Roger Birch discusses FGM, the recent changes under the FGM Act 2003, and the Duty to Notify which was introduced on 31 October 2015.
A brief introduction to FGM
Let us not be under any illusion that FGM is the unnecessary infliction of serious physical damage to the vagina and psychological trauma to the female victim. Those societies who practise such acts claim it is for the child’s and/or woman’s benefit. It has been called the “Perfect Storm of Taboo subjects: gender violence, sexual liberty and race” to refer to the vagina but such practices are a violent abuse of a female and the UNHCR has referred to such practices as a “form of gender based violence that inflicts severe harm on victims, both mental and physical, and amounts to persecution”.
The French former justice minister Richida Dati summed up France’s attitude, saying: “This mutilation has no foundation in any religion, philosophy, culture or sociology. It is serious and violent abuse of a female. It cannot be justified in any way. FGM is a crime”
FGM has been divided into 4 categories, they are:
Type I: - Clitoridectomy
This is the partial/complete removal of the clitoris.
Type II: - Excision
This is the partial/complete excision of the clitoris, labia minora and the labia majora or a combination of all three.
Type III: - Infibulation
This is the narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris.
Type IV: Miscellaneous/Other
These are unclassified harmful procedures for example, pricking, piercing, incising, scraping, cauterising. Some of these may be difficult to detect in older children or adults.
It is to be noted that there may be overlapping between the Types I to IV and those professionals involved with health care, social care professionals and teachers have a duty to make themselves aware of these issues.
The complications and risks are, inter alia:
- Failure to heal
- Recurrent abscess formation
- Recurrent urinary tract infections
- Urinary difficulties
- Menstrual problems
- Pelvic pain
- Difficulties in giving birth
- Sexual problems
- Psychological problems
The serious effects of FGM
In the extreme cases a covering seal is created (infibulated) and this is associated with the most severe complications, in that, the sowing up of the vagina to an extent that a small aperture remains to allow for urination and menstrual bleeding. To create such a small aperture is just horrific and causes serious injury to those subjected to such practices. Of course there will have to be deinfibulation for sexual intercourse and childbirth.
There is an interesting documentary film called “Warriors” directed by Barney Douglas that has been made by the Young Maasai Warriors who have formed a cricket team. But as they say, “there is a darker heart to the story”. The “Maasai are male dominated. Women have few rights even over their own bodies – girls as young as 6 have suffered FGM”. The young cricketers “face resistance from the Elders of their community – well respected and wise men who hold all the Maasai traditional practices dear and carry great influence” .
The issue is to change the social views in a society where it is practised. “Can cricket really bring a change to the region”? The Young Maasai cricketers have stated that they will not marry a girl who has been the subject of FGM.
The Kenyan Government has made FGM illegal. However, there has to be a will on the part of the state to enforce the legislation and eradicate the practice.
For example, in Article 5 of Maputo Protocol  FGM has been banned. There are 28 countries that have ratified the Protocol including Djibouti but 85% of women undergo FGM in that particular country.
There is a harrowing report by Fausia Hassan who is now 13 years old who was the victim of FGM at the age of 11. Fausia is from Kenya. In the edition of the Womens enews.org dated the 13 November 2015 there is an article on Fausia which states, inter alia:
“An operation to reopen the vagina-de-infibulation is often performed ritualistically before marriage or childbirth.”
“Recutting before intercourse is traditionally undertaken by the husband or one of his female relatives using a sharp knife or a piece of glass, according to World Health Organisation information about Type III. “
“Modern couples may seek the assistance of a trained health professional, although this is done in secrecy, possibly because it might undermine the social image of the man’s virility.” 
There has been an unfortunate trend towards the medicalization of FGM. In the African Journal of Urology it was stated that:
“A joint technical consultation on the medicalization of FGM held by WHO, UNICEF and UNFPA in Nairobi, Kenya, from 20 to 22 July 2009 condemned the practice of female genital cutting by medical professions in any setting, including hospital and other health establishments. Demographic and Health Surveys data show that the medicalization of FGM has increased substantially in recent years, particularly in Egypt, Guinea, Kenya, Nigeria, Northern Sudan, Mali, Yemen and recently in Indonesia”.
