Family
Female genital mutilation: a 'brutal and horrific invasion’
Pam Sanghera defines what female genital mutilation is, and describes the relevant legislation and the protection available to women and girls.
About the author
Pam Sanghera is an award-winning lawyer, who represents clients nationally and internationally in relation to all cases involving an international element. In many cases involving the movement of children, child abduction and abandoned spouse cases, FGM often presents as a fundamental issue which requires immediate protection.
In today’s society, in the 21st century, it may be fair to comment that we embrace all races, cultures and traditions. Different customs and rituals can be interesting when they are unfamiliar, and the natural desire to learn or get involved can evolve. Regretfully, among these practices include what some individuals describe as a cultural ritual or traditional custom, ie, the mutilation of a girl’s or woman’s genitals.
This vicious and barbaric act, which is performed without fail on young girls, tends to be practised the most overseas - in Africa, the Middle East and Asia - although not exclusively. With cheap travel and freedom of movement, the risk has evolved all over the world where individuals still value and adhere to cultural traditions and rituals, but are not necessarily living in their country of origin.
A custom or tradition FGM may be, though certainly in some cases the author has seen, mothers have attempted to protect their daughters from attack, which has allowed them to develop naturally into young women, living without the traumatic experience of FGM but with the fear of being caught. Unfortunately, achieving womanhood does not act as a bar to FGM: women are equally at risk of genital mutilation as girls.
One case the author dealt with, involved an African village where girls were at risk while simply walking to and from school. What appeared to be groups of people, tasked with checking whether young girls had been circumcised, were said to simply kidnap the victims and take them to a designated person to perform the act, with or without parental permission.
Section 1 of the Female Genital Mutilation Act (FGMA) 2003 defines female genital mutilation as an offence if a person excises, infibulates or otherwise mutilates the whole or any part of a girl’s [or woman’s ] labia majora, labia minora or clitoris.
Any female subjected to such an attack would be physically and psychologically affected for the rest of her life. The harm done is physical and dangerous, which can affect girls and women through various stages of their lives, for example, through puberty, maturity, pregnancy and childbirth. The psychological effects are traumatising: FGM will never be forgotten.
Female genital mutilation protection orders came into force in July 2015, when the FGMA introduced to the law of England and Wales, and Northern Ireland FGM offences as per section 73 of the Serious Crime Act (SCA) 2015.
Sch 2, Part 1 of the FGMA provides protection orders aimed specifically at girls and women. The Act gives power to the court to make a FGM protection order for the purposes of ‘( a) protecting a girl against the commission of a genital mutilation offence, or (b) protecting a girl against whom any such offence has been committed.’
The state or an individual can apply for such protection orders. The burden of proof is on the person or state seeking the order, and the standard of proof applied is on the balance of probabilities (In Re B (Children) (Care Proceedings: Standard of Proof) (Cafcass intervening) [2008] UKHL 35; [2008] 2 FLR 141 and Re S-B (Children) [2009] UKSC 17). The court must give consideration to all the circumstances of the case, including the need to secure the health, safety and well-being of the girl to be protected. In addition, the court must consider the proportionality of making such an order in the light of any risks assessed, and having full regard to the rights, under articles 3 and 8 of the European Convention of Human Rights, of the family members concerned. The order itself is an umbrella to many prohibitions, restrictions and requirements that the court may impose, as deemed appropriate. The court has the power to impose such other terms which are specific to the case, as required. For example, the circumstances of the case may mean that a judge has to make orders imposing conditions on a person who may not necessarily be in the UK. FGM was considered by Sir James Munby, President of the Family Division, In the matter of B and G (Children) (No 2) [2015] EWFC 3, who stated:
FGM is a criminal offence under the Female Genital Mutilation Act 2003. It is an abuse of human rights. It has no basis in any religion. I repeat what I first said as long ago as 2004 in Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] 1 FLR 308, para 68: it is a ‘barbarous’ practice which is ‘beyond the pale' (para 55).
In Re X (A Child) (Female Genital Mutilation Protection Order) (Restrictions on Travel) [2017] EWHC 2898 (Fam), the Honourable Ms Justice Russell adjudicated on a case involving a 14-monthold baby, who was at risk of FGM in Egypt by the paternal family. The mother, who converted to Islam having married the father, an Egyptian national, wanted to stay with the father for six months and to enjoy time as a family. The local authority applied for a FGM protection order believing the child to be at immediate risk, and part of that application was for a specific restriction against the mother taking the child out of the country. The local authority presented its case, having made enquiries with experts that under Egyptian law the FGM protection order would not be recognised in Egypt and there was no equivalent protection order that could protect the child while there. The case presented that the father had the power under Egyptian law to prevent both the mother and the child leaving Egypt, ultimately placing the child at immediate risk. Ms Justice Russell commented:
The practice of FGM has been universally condemned nationally and internationally; it is a heinous and brutal invasion of the person and body of girls and women which is entirely without redeeming feature; it cannot be excused for any reason be it psychological, cultural, religious or social. As the President said it has been described as ‘an evil practice internationally condemned and in clear violation of [article] 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950’ and by Lady Justice Arden in the same case as ‘a repulsive practice … deleterious to women's health (para 65).
Under FGMA s5(b), inserted by SCA s74, it is mandatory for persons working in regulated professions to take action and notify the appropriate authorities, including the police, if it appears that FGM has been carried out on a girl under the age of 18. Where a girl is at risk, the authorities are to be informed so protective steps can be taken.
Section 3A of the FGMA, as amended, provides for the offence of failing to protect a girl from the risk of FGM. The offence occurs if a genital mutilation offence has taken place and the offender is a person responsible for the girl. In Re X (A Child) (Female Genital Mutilation Protection Order) (Restrictions on Travel) above, the father was defined as such by virtue of section 3A(3) (a) and (b) as he had parental responsibility. The only defence is where a party demonstrates satisfactorily that they could not have reasonably been expected to be aware that any such risk was present.
The court must also give full consideration to a child's rights and those of her parents, in particular, their right to a family life as in this case:
[Article] 8 is a qualified right which includes at 8(2) the exception of necessity for the protection of health and morals and for the protection of the rights and freedoms of others. [Article 3] is an unqualified right that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. If a similar ‘procedure’ were to be carried out on the genitalia of an adult male or female without their consent it would fall within the prohibitions of [article] 3; it is no different for a child (para 75).
As effective as such protective orders have been since they came into force, it remains an ongoing struggle to charge alleged perpetrators in the UK, often due to lack of evidence to prosecute. A recent media report confirmed that a London man, originating from Africa, was charged with the offence of FGM, among other offences, including child cruelty and wounding a child. If the prosecution is successful, it will be the first conviction in the UK for FGM. This offence is campaigned against actively in support of women’s and children’s rights.
What should we look out for? The author has seen many cases where parents, often mothers, seek advice in relation to a different matter, not appreciating how serious FGM is.
Practitioners should be alive to linked cases and any risks that present as these are not always obvious to vulnerable clients. The sheer nature of the risks involved require expert knowledge and experience in dealing with these cases.