FGM, Protective Orders and the Family Court 29 th October 2015

1. FGM, Protective Orders and the Family Court29th October 2015 Nkumbe Ekaney QC Albion Chambers, Bristol My gratitude to HHJ Wildblood QC for his contribution to this paper

2. Summary • What is FGM? • Statistics • The Criminal Law • In the matter of B & G (Children) (2) 2015 EWFC 3 • Implications; sec 31 CA 1989, welfare and proportionality • FGMPOs

3. What is FGM? • FGM encompasses all procedures that deliberately change or alter or cause injury to the female genital organs for no medical reason. There are no health benefits to the practice. It can result in severe or serious bleeding, infection, infertility and in some cases complications in child birth and problems urinating. • FGM is generally carried out on girls between birth and the age of 15.

4. Statistics • WHO figures suggest that more than 125 million girls and women have been subjected to the practice in about 29 countries in the Middle East and Africa. • In this country the Health and Social Care Information Centre says that on average 463 FGM cases are reported monthly by English hospitals so that is about 15 cases per day. There are no figures for Scotland and Wales.

5. In 2014 a study carried out by Quality Now and City University estimated that about 103,000 women between the ages of 15 and 49 who were immigrants to England and Wales were living with the consequences of FGM. • Another approximately 10,000 females under the age of 10 had either undergone FGM or were believed to be at risk of undergoing FGM.

6. In June 2013 the NSPCC launched an FGM helpline that is believed to have received more than 500 calls so far. • John Cameron, head of NSPCC said “....these new figures indicate that FGM is a bigger problem in the UK than we thought and there are obviously children at risk of being subjected to this cruel and unnecessary practice right now.”

7. The Criminal Law • The Prohibition of the Female Circumcision Act 1985 is the precursor to the Female Genital Mutilation Act 2003. • (1) A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girls labia majority (labia minora or clitoris). • [Mutilates – damage or maim or depriving of a limb or essential part.]

8. The enactment of the Female Genital Mutilation Act 2003 / FGMA reinforced the UK Criminal Law making it an offence for UK Nationals or permanent residents to carry out FGM abroad, or to aid, abet, counsel or procure the carrying out of FGM abroad, even in countries where the practice was legal. The maximum penalty for such an offence was increased from 5 to 14 years.

9. Key legislative changes on FGM were introduced by section 73 of the Serious Crime Act 2015 which inserts section 5A and Schedule 2 of the FGMA 2003. • Offence of FGM: extra-territorial acts • Anonymity of victims of FGM. • Offence of failing to protect a girl from the risk of FGM • FGM Protection Orders. • Duty to notify the Police of FGM.

10. WHO Classification • The World Health Organisation in a statement emanating from the WHO Fact Sheet N241 (Female Genital Mutilation) Published in February 2014 classifies FGM as follows: –

11. FGM Type I • TYPE I – Clitoridectomy involving the partial or total removal of the clitoris (small, sensitive and erectile part of the female genitals and in some cases partial or total removal of the prepuce (the fold of skin surrounding the clitoris). • IA involves removal of the clitoral hood or prepuce only and 1B refers to the removal of the clitoris with the prepuce.

12. FGM Type II • TYPE II – excision – partial or total removal of the clitoris and the labia minora with or without excision of the labia majora (the labia are the lips that surround the vagina). • IIA involves the removal of the labia minora only, IIB the partial or total removal of the clitoris and the labia minora, IIC the partial or total removal of the clitoris, labia minora and the labia majora.

13. FGM Type III • Infibrilation – the marrying of the vaginal opening through the creation of a covering seal by cutting and repositioning the labia minora and/or labia majora with or without excision of the clitoris. • IIIA involves the removal and positioning of the labia minora and IIIB involves the removal and repositioning of the labia majora.

14. FGM Type IV • This is unclassified and involves all other harmful procedures to the female genitalia for non-medical purposes including pricking, piercing, incising, scraping, and cortorising the genital area.

15. Comments • Type III most radical or invasive • Type I,II&III invasive [without anaesthetic] • Typically untrained people with the resultant risks of serious bleeding and or infections. • Type IV nicking or cut, less invasive and may attract less attention of the authorities

16. Rationale for FGM • Status and respect for the girl and family • Culture, religion and tradition • Rite of passage • Cleanliness and purity • Attractiveness, chastity and marriage • Rid of ill fortune or evil spirits • All of the above are unacceptable as rationale.

17. Consideration of some of the issues raised in B v G (Children) (No2) 2015 EWFC 3 • Whether FGM was proved in this case? And if so, what type? • Whether if FGM was established, did it amount to significant harm under Section 31 of the Children Act 1989. • What were the implications of the decision?

