The Malta Independent 30 November 2022, Wednesday
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‘Child marriage is not a crime in Malta, Criminal Code needs amendments’ – legal experts

Semira Abbas Shalan Sunday, 25 September 2022, 07:30 Last update: about 3 months ago

Child marriage is not a crime in Malta, cultural and legal experts have told The Malta Independent on Sunday, insisting that amendments should be made to our laws to make this practice illegal.

They specified that not all forced marriages are child marriages, but they insisted that children are more vulnerable than others and so require the necessary protection.

What was described as an undocumented reality in Malta came to greater public attention recently. Girls as young as 12 have been disappearing from their classroom after being married off to older men, educators who reached out to the Women’s Rights Foundation have said, Times of Malta reported earlier this month.

Two years ago, a father who allegedly subjected his daughter to violent beatings in an attempt to force her to marry the man of his choice was denied bail after protesting his innocence in court.

The 43-year-old Syrian national, who had fled Syria and relocated his family to Malta, was arrested after his 15-year-old daughter’s call for help back in 2020.

The Malta Independent on Sunday contacted cultural and legal experts on the issue. They explained that there are undocumented communities in Malta, the majority of them of Syrian nationality, who have been marrying their daughters off to older men in recent times.

The legal experts said that there have been instances where Syrians have been arriving in Malta illegally and reside here, untraced. A Syrian man, who lives in Malta, was charged in court only last Monday on accusations of human trafficking after he allegedly coordinated the arrival of a group of illegal immigrants to Malta.

The children are being married off to older men through an Imam from another country even through a Zoom video call. The legal experts speculated that they could also be sending the couple and their families to Sicily to be married off there.

Malta does not recognise any of these marriages under the law, as one can only get married civilly, while Catholics may also choose to get married in the church. But, as things stand now, the Maltese law does not offer any protection to children who are forced to marry adults, as child marriage is not listed as a crime.

If caught by the police, authorities can prosecute individuals who get married illegally to children under the grounds of “ill-treatment of a child”, they said.

In the Maltese Criminal Code, under Article 251G introduced in 2014, the offence of forced marriage could lead to three to five years in prison. This was introduced by the Istanbul Convention through chapter 581, on gender-based violence.

But there is no specific mention of child marriages. Child marriages would constitute as separate offences from the one of forced marriage of adults, as the law as it is says that technically, forced marriage and child marriage are not necessarily the same, they said.

The legal experts also quoted Article 247A in the Criminal Code, which includes the ill-treatment or neglect of a child under 16 years of age.

The article dictates that:

247A (1) Whosoever, having the responsibility of any child under 16 years of age, by means of persistent acts of commission or omission ill-treats the child or causes or allows the ill-treatment by similar means of the child shall, unless the fact constitutes a more serious offence under any provision of this Code, be liable on conviction to imprisonment for a term not exceeding two years.

(2) For the purposes of sub-article (1), ill-treatment includes neglecting the child’s need for adequate nutrition, clothing, shelter and protection from harm, persistently offending the child’s dignity and self-esteem in a serious manner and persistently imposing upon the child age-inappropriate tasks or hard physical labour.

(3) The provisions of article 197(4) shall also apply in the case of an offence under this article, when the offence is committed by any ascendant or tutor.

The cultural and legal experts posed the question, is ill-treatment of children being prevented? And by whom?

Asked if it would be a whole other ordeal if for example, during this marriage, an underage girl was forced to be in bed with these men, then would it become statutory rape? They replied that there hasn’t been a case so far that tested this in a court of law, the legal experts said.

Muslim marriages also have the tradition of a dowry, where an amount of money or other offerings would be brought to the bride and her family by her husband on their marriage. In these child marriage cases, it is the husband who “buys” the child by giving a dowry to the girl’s family.

Malta’s laws removed this type of marriage dowry settlement in 1993, they said.

Asked if these child marriages could be annulled, they said that they essentially cannot be annulled as under Maltese law, the marriage would not exist, as it is not recognised.

“If they do not go through the processes of civil marriages or marriages by the Church, the marriage does not exist. The individuals would not have the protection the law provides. Repercussions can only be persecution towards the parents of the child and the husband through the offence of ‘ill-treatment’ of a child,” they said.

“The Criminal Code must be clearer. A paragraph could be added to Art. 247A as a deterrent to those who marry their young girls off to older men and the punishment could also be increased,” they said.

“The law needs to be called by name, for sure. There needs to be improvement,” they added.

The victims of these marriages – the girls – also need more services where they can speak up about this, they said. They added that these girls could face ostracization and their rights would be breached. They could also refrain from speaking up out of fear of their parents being persecuted.

“There needs to be more specialised people working on these cases on a wider remit,” they added.

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