.
Campaigner and survivor Payzee Mahmod speaks powerfully on this issue, as do many others[iii]. When someone’s parents have decided they ought to marry, it is very difficult for adolescents to resist. They may face psychological pressure, but also frequently face physical force – sometimes fatal. If it was illegal to marry, however, the child need not try to oppose their parent’s will: the State would be doing that instead. “It’s not legal” is (sadly) a more effective discussion-stopper than “I don’t want to”.[iv]
One way of framing the campaigners’ request, then, is that 16- and 17-year olds who do wish to marry are being asked to defer that decision for (at most) two years in order to help protect other people their age from serious harm. This is not a paternalist request. It does require limiting the options of many people because of the serious harm threatened to a much smaller – though by no means insignificant – number. But this sort of consequentialist balancing happens all the time in public policy. Were there to be any real-life Romeos and Juliets, would waiting two years to get engaged really be a significant harm? And could it possibly outweigh the harm faced by those at risk of a forced marriage?
[iv] This is one reason why current legislation on forced marriage is not enough to prevent child marriages: it is very difficult for those at risk to resist pressure to marry, and particularly to cooperate with police in bringing a successful prosecution, one reason why there have only been three prosecutions in the seven years since forced marriage was made a crime in the UK.
Helen McCabe is Assistant Professor of Political Theory in the School of Politics and International Relations at University of Nottingham. Her book John Stuart Mill, Socialist came out with McGill-Queens University Press in March 2021. In January 2020 she started an AHRC Leadership Fellowship looking at the connection between forced marriage and modern slavery. She is also Principle Investigator on an ESRC-funded project looking at the impact of Covid-19 on forced marriage in the UK, and an AHRC-funded collaborative research project on empowerment of survivors of human trafficking in Kenya via ethical story-telling and participatory photography. She is part of the Rights Lab, a University of Nottingham beacon of research excellence, and the world’s largest interdisciplinary group of modern slavery researchers. You can listen to Helen talking about the connection between forced marriage and modern slavery on The Rights Track, visit her research website at forcedmarriageresearch.ac.uk, and follow @rightsbeacon to find out more about our anti-slavery research.