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Female Genital Mutilation: Protection v Punishment

In anticipation of the Commons Home Affairs Select Committee's report into FGM, Melanie Hepworth, Solicitor at Covent Garden Family Law, calls for greater awareness of the violence threatened to thousands of girls in the UK.

Melanie Hepworth, solicitor, Covent Garden Family Law

Melanie Hepworth, Solicitor, Covent Garden Family Law

A short while ago I attended an event for the"1 billion rising for justice" campaign  which demands an end to violence against women.   Present at the event was a brave survivor of female genital mutilation ('FGM') who gave a speech about what it was like to overcome the physical and mental scars of such an experience.   Despite the obvious pain and anguish this caused her it was the fear and concern she had for her children and future generations that compelled her to speak out. Her courage was palpable and it made me as a family lawyer think what I and my profession can do.

FGM has received a degree of attention in the press and Parliament recently, and the government has pledged a commitment to eradicating the procedure in the UK.  Meanwhile, the Commons Home Affairs Select Committee is expected to publish its report on female genital mutilation in late June or early July. In its evidence to the committee the Bar Human Rights Committee (BHRC) has advised that existing measures are clearly insufficient and that the UK is in breach of its international legal obligations in failing to protect vulnerable girls. It is hoped that the eventual report will prove to be a catalyst for government action against this practice. It should certainly  help to raise awareness within the public domain and to re-emphasise that being involved in such a practice is a criminal offence and will be punished with the full severity of the law, but is there a role for the family court and should we be doing more?

FGM is described by the World Health Organization as:

"All procedures that involve partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons."

In reality this often means the removal of the clitoris with a knife or razor (often without anesthetic) or having the genitalia sewn closed; see Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change (Unicef). The procedure holds no health benefits for the child/woman and is usually performed between birth and 15 years of age (see WHO Fact Sheet No 241), although according to UNICEF in half the countries half the girls were cut before the age of five (see Female Genital Mutilation /Cutting: A statistical overview and exploration of the dynamics of change, page 3).

FGM is practised in 29 countries in Sub-Saharan and North East Africa and to a lesser extent in Asia, the Middle East and within immigrant communities across the world.  In some countries (e.g. Egypt, Ethiopia, Somalia and Sudan), prevalence rates can be as high as 98 per cent. Often the procedure is carried out by an elder woman within the community and often by those who have no medical training.

In 2001 a study based on 2001 census data in England and Wales estimated that 23,000 girls under the age of 15 could be at risk of FGM each year; and nearly 66,000 women are living with its consequences.  However these figures are likely to have increased when taking into account population growth and the increase in immigration from practising countries.

The roots of FGM are numerous and it has not been possible to determine when or where the tradition originated.  Some of the reasons suggested have been custom and tradition; religion; preservation of virginity/chastity; enhancing fertility; hygiene and cleanliness; increasing sexual pleasure for the male; family honour; a sense of belonging to the group and conversely the fear of social exclusion.   It is considered a social norm by the cultures that practise it (Female Genital Mutilation/Cutting. A statistical overview and exploration of the dynamics of change, page 23).

In England and Wales legislation was introduced in 1985 banning FGM and making it a criminal offence, the law being updated in 2003 increasing the prison sentence from five to 14 years. It was however only on the 21 March 2014 that the Crown Prosecution Service (CPS) announced its first prosecutions against a doctor and one other individual for FGM almost 30 years from when the legislation was introduced.

When dealing with an issue that is considered a cultural norm by the communities that practise it, where it is believed to be an expression of a woman's identity, almost a rite of passage and therefore a reflection of her status within her community, it is clear to see why this is no easy matter to tackle. Those undergoing the procedure are often too young or too vulnerable to be able to speak out for themselves and if they do they are often too powerless to prevent what will happen to them. The only solution therefore must be to turn to the family, the parents, older siblings, aunts, uncles, family friends, medical professionals, elders within the community and teachers, who need to speak up and take action to protect those who are unable to speak for themselves.

Whilst some may argue that it is essential this barbaric practice remains a criminal offence, not only to act as a deterrent but to send a very clear message to all that this practice will not be tolerated, the fact that it has taken almost 30 years and immense political pressure for the CPS to announce its first prosecution shows that the current system has its difficulties.

The power and benefit of using the civil law to help protect girls in this situation in my opinion cannot be overestimated. Surely it is vital to try and prevent the procedure taking place in the first place, rather than the emphasis being on punishing those who carry it out. Reporting a proposed procedure to the police brings with it the risk that a loved one could be sent to prison  (with the impact this may have on other family members/siblings). If there is an option for families to take action which results in protection rather than punishment it may encourage and assist them in coming forward.   

Whilst no civil injunction currently exists that specifically deals with FGM it is hoped that this will be the subject of parliamentary debate and steps will be taken for this to be rectified in the future. In the meantime, however, it is still possible to use the court's inherent jurisdiction to ward a child if it is believed she is at risk of such a procedure and obtain injunctions to prevent the procedure from taking place (s 1(2) of and Schedule 1 to the Administration of Justice Act 1970  and PD 12D 1.1-1.3 (Inherent jurisdiction and (Wardship) proceedings).   Legal aid remains available on a means and merits basis for applications under the inherent jurisdiction in relation to children  (Legal Aid, Sentencing and Punishment of Offenders Act 2012 Schedule 1 Part 1, 9(1)) and because often these procedures will take place abroad, it is also available if there is a risk of the unlawful removal of a child from England and Wales (Legal Aid, Sentencing and Punishment of Offenders Act 2012 Schedule 1 Part 1, 10).  This is an important avenue open to families and one that needs to be highlighted so that people are aware of the options available to them.

The damage and devastation such a practice leaves on a child both emotionally and physically cannot be underestimated. It is clear that the family court which proudly protects and champions a child's welfare as its paramount consideration has an important and vital role in protecting them from such a violent act.