FGM: why prosecutions are not the answer
Female genital mutilation is brutal, but criminal law has proved to be too blunt an instrument to truly protect victims, says Cris McCurley.
Resolution’s domestic abuse committee has called for solicitors, barristers and judges to be offered training on FGM.
The first criminal legislation against FGM was enacted in England and Wales in 1985 with the Prohibition of Female Circumcision Act. In spite of the existence of criminal sanctions, there has never been a successful prosecution under this act; nor has there been a successful prosecution to date under its successor legislation, the Female Genital Mutilation Act 2003.
In recent yearss, thanks to the work of campaigners and survivors of FGM, there has been great pressure on the police and the CPS to bring about a successful prosecution, and, in February 2015, R v Dharmasena ended with the defendant’s acquittal of performing FGM. On the facts of the case, it seemed doomed from the outset. Dharmasena was a doctor attending a young mother after she gave birth in hospital. To allow the labour to proceed, he had to open up (deinfibulate) scar tissue from the mother’s earlier FGM, which he later replaced in order to stem bleeding. The case has provoked much criticism from medical practitioners. The CPS, however, has defended the bringing of the prosecution as a necessary test case, maintaining that it was essential to send a strong message that the law was there to be used. No other prosecutions have been reported.
On 3 March 2015, the Serious Crime Act introduced provisions to tackle FGM both where it occurs in this jurisdiction, and where it is carried out elsewhere in the world. New offences of conspiracy to commit FGM and failing to protect a child either in your care, or a child who you could be reasonably expected to know was at risk, can also result in criminal prosecution. The facilitation or commission of FGM carries a maximum sentence of 14 years in prison. The position is as yet unclear in respect of children living within their families where the local authority shares parental responsibility.
The SCA 2015 also makes provision for anonymity of female victims of FGM to encourage reporting, as well as creating an offence of failing to notify the police that FGM has occurred.
No successful prosecutions
Despite these legislative changes, there have been no successful prosecutions. Like forced marriage, there is a culture of silence around FGM, a pressure to conform to the values of the family and community and not to go against the family honour. Worries are also raised about not wanting to experience racism from white professionals or a fear of seeming to come from a backward culture.
Similarly, the parents who perpetuate this practice are motivated by the deeply seated belief that it is best for their daughters. All of these features make it extremely hard for the victim or potential victim to seek help or even information about what remedies are available to them.
Further, some professionals have been reluctant to interfere in what they may wrongly believe is a cultural or religious practice.
Most victims do not wish to see their parents in trouble with the authorities, and there can also be a fear that reporting will damage the immigration status of victims and perpetrators alike.
For all of the above reasons, the civil protection now offered has been almost universally welcomed as a better solution than criminal sanctions.
In July 2015, the Ministry of Justice introduced FGM protection orders under SCA 2015 s73, which allows for the making of an FGM protection order in England, Wales and Northern Ireland. The timing of the legislation was no coincidence, coming just before the start of the school summer holidays, when young girls are most vulnerable to being taken abroad for FGM.
It was first thought that the Forced Marriage (Civil Protection) Act 2007 would be amended because the FGM protection orders are so closely linked to the legislation for forced marriage protection. However, the SCA 2015 amended FGMA 2003 s5 and Sch 2.
A further amendment was made to the FGMA 2003 requiring any front-line professional working with a child who they believed to be at risk of FGM to make a report to police and children’s social care. Failure to do so could lead to serious disciplinary consequences. This is in particular response to the medical profession, which has long argued that if its members were to report, this would drive the issue underground and keep those in need from their surgeries.
As with forced marriage, these are highly sensitive, complex cases involving often very young people having to take action against their parents and immediate family. The forced marriage protection order is an extremely successful measure that allows young women and girls to obtain protection while not criminalising their families. For the same reason, it is anticipated that the civil procedure for FGM protection will be equally valuable.
The procedural court rules for FGM protection orders are contained in Family Procedure Rules 2010 SI No 2955 Pt 11. Again, they are closely modelled on forced marriage protection procedure. Applications can be made ex parte and protection can be sought both within this jurisdiction and extraterritorially. This is invaluable for victims who fear being removed from the jurisdiction to their countries of origin where they, or their daughters, may be at risk of FGM.
The Home Office has released excellent multi-agency guidelines for those professions now seen to be in the front line, namely children’s social care workers, police, health professionals and teachers. In responding to the consultation about the appropriateness of the guidelines, Resolution’s domestic abuse committee commented that solicitors, barristers and judges should be offered training on FGM, as should Cafcass officers. Resolution is currently putting together guidelines for members and will be adding FGM to its panel accreditation for solicitors.
