Child Marriages In The Global Context Law Family Essay

Published Date: 02 Nov 2017

Child Marriages in the Global Context

"I told them I was terrified and desperate, that I was just a child and far too young to get married. I pleaded with them to help me escape, but no one saw anything wrong in what was happening. I begged my husband not to marry me, but he told me I had no choice…I used to scream and cry all night. I was too young, too tender. It killed me inside. Life became meaningless." [1] 

-Young Turkish Kurdish girl, married at age 12-

Marriage is seen by many of us as the beginning of our happily ever after. While we adorn our white dresses and await our Prince Charming; Marriages are not in all cases the fairy tale that we imagine it to be. Just take this account from a man named Mohamed, describing a marriage in a village in Yemen. "She is 10 years old," Mohammed said. "Very tiny. The man she married is 50 years old, with a big belly…Like a rat getting married to an elephant." [2] Child marriage can be found in every region in the world, whether it be in developed, developing or least developed countries, cutting across different cultures, religions and ethnicities. In fact, UNICEF describes child marriage as "the most prevalent form of sexual abuse and exploitation of girls." [3] 

This essay aims to look at the reasons and impacts of child marriage in a global context, detailing on how efficient the current international convention for children and domestic laws are in combating the issue. The essay will look into child marriage; it’s bias especially against the girl child, and it’s causes and consequences, examining every implication of the practice, from its limitation on many of the rights of children and it’s social and health risks. It will try to showcase that child marriage is not just as a problem for developing countries, but also look into the prevalence of child marriage in developed countries like the UK. Furthermore, it will try to understand and impartially look into the reasons for its continuance in society today and how effective the international convention for children has been so far in dealing with the issue of child marriage and end with a few recommendations on how it could be bettered.

A child is defined by the Convention of the Right of the Child (hereby written as CRC) as "a person below the age of 18." [4] Child marriage hence, is the formal marriage or informal union of one or two people who are below the age of 18. Forced marriage on the other hand, is defined as a marriage "conducted without the valid consent of one or both parties and is a marriage in which duress, whether physical or emotional, is a factor" [5] . Child marriages can constitute as forced marriages, when argued under the context that anyone under the age of 18 cannot be able to make a fully informed choice in choosing a lifelong partner. [6] 

Causes of Child Marriage

The factors contributing to child marriage come from poor economical situations, poverty, gender inequality in society, weak laws and inadequate implementation of laws, and cultural and religious justifications. Although child marriage includes boys, most children married under the age of 18 years are girls. In Mali, ratio of married girls to boys is 72:1; in Kenya, it is 21:1; in Indonesia, it is 7.5:1; in Brazil, it is 6:1; and even in the United States, the ratio is 8:1. [7] This could be due to many factors.

Prevailing gender roles determine the path of a child’s adolescence in many cases, and tend to create pressure upon girls to get married sooner. While boys in their adolescence get pressured to succeed in school, engage in sports and other activities, and interact in society, girls are rarely supported, and in many cases frowned upon, from developing in such social and economic activities, hence narrowing their identity to the role of a wife or mother. This can be seen quite clearly even from a simple thing such as the Hindi term ‘paraya dhan’ which refers to older daughters living with their parents. Its literal meaning is "someone else's wealth."

Poverty is considered to be one of the major factors behind child marriage. In many developing countries, child marriage is linked with poverty, as both a cause and consequence. In such cases, girls are considered as ‘economic burdens’ [8] and marrying them off at an early age is seen as a survival tool to trade off and settle debts rendering girls as "an object of economic transaction whereby their parents attain greater financial stability and their husbands acquire slave labour" [9] . In fact, studies show that the poverty-ridden countries with extremely low levels of socio-economic development also seem to have the lowest average age of marriage. [10] 

Also, research on age at marriage in different countries, suggest that getting married and bearing children are often the only means for young girls to secure identity and status in families and as adults in society. [11] In a UNICEF study of 42 countries, women between the ages of 20 and 24 who attended primary school were less likely to marry by age 18 than women without a primary education. [12] The same study found that in Tanzania, when compared to women who studied up to primary school, women with secondary education were 92 per cent less likely to be married by the age of 18. Hence, while we think that child marriage is the reason why girls cut short their education, it might be that lack of education is what leads to child marriages as well.

Furthermore, many religious leaders are seen to endorse early marriages. In Islam, many preachers claim child marriage to be acceptable due to their belief that the Prophet Mohammed married Aisha when she was 9. [13] Even though this claim is debatable, many religious families, especially ones in the rural areas tend to marry their children off early, in a mosque or shari’ah court, under their religious leaders assertions. Even so, statistically speaking, no one separate religious affiliation has been associated with child marriage, according to a 2007 ICRW study [14] . Rather, a variety of mixing of religions and customs that portray gender discrimination seem to be associated with child marriage in countries throughout the world.