This introduction of FGM may well shock and it is intended to shock. All children deserve the protection of its family and/or those who have care. They should not be the subject of such appalling procedures which is an infringement of their Human Rights.
Sections 1 to 3 of the Female Genital Mutilation Act 2003 (the 2003 Act) created three criminal offences. These offences came into force on the 3 March 2004. A further criminal offence under Section 3A of the 2003 Act extended liability for those persons responsible for the girl. This offence came into force on the 3 May 2015. Also on the 3 May 2015 Section 4 of the 2003 Act extended the provisions contained in sections 1 to 3A to extra-territorial acts [or omissions].
Duty to notify the Police of FGM - England and Wales
On the 31 October 2015, Section 5B (Duty to Notify) and 5C (Guidance) of the 2003 Act was brought into force. Whilst the 2003 Act has created criminal offences involving FGM the Act has moved a step further in placing a duty on the regulated profession, if in the course of their work they discover FGM on a girl under 18 years, to report such an act to the Police. This extends the policing of FGM into the professions who regularly come into contact with girls and removes the “obligation of confidence” owed by the person making the disclosure and any other restriction on the disclosure of information. See Section 5B (7) of the 2003 Act.
This is in my opinion an important step in in the policing of FGM because it does not solely rest with the abused girl to report the FGM. This has been and will remain a problem because of family pressure and culture. It creates a duty on the regulated professional to take action and not just sit back behind the “obligation of confidence”.
Section 5B of the 2003 Act states, inter alia:
A person who works in a regulated profession in England and Wales must make a notification under this section (an “FGM notification”) if, in the course of his or her work in the profession, the person discovers that an act of female genital mutilation appears to have been carried out on a girl who is aged under 18
For the purposes of this section-
- A person works in a “regulated profession” if the person is-
- a healthcare professional,
- a teacher, or
- a social care worker in Wales;
b.a person “discovers” that an act of female genital mutilation appears to have been carried out on a girl in either of the following two cases
The first case is where the girl informs the person that an act of female genital mutilation (however described) appears to have been carried out on her,
The second case is where-
- the person observes physical signs on the girl appearing to show that an act of female genital mutilation has been carried out on her, and
- the person has no reason to believe that the act was, or was part of, a surgical operation within section 1 (2) (a) or (b).
Subsection (5) of Section 5B of the 2003 Act provides for a mandatory notification to the Chief Officer of Police for the area in which the abused girl resides and identification of the girl and an explanation of why the notification is made. Furthermore the notification must be made within one month of the first discovery and it may be made orally or in writing. Although Section 5B (5) (c ) of the 2003 Act states that notification should be made within one month it is submitted that notification should be made as soon as possible. Professionals should not sit on such important information. Later on in paragraph 25 of this article reference is made to a Home Office Report called “Mandatory Reporting of Female Genital Mutilation – procedural information”. In paragraph 2.2 of this Report it states “that reports should be made by the close of the next working day”.
It is interesting to note that the duty to report does not include a situation where the mother and/or father inform the Regulated Professional. However, this would be covered by reporting through existing safeguarding procedures. However, on a practical matter if the girl then agrees that she has been the subject of FGM then it is suggested that the mandatory duty to report would be triggered.
Subsection (11) of Section 5B of the 2003 Act defines healthcare professional, social care worker and teacher. “Registered” in relation to a regulatory body, means registered in a register that the body maintains by virtue of any enactment.
