United Nations International Day of Zero Tolerance for Female Genital Mutilation

Today, 6 February 2019, is the annual United Nations International Day of Zero Tolerance for Female Genital Mutilation (FGM).

FGM is a degrading and discriminatory practice with particularly harmful consequences for children. Lucy Bennett, legal assistant at Miles & Partners in the City of London looks at how FGM is currently tackled in the family courts.

‘The International Day of Zero Tolerance is incredibly important in improving global understandings of FGM as a form of abuse against women and children. Increasing public awareness of the ability of family courts to provide protection in this area is also vital to reducing the risk that girls living within the UK are exposed to FGM and home or abroad,’ says Lucy.

Prevalence of FGM

Globally, it is estimated that at least 200 million women and girls have been subjected to FGM. Despite a prevalence within certain countries, around 137,000 females in the UK are thought to have undergone the procedure with a further 60,000 still at risk.

There are many types of FGM and the World Health Organisation classifications provide a useful guide. What is clear is that in all its forms it is extremely harmful to women and can have a disastrous short-term and long-term impact on a woman’s physical, mental and emotional health.  Medical complications can arise during or after the procedure (for example during child birth) including extreme pain, risk of infection, haemorrhaging and even death. Furthermore, many women can go on to suffer from post-traumatic stress disorder or other psychological difficulties as a result of their trauma.

Although the age at which a woman is ‘cut’ varies within and between communities, the majority of FGM victims are children. The motivations for FGM within practising groups are complicated and support for the practice is culturally embedded, making the practice difficult to eradicate.

Current legal protection

Under the Female Genital Mutilation Act 2003, it is a criminal offence to:

• perform FGM;
• to assist a woman to undergo FGM (within the UK or abroad); or
• to fail to protect a child under 16 from undergoing FGM.

However, the practical impact of the law has been limited, with the first ever conviction announced just last week after a mother was found guilty of causing the FGM of her daughter. She will be sentenced on 8th March 2019.

As the practice of FGM is usually sanctioned and sometimes conducted by family members, the avenues of family law can offer an alternative method for reducing the harm caused as a result of FGM. In contrast to criminal law, the focus is on protection of the victim rather than punishment of the perpetrator who will often be a relative. The guiding family law principle that the child’s welfare is paramount is a useful tool for dealing with what is an incredibly complex issue.

There are two primary mechanisms through which the family court can provide protection for victims:

(1)  Care proceedings

One way in which FGM appears within the family court is within care proceedings initiated by a local authority on the basis that a child has suffered, or is at risk of suffering, harm in the form of FGM.

In 2015. Sir James Munby, who was then president of the family division, gave guidance on the particular difficulties that arise in cases of this nature in Re B and G (Children). As well as demonstrating a concerning lack of expert knowledge in this area, this case revealed the problems associated with assessing the best outcomes for children where FGM has already occurred but there are no further concerns that a child will suffer harm within the family.

A real problem for practitioners in this area is that parents may have genuinely well-intentioned but hugely misguided motivations for wanting children to undergo the process. Sir Munby used the case to remind practitioners of the need for a thorough welfare analysis in all circumstances and warned local authorities against jumping to the conclusion of adoption where FGM has occurred within a family.

(2)  FGM Protection Orders

FGM protection orders provide a useful mechanism for the prevention of FGM against women and girls and can be used by both family and criminal courts even where FGM has already occurred.

The court has wide powers in making such orders. Within family proceedings, courts may make such orders on the application of the individual to be protected or relevant third parties (including local authorities). In making an order the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected. The test is therefore distinct from and of a lower standard than threshold required in care proceedings.

Commonly, orders will be framed against parents and will prevent the removal of the child concerned from the jurisdiction. However, orders can also be made against any person who may become involved in the ‘aiding, abetting, counselling, procuring, encouraging or assisting’ of FGM even if they are not part of the original proceedings.

This week, a second reading took place in the House of Commons on a bill which seeks to add provision to the Children Act 1989 to enable interim care orders to be made within FGM protection order proceedings, increasing fluidity between the protective mechanisms and giving the courts further powers to protect children at risk of FGM.

The law in this area is still developing and Miles & Partners solicitors are dealing with cases at the forefront of these changes. Our solicitors have experience representing parents and children through guardians in care proceedings involving allegations of FGM as well as protection orders and their wider public law expertise is invaluable within these cases.

For more information about FGM and the United Nations International Day of Zero Tolerance, please click here.

For more information on FGM protection orders or any other aspect of family law, please contact Kate Hammond at kh@milesandpartners.com. Alternatively, you can call our offices on 020 7426 0400.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.