In many cultures around the world, a girl’s virginity is not only associated with herself but also with her family members, whose honour and shame are linked to the chastity of the women in their family. In fact in some cultures, marriage provides the only acceptable solution to a pregnancy that occurs outside of marriage, due to bans in abortion and social stigma. Traditional cultural norms of older men marrying young, virginal girls to prove their masculinity also continue to drive this behaviour. [15] 

"Nobody [protests against early marriage] because all take daughters as a burden. They fear that their daughters might get involved with other boys and that is why they want their daughters to get married at an early age."-Respondent in a focus group of rural unmarried girls, Nepal 2000- [16] 

Consequences of Child Marriage

Child marriages forces girls who are not yet fully developed emotionally and physically, into pregnancy and childbirth, which at that age are often life threatening. "Adolescent girls between the ages of 15 and 19 are twice as likely to die during pregnancy or childbirth, as women in their 20s, and for those under 15 the risks are 5 times higher." [17] Furthermore, children who are married young usually do not have proper sex education and do not know how to use contraception, or protect themselves from diseases. As a result, these children suffer vulnerability to HIV/AIDS, and many other sexually transmitted diseases. Studies also show that girls who are married off as children themselves, are more likely to have more children, while being less able to provide for them. [18] As they grow older, abandonment and divorce are also common with husbands leaving the marriage to find work elsewhere, seek additional wives or even abandoning their young wives altogether. This plunges these child brides and their children into poverty and the vicious cycle continues.

Child spouses have low bargaining power within the marriage even to begin with, due to the fact that they are, in reality, children thrust into an adult relationship, and hence are more likely to experience violence by their wives, husbands or their in-laws. Child marriage increases chances of being abused and with less knowledge of their own rights, they are also the least likely to take action against the abuse. In Kenya, 36 per cent of girls married before 18 believe that a man is justified in beating his wife. [19] 

A child who is married off at a young age loses the label of "child" while still psychologically and emotionally immature. Some observers call this a stage of being a "social misfit" because she fits in neither with children nor with adults. While most states and the international community at large, seem to be in agreement that childhood should last till 18, we see child marriages ripping the innocence of childhood from these children, right under our noses.

Child Marriage: A Global Issue

Nepal

Like many other countries, Nepal does not have a consistent definition as to what constitutes a child within the law. Marriage laws in Nepal considers ‘girls’ to be 14 years or less, while it’s Children’s Act defines ‘child’ as children below the age of 16 years. [20] On the other hand, the Labour Act of 1991 defines a child as a person below the age of 14 years. [21] This inconsistency leads to a lot of negative usage of the loopholes in the system, to provide ‘legal’ justification for child marriages. It also leaves children who are married off between the ages of 14 to 16, in a legal void.

The Nepalese Child Marriage law also treats boys and girls differently in cases of child marriages. Child marriages concerning girls are considered a higher offence with more severe penalties compared to that of child marriages with boys. Also, a case must be filed within three months of the child marriage or it is not taken into account. This could prove to be inadequate since reporting of cases in Nepal takes a long time due to bureaucratic procedures and general lack of awareness of the illegality of child marriage.

United Kingdom

In the UK, a marriage in which one of the spouses is under 16 years old was made illegal in 1949. Now, in England, Wales and Northern Ireland, women and men can be married once they are 18 years old, yet there are provisions for marriage with parental consent between the ages of 16 and 18. In Scotland, minimum age of marriage is 16 and marriage does not require parental consent. Some parents do use these loopholes in the law to force the marriages of their children who are aged 16 or 17.

Research conducted in 2008 showed that between 5,000 and 8,000 people are at risk of being forced into marriage every year in England. [22] In September 2012, journalists from the Sunday Times reported the results of an undercover investigation during which Imams in London and Peterborough had agreed to conduct the marriage of a 12-year-old girl. [23] In 2012, 29% of the cases received by the Forced Marriage Unit in UK concerned minors, with the youngest being just five years old. The UK also has a Forced Marriage (Civil Protection) Act 2007 which came into force in 2008. The aim of the Act was to provide civil remedies for those faced with forced marriage, and victims of forced marriage.

International Framework and their Effectiveness

"In spite of international agreements to implement measures to protect children from slavery, discrimination and other forms of sexual abuse and exploitation, there appear to be little recognition that the same forms of abuse occur within the domestic setting of marriage." [24] 

Convention on the Rights of the Child (CRC) [25] 

The CRC is the first legally binding international instrument to address the issue of human rights in regards to children. It sets out 54 articles detailing the rights and responsibilities of children and two optional protocols specifically addressing children in armed conflict, sale of children, child prostitution and child pornography. All countries of the UN, except the United States and Somalia have ratified the CRC. The CRC, with it’s wide range or rights and specific protocols on certain rights issues, does not contain an explicit provision on child marriage. Even so, virtually every article of the CRC has some relevance in regards to the issue of child marriage.