The duty applies to all regulated professionals, (as defined in Section 5B (2) (a), (11) and (12) of the 2003 Act) working within health or social care, and teachers. It will therefore include (with the exception of the Pharmaceutical Society of Northern Ireland) those regulated by the:
- General Chiropractic Council
- General Dental Council
- General Medical Council
- General Optical Council
- General Osteopathic Council
- Health and Care Professions Council (social workers)
- Nursing and Midwifery Council
- Teachers – this includes qualified teachers or persons who are employed or engaged to carry out teaching work in schools and other institutions, and, in Wales, education practitioners regulated by the Education Workforce Council
- Social care workers in Wales
It is to be noted that the provisions in Section 5B refer to the “Regulated Profession” and therefore will not relate to Non Regulated Healthcare Staff who should report through existing safeguarding procedures.
Section 130 - Social Services and Well-being (Wales) Act 2014
Section 130 of the 2014 Act will come into force in April 2016. This section will require “relevant partners” (defined in Section 162 (4) of the 2014 Act) to inform the local authority where they have reasonable cause to suspect that a child within the local authorities area is at risk. This will include FGM. To comply with both duties, professionals in Wales who identify cases falling within the FGM mandatory reporting duty will need to make a report to both the police and the local authority. The Home Office will issue further guidance in advance of Section 130 of the 2014 Act coming into force.
Section 5C of the 2003 Act provides for guidance, Section 5C states, inter alia:
- The Secretary of State may issue guidance to whatever persons in England and Wales the Secretary of State considers appropriate about-
- the effect of any provision of this Act, or
- other matters relating to female genital mutilation.
A person exercising public functions to which guidance is given under this section must have regard to it in the exercise of those functions.
Section 5C of the 2003 Act also requires that the Secretary of State must consult before issuing guidance.
The Home Office has issued Guidance – Annex A: Draft Multi-Agency Statutory Guidance on Female Genital Mutilation (for consultation) (The Guidance for Consultation).
The Home Office has also issued a document called “Mandatory Reporting of Female Genital Mutilation – procedural information (Procedural Information Document). The Home Office has stated that they intend to publish updated guidance later this year (2015).
The Guidance for consultation
The Guidance for Consultation document does provide a comprehensive review of FGM. The “Aims” of the Guidance are stated as follows:
“This document provides advice to frontline professionals who have the responsibilities to safeguard and promote the welfare of children and protect and support adults from the abuses associated with FGM.”
The “Principles Supporting The Guidance” states:
“It is acknowledged that some FGM practising families do not see it as an act of abuse … but it is a crime that must never be excused, accepted or condoned”.
“… responding to FGM is not a matter that can be left to chance or personal choice – it is an extremely harmful practice. Professions should not let fears of being branded ‘racist’ or ‘discriminatory’ weaken the protection and support required by vulnerable girls and women. Nor should they avoid asking questions. This is a sensitive subject, but professionals should not be afraid of causing embarrassment …”
The Procedural information document
This document has been produced by the Home Office to guide and set out the responsibilities and duties of the Professionals in respect of the duty created under Section 5B of the 2003 Act. It is recommended that this consulted and read.
The consequences of failing to comply with this duty
Paragraph 4.1.1 of the Guidance for Consultation sets out the consequences of failing to comply with the duty, in that, it will be dealt with in accordance with existing disciplinary procedures in place for each profession. This may result in health or social care professionals being subject to fitness to practice proceedings. Employers and the professional regulators are expected to pay due regard to the seriousness of the breaches of duty.
The failure to observe and comply with the duty has serious consequences and it will be up to the professionals to familiarise themselves with FGM and in particular the nuances of Type IV FGM.
In the case of Leeds City Council v M, F, B, G (B and G by their children’s guardian Victoria Wilson) care proceedings were considered and the most important issue in the proceedings is whether G has been subjected to FGM. At paragraph 79 of the Judgment, Sir James Munby President of the Family Division stated:
“There is a dearth of medical experts in this area, particularly in relation to FGM in young children. Specific training and education is highly desirable. As Professor Creighton explained (Transcript pages 23, 27-28), there is an awareness of the problem and a need for more education and training of the medical professionals, including paediatricians.”
