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FGM and the Serious Crime Act 2015

Nkumbe Ekaney QC of Albion Chambers and Charlotte Proudman of Mansfield Chambers consider the important provisions introduced to protect girls and women from FGM.

Nkumbe Ekaney QC
of Albion Chambers and Charlotte Proudman, barrister, of Mansfield Chambers

Female genital mutilation (FGM) now forms part of our political and public consciousness. The inadequacy of the legal response to the thousands of girls and women from the UK mutilated every year has finally become a major consideration of legal practitioners.

While the data on the incidence of FGM in the UK are limited, estimates by Equality Now and City University show that in England and Wales 103,000 women and girls aged 15-49 are living with the consequences of FGM and another 10,000 under the age of 15 have undergone FGM or are at risk of FGM . Although FGM was made a specific criminal offence in 1985, there have been no successful prosecutions.

The House of Commons Home Affairs Committee's report on FGM published on 25 June 2014 recommended a national action plan, which would involve "strengthening the law on FGM, principally to ensure the safeguarding of at-risk girls, but also to increase the likelihood of achieving successful prosecutions" (paragraph 22).

Five key legislative changes on FGM were introduced into the Serious Crime Act 2015, which was given royal assent on 3 March 2015. In this article we attempt to provide an overview of the legislative changes.

1. Offence of FGM: extra-territorial acts
The Female Genital Mutilation Act 2003 (2003 Act) was originally concerned with acts done by UK nationals or permanent UK residents to girls or women who are UK nationals or permanent UK residents. Perpetrators and victims who were habitually resident in the UK (but not UK nationals or permanent UK residents) were not covered by the legislation. The Bar Human Rights Committee of England and Wales (BHRC) noted in its report on FGM that "the UK's legal obligations extend to all children within its jurisdictions – therefore UK organisers of such mutilations should face prosecution, irrespective of the child's status" (page 3).

The Serious Crime Act amends sections 1 to 3 of the 2003 Act so that it applies to UK nationals and habitual residents rather than only to UK nationals and permanent UK residents. A UK resident is someone who is habitually resident in the UK.

The Act does not however address those who have a short and temporary stay in the UK. No provision is made, for instance, for the situation in which a woman travels to the UK for a short period, visits an NHS doctor who discovers that the woman has been subjected to FGM and intends that her daughter(s) should also be exposed to the procedure. 

2. Anonymity for victims of FGM
A new section 4A and Schedule 1 have been inserted into the 2003 Act and provide for injunctions prohibiting the publication of any matter that could lead the public to identify the alleged victim of an offence under the Act. The prohibition lasts for the lifetime of the alleged victim. The power to waive the restrictions is limited to the circumstances necessary to allow a court to ensure that a defendant receives a fair trial (Article 6 ECHR) or to safeguard freedom of expression (Article 10 ECHR). The rationale is that anonymisation will encourage women and girls to report FGM offences committed against them, and to increase the number of prosecutions.

3. Offence of failing to protect girl from risk of genital mutilation
A new Section 3A offence of failing to protect a girl under the age of 16 from risk of FGM is introduced into the 2003 Act. A person is liable for the offence if they are responsible for a girl at the time when an offence is committed against her and when FGM has actually occurred.

The term "responsible" covers two classes of person: first, a person who has 'parental responsibility' for the girl and has 'frequent contact' with her, and, second, any adult who has assumed responsibility for caring for the girl in the manner of a parent, for example, grandparents who might be caring for the girl during the school holidays.

There are two possible defences: the first is that the defendant did not think that there was a significant risk of the girl being subjected to FGM and could not reasonably have been expected to be aware that there was any such risk. The second defence is that the defendant took reasonable steps to protect the girl from being the victim of FGM. The defendant will have to adduce sufficient evidence for the matter to be considered by the jury; it would then be for the prosecution to demonstrate to the criminal standard of proof, namely beyond reasonable doubt, that the defence had not been made out. We envisage that this provision may lead to more difficult prosecutions given the wide parameters of the two defences. 

4. Female genital mutilation protection orders
Section 5A is inserted into the 2003 Act which introduces new Schedule 2 into the 2003 Act. The schedule  provides for FGM Protection Orders. The orders can be made to protect a girl against being subjected to FGM. An order can be made to protect either a girl or woman at risk of FGM. FGM protection orders are modelled on forced marriage protection orders introduced by the Forced Marriage (Civil Protection) Act 2007. The terms of such an order can be broad and flexible and enable the court to include whatever terms it considers necessary and appropriate to protect the girl. These include, for example, provisions requiring a person to surrender his or her passport. In addition, the BHRC supported the establishment of a central coordinating institution of an anti-FGM Unit equivalent to the Forced Marriage Unit in the Foreign and Commonwealth Office. While the coalition government pledged to introduce an anti-FGM Unit last year, no unit exists yet.

[The first FGM protection order was obtained by Bedfordshire Police on the 17th July. Click here for details.]

5. Section 74: Duty to notify police of FGM
A new section 5B of the 2003 Act (when the section is implemented) places a duty on persons who work in a 'regulated profession' in England and Wales, namely healthcare professionals, teachers and social care workers, to notify the police when, in the course of their work, they discover that an act of FGM appears to have been carried out on a girl who is under 18. The term 'discover' would refer to circumstances where the victim discloses to the professional that she has been subject to FGM, or where the professional observes the physical signs of FGM. The section does not apply to girls or women who might be at risk of FGM or cases where professionals discover a woman who is 18 or over has endured FGM.

We believe that this provision is deficient in a number of respects. First, there appears to be a contradiction in legislation in that FGM is a criminal offence according to the 2003 Act for adults and minors and consent is not a defence, and yet, professionals do not have to report adults who have had FGM. Second, vulnerable 18-year-old women who could be at risk of FGM, or indeed sisters who could be at risk of FGM, might not receive appropriate support because professionals have no duty to report cases involving adult women to the police. Third, we suggest that if there was a duty to notify police of FGM even when the woman is an adult, this could lead to a conviction of 'failing to protect a girl from risk of FGM'. For example, a healthcare professional discovers that a woman of 18 years or more who was born in the UK has been subjected to FGM, her parents could be guilty of an offence of failing to protect her from FGM; however, according to the new section 5B offence, the healthcare professional has no duty to report the offence, thus no prosecution is likely to ensue. Finally, the deficiency of this offence reflects the failure of the state's responsibility and commitment to preventing and protecting adult women from violence. Indeed, the BHRC's report on FGM found that "the UK has been in breach of its international law obligations to protect young women and girls from mutilation" (page 1). 

Further recommendations and legislative changes were identified in the House of Commons Home Affairs Committee's report and the BHRC's report: for example, the need to examine whether section 1(2)(a) of the 2003 Act provides a loophole for FGM to be performed under the guise of female genital cosmetic surgery on the basis that the surgery is 'necessary for physical or mental health' reasons, and the introduction of a legal requirement for mandatory training and reporting for frontline professionals in regulated professions. Without a successful prosecution in the next few years, further legislative changes may well be on the political agenda.

Nkumbe Ekaney
represented the father in B and G (Children) (No 2) [2015] EWFC 3, in which the court had to consider within care proceedings whether a gilr had been subjected to FGM and, if so, what the implications should be for her and her sibling's future.

Charlotte Proudman was a member of the Bar Human Rights Committee's working group on FGM.