For a start, Article 1 of the CRC states that "a child means every human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier. ' [26] The word "majority" is not defined in the CRC and is left to be interpreted, but could be seen as attaining legal capacity. Even so, this could be quite problematic in the case of a married child, who as mentioned before is in a void between being a child and an adult. If society pleases, it could view him or her as an adult thus rendering the CRC irrelevant to her situation and taking her off its protection. And indeed, many domestic laws explicitly provide that a person attains majority upon marriage regardless of her age, [27] thus creating an exception to the general "rule of 18" that the CRC envisages yet fails to capture properly.

Other articles in the CRC that could help children in such situations include, Article 2 of the CRC which prohibits "discrimination" of any form against children, including on the basis of sex, [28] and Article 3 which provides that "in all actions concerning children ... the best interests of the child shall be a primary consideration," [29] and that States Parties must "ensure the child such protection and care as is necessary for his or her well- being...." [30] . Article 24.3 provides that States Parties shall take measures to abolish "traditional practices prejudicial to the health of children. [31] This provision could be used against child marriage, given the link between child marriages and traditional customs as well as its health risks associated with sexual intercourse and childbearing and sexually transmitted diseases.

The CRC also provides that all children shall have the right to protection from all forms of physical or mental violence, injury, abuse, exploitation; the right to health; the right to education; the right to protection from abduction, the right to rest and leisure, the right to protection from economic exploitation and the right to protection from all forms of exploitation. [32] Furthermore, with the optional protocols, children in specific circumstances, like child soldiers are given certain rights applicable to their circumstance. Given the horrific consequences of child marriage as well as its abundance throughout the world, which was outlined earlier, it is preposterous that there is no special provision or optional protocol designed under the CRC for their protection.

There are also other provisions of the CRC that are quite daunting to children who are married, and are in many ways a direct contradiction to the provisions previously cited. From the CRC’s point of view, children are seen as particularly vulnerable and although they are given a right to be an individual and make decisions for themselves in Articles 12 and 13, it is contradicted by other articles empowering parents to decide for their children, such as Article 5 and 18, undermining the child's right to freedom of expression and to assert his rights, implying parents will act in their child's best interest. But as we have seen in the issue of child marriages, parents play a significant role in pushing these children into marriage and hence cannot always be said to act on their best interests. Furthermore, when children are considered incapable of deciding for themselves, parents or legal guardians are given the power to decide for them, rendering children to a position where there have limited rights and are incapable of taking life choices as important as choosing their life partner.

Given all these shortcomings and ambiguities, CRC cannot be seen as providing a strong framework for prohibiting child marriage and perhaps further reform and stronger implementation is necessary in order to strengthen the international framework regarding child marriage.

Future Steps

With all these laws, and conventions in place, it is startling that child marriage still persists in our societies. As I have addressed in this paper, it is not merely a developmental issue but one that seems to cross cultural and religious barriers. It stands proof that laws alone are not capable of bringing the change required. And that even the laws that are in place, seem vague and sometimes, even opposing the rights of these children.

One of the main actions that were found successful in many of the researches was the provision of better care and education to the children who are already married. This is quite important in stopping this vicious cycle, as this allows the child to make better decisions for her future and her children. Further more, alternative programmes like the ‘booking’ system [33] in Kenya, a system where the soon to be husband’s family pays for the education of the bride as a form of ‘reservation’ to later get married, have proved to be quite successful. And also the commendable works of NGOs and international organisations which aim to educate the parents on the risks of early marriage and early parenthood, provide resources and education to children regarding sex, puberty and child bearing as well as life skills to make them more independent and capable of making their own decisions. Even in the state levels, there needs to be more freedom for children to come out and express their concerns and issues as well as gain justice for any wrongs that have been committed against them.

The UN CRC, as it is, provides children from all around the world with a blanket bill of rights. As I have discussed before, the fact is children trapped in marriages are in a vacant space between being an adult and a child; they are children, yet are burdened with the responsibilities of an adult and the fact that society construes them as adults. This could take them out of the protection of the UNCRC and hence is detrimental to their interests. To remedy this effect, it is important that special provisions are created under the CRC to protect children from marriages and protect children in marriages. Furthermore, much like the Optional Protocol in CEDAW, it could be very beneficial to have a reporting mechanism where children can report straight to the Committee on the Rights of the Child. If such reforms can be brought to the CRC, and implemented by all state parties, it is quite likely that child marriages will be a thing of the past, in the near future.