“Knowledge and understanding of the classification and categorisation of the various types of FGM is vital. The WHO classification is the one widely used. For forensic purposes, the WHO classification, as recommended by Professor Creighton (Transcript page 2), is the one that should be used.”
I would recommend that all professionals involved in the detection enforcement of the FGM legislation read the Leeds City case and especially paragraph 79. The views of Professor Creighton in the Leeds City case support my views expressed in paragraph 26 of this article.
Paragraph 4.1.2 of the Guidance for Consultation sets out what is considered to be “Good Practice”. It states:
“If you are worried about a girl under 18 who is either at risk of FGM or who you suspect may have had FGM, you should share this information with social care or the police, whichever is most appropriate?”
Cases that fall under the mandatory duty to report required in Section 5B of the 2004 Act must be referred to the police
It is interesting to note that it is considered “Good Practice” to report any suspected case. This is even more important where it is believed that FGM may be about to take place. However, there may be instances where the exact risk of this occurring is not known but a parent or other professional may be concerned enough to alert those who have the duty to report. It is important to be vigilant so that in appropriate circumstances a FGM Protection Order, Prohibitive Steps Order or Wardship Order can be used to prevent the child being removed from the country.
Those over 18 years old
Finally we should not forget those over the age of 18 years old. Whilst the provisions in Section 5B of the 2003 Act do not cover those over 18 year olds it is still important to have vigilance to protect this group. Section 6 of the 2003 Act defines “Girl” to include a “Woman” so the over 18 year olds are still protected by the criminal law and a FGM Protection Order.
The FGM Dataset - updated guidance
The Government has produced guidance to complement the mandatory requirements under Section 5B of the 2003 Act. Under the Health and Social Care Act 2012 General Practices and Mental Health Trusts have be mandated to record FGM patient data under the FGM Enhanced Dataset (FGMED). This was introduced from 1 October 2015. In respect of Acute Trusts this has been mandatory since the 1 July 2015. It should be noted that complying with the FGMED does not mean that a professional will have met their professional requirements as set out in the new mandatory reporting duty.
In an article written by the Guardian Newspaper a number of senior clinicians, including three involved in treating FGM survivors, have written a letter to the British Medical Journal warning that a requirement on them to record every female patient with FGM and to pass their data to the DH was counter-productive and would hinder strategies to eradicate the practice. They say that the planned data gathering, carried out without the explicit consent of patients, is “ill-considered”, ”not fit for purpose” and will bring “already compromised patient confidence close to breaking point”. The medics stress that they do not object to the requirement to report child cases of FGM to the police. However, they urge the DH to alter its policy requiring them to collect and pass on patient-identifiable data on adult patients with FGM, no matter the reason for going to the doctor. The DH say the information will be anonymised.
There has always been a dilemma on how best to act in the interests of the girl/woman who has or will be exposed to FGM. Dr Brenda Kelly of the Oxford Rose Clinic states:
“… that she sees 6 to 10 FGM survivors a month. Some of these women have taken 25 to 30 years to tell someone what has happened to them. If you break that safe space and say I’m duty bound to record this information and pass it to the DH, there’s a breach of trust”
I can sympathise with Dr Kelly but in my opinion there has to be some breakthrough in order to bring home to people that FGM will not be tolerated in the United Kingdom and elsewhere for that matter.
The French take a very robust approach to FGM and there have been over 100 people jailed in dozens of high profile cases in France. “Dr Emmanuelle Piet says tiptoeing around religious or social traditions has no place in the FGM debate. Linda Weil-Curiel is a lawyer who has been working to bring the cutters and parents to justice. So far there have been about 40 trials, an increasing number of which have ended in prison sentences”.  No one has been successfully prosecuted in the UK
The historical aspect to FGM
The justification for performing FGM appears to be a deeply rooted and ancient custom. In the African Journal of Urology  there is an interesting note on the history of FGM. It states:
“The practice of this custom in ancient Egypt was reported by Herodotus (500 B.C.) and Strabo, the Greek Geographer. Herodotus reported that female circumcision was practiced by the Phoenicians, Hittites, Ethiopians as well as Egyptians”
As historical and traditional as it may be I see no reason to continue with such a barbaric practice and the time is overdue to bring an end to this mutilation of young females.