On 16 June 2015, members of the Law Society access to justice committee met with the MoJ, Legal Aid Agency and Home Office to discuss the imminent legal changes and how the civil applications would be funded. It was decided that they would be funded on the same basis as forced marriage work, outside the graduated fee scheme and paid on an hourly rate. It was also acknowledged that there would be a need for appropriate expert evidence, which may not fit neatly into the LAA expert payment scheme.
FGM in the UK
The impact of FGM is life-long, causing physical and psychological injury. It is not confined to discrete parts of the world. Although it may originate in countries of Africa and the Middle East, as people migrate around the globe, they take their cultural beliefs and practices with them, and it is happening now in the UK.
The Health & Social Care Information Centre reported that there were 3,963 newly identified cases of FGM in the UK in the seven months to March 2015 (FGM March 2015, experimental statistics, HSCIC, 30 April 2015, p9). Research by City University has estimated that 137,000 women and girls in the UK are affected by FGM.
The civil law in practice
Re E (Children) (FGM protection orders)  EWHC 2275 (Fam), 24 July 2015
In July 2015, Zimran Samuel of Garden Court North made a successful out-of-hours application for an FGM protection order, under FGMA 2003 Sch 2 (as amended), to prevent three girls aged 6, 9 and 12 being taken to Nigeria, to be cut. In a powerful statement made by the applicant mother in the proceedings, she said, ‘I have never recovered from the experience of being cut myself,’ adding that the wound still caused her terrible pain. It became clear the danger was a reality when the ceremonial robes arrived from Nigeria to be worn by the children during the cutting ceremony. The application was made just before the children were to be taken to the airport by their Nigerian family, and illustrates the importance of the professional being prepared to take emergency action.
Re B and G (Children) (No 2)  EWFC 3, 14 January 2015
The President of the Family Division, Sir James Munby, gave judgment in the first reported public law case involving FGM in August 2015. In B and G, he found no evidence that the girl, G had been subjected to FGM, but nonetheless felt that the importance of the arguments warranted reporting the judgment.
Munby P stated at the outset that there were three issues of significance that he had to consider in this case:
Had G suffered FGM?
•Does the type of FGM suffered, or indeed any type of FGM, cross the threshold of significant harm for the purposes of Children Act 1989 s31?
•If so, what are the implications for the girl and also for B, her brother?
This case is important for many reasons because of the questions it highlights:
•If it is significant harm in relation to a girl, does that cross the threshold in the case of her brother who, by definition, will not be subjected to FGM?
The case also highlights very significant problems with expert witnesses. Munby P stated that he had not been assisted by any of the three experts in the case, which again raises the question: what is a cultural expert? This is a question that the diversity committee of the Family Justice Board has been attempting to answer for many years. In a current case in Newcastle upon Tyne, HHJ Hudson, sitting as a deputy High Court judge, considered three nominated experts but could not find that any of them would satisfy the court’s needs. As the Home Office multi-agency guidelines state, FGM cases are, by definition, complex, so it is likely that the definition of cultural expert will have to be revisited.
In giving his judgment in B and G, Munby P did not present answers to these critical questions, save for echoing the words of Baroness Hale in the case of Re E that any and all forms of FGM are representative of significant harm and they remain to be considered in each case on merits. He also added that any medic examining an FGM victim must use a colposcope wherever possible, take photographs and make detailed notes to assist in any future court action. He commented that there was a dearth of medical experts in this area, and that use of the WHO definition is essential and the one that must be used for forensic purposes.
Munby P raised a further question, namely whether or not removal of children could be justified if a girl had already been subjected to FGM. Does this mean grounds for removal from her parents’ care no longer exist as the ‘damage has been done’, never to be repeated?
In two cases recently brought by Ben Hoare Bell in the High Court in Newcastle, evidence has been given that FGM is not necessarily a one-time-only procedure. A victim of childhood type II FGM stated that her family threatened her with the more severe type III, because of her ‘promiscuity’ (she had had a child while unmarried). It was also her evidence that the procedure can be repeated.
In the second case, an applicant gave evidence that her mother (born into a tribe which practised type I FGM) forcibly went through infibulation after the birth of her first child following the marriage to the father, whose tribe practise type III. This, she said, resulted in the death of her second child.
What is clear, as cases emerge, is that we as lawyers and as a society are only just beginning to understand how to tackle cases involving FGM. ■