FGM: Protection for victims
According to data published by Equality Now and the City University London in July 2015, approximately 137,000 women and girls are living with the consequences of FGM in England and Wales. In addition, 60,000 English and Welsh girls were born to mothers who have undergone FGM.
Until this year, there had never been a prosecution of FGM and the family Courts had seldom looked at the issue, if at all. The reasons for this are wide ranging and complex and include: the extraordinary difficulties victims might have coming forward, where such victims are likely to be vulnerable either by virtue of age or the social pressure they might be under to conform or stay silent; that other witnesses might also face pressure or intimidation, and that professionals across health, education and social welfare lack awareness or understanding of how to address the issue, particularly without fear of repercussions. Over and above those issues, there has arguably also been a cultural and institutional reluctance to address the issue – it raising a perfect storm of taboo subjects including gender violence and race.
However, this year appears to have seen a real move forward in public awareness of the issue and along side it, judicial consideration of FGM in the context of care proceedings, the first ever prosecution of FGM, and legislation providing for the availability of ‘FGM Protection Orders’.
In January 2015 in B&G (Children) No 2  EWFC 3, the President of the Family Division provided guidance for future cases where, in the context of care proceedings, a child may have suffered from FGM. In the particular case, the President found that the young girl had not been subjected to FGM. However, he provided guidance for future cases, reiterating that any form of FGM constitutes “significant harm” within the meaning of ss31 and 100 of the Children Act 1989 and could never be reasonable parenting (§68, 71). However, he cautioned that “local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption” (§185). The President noted that it was sobering to consider this was the first one of only a handful of FGM cases to have come before the family courts and stressed that local authorities had to be pro-active about taking measures to prevent FGM, that the Court “must not hesitate to use every weapon in its protective arsenal if faced with a case of actual or anticipated FGM” and that the inherent jurisdiction must be mobilised in its prevention (§78).
The first prosecution was also brought this year, despite FGM having been a crime in the UK for 30 years (since 1985; Prohibition of Female Circumcision Act 1985, replaced by the Female Genital Mutilation Act 2003). Although it was unsuccessful (February 2015), against the background of apparent inaction in view of the original 1985 legislation, the case represented something of a milestone and the CPS at the time reported that it had a number of other potential cases under review.
FGM Protection Orders
Finally, also this year, the Ministry of Justice fast-tracked the implementation of a new civil law protection measure to protect girls and women who are victims of, or may be at risk of FGM. The law was brought into force in time for the school summer holidays, a time when girls are particularly at risk of being taken abroad and subjected to FGM. As a consequence, FGM Protection Orders (‘FGMPO’) may be made pursuant to the new section 5A inserted into the Female Genital Mutilation Act 2003 (s73 Serious Crime Act 2015) which provides for a new Schedule 2 containing the provisions to protect a girl against the commission of an FGM offence, or protect a girl against whom a FGM offence has been committed. Changes to the Family Procedure Rule 2010 also came into force introducing part 11 to the Family Procedure Rules, which makes provision for the practice, and procedure to be followed on an application for an FGMPO.
An FGMPO can have a wide remit and contain any prohibitions, restrictions, requirements or other terms as the court may consider appropriate. The terms of a FGM protection order can extend to conduct within the jurisdiction or outside of it and respondents to such an order are people who are, or may become, involved in FGM as well as those who commit or may attempt to commit a genital mutilation offence against a girl. Involvement in such an act is construed widely and can range from aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence against a girl or similarly conspire about such an offence.
On the 17 July 2015, news outlets reported that Bedfordshire police secured the UK’s first ever FGMPO, which resulted in the seizure of passports of two young girls who it was thought could be taken to Africa to be mutilated.
However, the first reported case is that of E (Children) (Female Genital Mutilation Protection Orders), Re, 24 July 2015; the mother applied for an FGMPO in respect of her three daughters. The mother and father were Nigerian and were divorced. The mother stated that she had been forced into marriage, and before the wedding the father's family had forced her to undergo FGM. She continued to suffer pain as a result of the procedure, as the wound had never properly healed and would reopen after sexual intercourse. She was regularly beaten by the father, and came to the UK with her daughters. The father remained in Nigeria. Her daughters were aged 12, 9 and 6. The father was still in contact with the children, and had indicated that the elder two should visit him in Nigeria in the school holidays to undergo genital circumcision. He had obtained robes for the ceremony. The mother made a without notice application under the Female Genital Mutilation Act 2003 Sch.2 Pt 1.
An ex parte order was granted pending a return date. On the morning of the return date, the father was served by telephone with oral notice of the application, and copies of the documents were sent to his mobile phone.
The Court granted the application. The primary category of person who can apply for an FGM protection order is the girl to be protected by the order and a "relevant third party". However, Regulations to define “relevant third party” had yet to finalised, so the mother fell outside that category. She was nevertheless granted leave as ‘any other person’, which stood to be decided by reference to her connection with the girl to be protected. As the girls’ mother, she could not be any more closely connected to them( §17). More generally, the court noted that in deciding whether to make an FGMPO the court had to have regard to all the circumstances, including the need to secure the health, safety and wellbeing of the girl or girls to be protected. The mother's statement illustrated the scourge of FGM and how profoundly damaging it could be, in the short and long term. The Respondent father was also prevented from coming within 100 metres of the children's home or school, but the restriction was purely for the purposes of protecting the girls from FGM, not to protect the mother; if she needed protection, she had a statutory remedy under the Family Law Act 1996 (§26).
Taken together, the comments of the President in B&G (Children), the availability of FGMPOs and an apparent willingness of the CPS to prosecute such cases may have a direct impact on the number of cases being dealt with by the courts, perhaps particularly the family courts. Of course, the B&G (Children) guidance must also be considered along side existing duties. Agencies must co-operate to safeguard and promote the welfare of children by virtue of ss 11 and 12 of the Children Act 2004, which are reinforced by the European Convention on Human Rights (ECHR). (All public authorities and their employees also bear a specific duty under ECHR Art 2 to safeguard the lives of those within its jurisdiction and under ECHR Art 3, that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”).
Professionals are also expected to follow the statutory guidance in Working Together to Safeguard Children (DfE, 2013, updated 2015), which has status under the Local Authority Social Services Act 1970, Children Act 2004 and Education Regulations. Local authorities, amongst other front line professionals, must therefore identify a child who may be at risk of or has been subjected to FGM, respond appropriately – and take measure to implement and prevent the practice of FGM.
Finally, professionals including doctors, nurses and teachers now also have a mandatory duty to report all cases of “known” FGM to the police within one month of initial disclosure/identification, where the instances which are disclosed by the victim and /or are visually confirmed are limited to victims under the age of 18 years old (see, s74 Serious Crime Act 2015 (given Royal Assent on 3 March 2015). Failure to comply with the duty will not carry a criminal penalty but will be addressed through existing professional body disciplinary frameworks. The Home Office has, however, recently published a consultation on making this duty a statutory requirement.
For many years, civil society groups have worked hard trying to raise awareness and push for additional protection for victims or potential victims of Female Genital Mutilation (FGM). Campaigners hope this year’s developments will lead to improved protection for victims.