International day of zero tolerance for FGM
On the 20 December 2012, the UN General Assembly adopted Resolution A/RES/67/146 in which it “calls upon States … to continue to observe 6 February as the International Day of Zero Tolerance for FGM and to use the day to enhance awareness – raising campaigns and take concrete action against female genital mutilations”.
The fear of FGM as grounds for seeking asylum
Although this article is not written to review the issue of asylum it well worth mentioning that where there is an application for asylum and women/children are involved then the issue of FGM should always be considered in appropriate cases. The asylum process examines whether an applicant has a well-founded fear of persecution based on one or more of the grounds in the 1951 Convention relating to the Status of Refugees or faces an actual risk of being subjected to serious harm.
An interesting case to read is AF and The Secretary of State for the Home Department [AA/07910/2012, AA/07911/2012, and AA/O7912/2012]. This is a decision of Deputy Upper Tribunal Judge Rimington on the 31 January 2014. This was a case where the mother was refused asylum but was granted leave to remain because of her two young daughters who would be granted Refugee Status. At paragraph 46 and 47 of the case it was concluded that:
“In view of the particular circumstances of this appellant including her cultural, social and tribal/regional background I find that her return to Sierra Leone would expose her daughters to the risk of FGM and further that her resistance would also subject her to discrimination which will encourage her to allow them to undergo FGM”.
“I accept that the claimed risk of FGM to the appellant’s daughter CCT engages the Refugee Convention as she is a member of a particular social group. The harm also constitutes as well as persecution, inhuman and degrading treatment and thus engages Article 3 on the grounds that although a non-state agent the government could not provide reasonable protection”
Article 8 of the European Convention on Human Rights was also engaged because it was not “reasonable to expect a child to live in another country” separated from her mother.
Therefore those involved in Immigration Cases must be alert to FGM issues in the country to which it is proposed to deport girls and also women. The issues surrounding FGM, Immigration and Asylum require discussion in a separate article.
Interesting reading and viewing
The Documentary Film JAHA’S DUKUREH’s Journey produced by INDIEGOGO. This is the story of a young girl in The Gambia who was taken from The Gambia to the USA and then returned to The Gambia to campaign against FGM. JAHA suffered FGM and her sister died as a result of FGM.
- The website of the Oxfordrights Workshop
- Forced Migration review – University of Oxford – Refugee Studies Centre
Roger Birch is a barrister at 5 St Andrew's Hill and practises in family and international family law, chancery and commercial and personal injury and professional negligence.
 The Guardian Friday 7 February 2014 – Dexter Dias, Felicity Gerry and Hilary Burrage - This article gives 10 reasons why FGM law has failed – and 10 ways to improve it.
 The Guardian Monday 10 February 2014 – Kim Willsher in Paris – The French approach to FGM
 The Guardian Thursday 12 November 2015 – Liz Ford – This article outlines the approach of the “Warriors”
 The Protocol to the African Charter on Human Rights and Peoples’ Rights on the Rights of Women in Africa
 We-news - Friday 13 November 2015 – womens enews.org
 Pan African Urological Surgeon’s Association – African Journal of Urology (2013) 19, 145-149
 The Department of Health – NHS England has produced Guidance - “Care, Protect, Prevent” FGM Mandatory reporting duty. This can be found on the website Gov.UK
  EWFC 3
 Health & Social Care Information Centre – Department of Health – FGM Prevention Programme – September 2015
 The Guardian Tuesday 20 October 2015 – Karen McVeigh – FGM; reporting of cases among children becomes mandatory
 See NOTE 2 at Paragraph 2 above
 African Journal of Urology 9 (2013) 19, 145-149 at 146