18. In the Matter of B & G (Children) (2) 2015 EWFC 3 Brief facts – • Care proceedings involving two young children - a boy aged 4 and a girl aged 3. The parents are from an African country. • The proceedings were precipitated by the mother abandoning the girl in an alleyway in the centre of a northern town. The mother had a diagnosis of a schizoaffective disorder

19. The children were placed in foster care and the foster mother expressed concerns about the unusual appearance of the girl’s genitalia. At the local authority’s instigation, the child was subjected an intimate examination by a local respected paediatrician experienced in the investigation of sexual abuse. A second joint examination was undertaken by the paediatrician and a court appointed an expert- a midwife, experienced in the treatment and management of women victims of FGM.

20. The local authority case was that the child had been subjected to Type IV FGM and as such she had suffered significant harm. • In support of their assertion that the threshold criteria were made out, the authority alleged that the children had been neglected and been exposed to the mother’s serious mental health problems and to parental disharmony and abuse.

21. The significance of FGM. In paragraph 78 of B & G Munby P says this... • “Local authorities need to be pro-active and vigilant in taking appropriate protective measures to prevent girls being subjected to FGM and, as I have already said, the court must not hesitate to use every weapon in it’s protective arsenal if faced with a case of actual anticipated FGM. An important tool which lies readily to hand for use by Local authorities is that provided by section 1 of the 1989 Act. The inherent jurisdiction as well as all the other jurisdictions of the High Court and the Family Court must be as vigorously modernised in the prevention of FGM as they have hitherto in relation to forced marriage.

22. Given what we now know is the distressingly great prevalence of FGM in this country, even today, some 30 years after FGM was first criminalised, it is sobering to reflect that this is not merely the first care case where FGM has featured but also, if not the first one of only a handful of FGM cases that have yet found their way to the Family Court. The courts alone, whether the family courts or the criminal courts, cannot eradicate this great evil, they have an important role to play and a very much pivotal role than they have hitherto been able to play.”

23. The Experts – Dr Alison Share • The President caused transcripts of the expert evidence to be prepared. • Dr Share, Consultant Paediatrician examined the child. The examination was recorded on DVD using video colposcope. She concluded that there was evidence that part of the child’s clitoris and clitoral hood had been removed with scarring present to her clitoral area. It was appropriate that a second opinion be sought, but in her opinion the child had been the victim of Female Genital Mutilation Type I and possibly Type II.

24. Dr Share and the now court appointed court expert, Comfort Momoh, Specialist Midwife carried out a joint intimate examination of the child. This was also recorded on DVD using a video colposcope. The two experts had discussed Dr Share’s earlier findings, significantly her finding of scarring.

25. The notes of the joint examination [regarding the clitoris] were to the effect that the “hood of clitoris (clitoris not visible)” “right labia minora (appears missing)” . The midwife’s conclusion was that the child had been subjected to some form of FGM as the “...vulva does not appear normal..” • The paediatrician’s report of the same examination was that the “clitoris appears to be deficient with the possibility of scarring on the left side”. The agreed opinion was that the child was a victim of FGM.

26. The Experts – Dr Share • Dr Share is an experienced and highly regarded consultant Community Paediatrician but did not put herself forward as having particular expertise in FGM. • She candidly admitted that her initial findings were wrong and that she changed her mind even after the second examination. • The President found that she was an entirely honest, open and frank witness.

27. The Experts – Dr Share • Critical question is how reliable witness she was in terms of what she thought she had seen when she was examining G (see paragraph 44 of B & G). • Unable to give a clear – accurate or consistent account of what it is that she thought she was seeing when she was examining G. • It was quite impossible to rely on Dr Share’s evidence as establishing local authority’s case.

28. The Experts – Dr Comfort Momoh • Midwife and FGM, Reproductive and Public Health Specialist (see paragraph 18 of B & G). • Dr Momoh merited all the harsh criticism expressed by Mr M and Mr E. Whatever her expertise in relation to FGM in pregnant women, in relation to young children, it was extremely limited. • Her report and oral evidence were well below the standard required for an expert witness. She was not a reliable witness. Her oral evidence was exceedingly unsatisfactory (see paragraph 45 of B & G).

29. The Experts – Professor Sarah Crieghton • Instructed following a Part 25A application by the father’s team. • She is a Consultant Gynaecologist with a major interest in paediatric and adolescent gynaecology, reconstructive genital surgery and female genital mutilation. See paragraph 19 of B & G. • Professor Crieghton concluded that G’s clitoris, labia minora, labia majora and vagina are within normal limits. This was on an examination of the DVDs and not an intimate examination.

30. The Experts – Professor Sarah Crieghton • There was no evidence of removal of any genital tissue. • There was no evidence of WHO FGM types I,II or III. • She was unable [from the DVDs] to confirm the scar to the left lateral aspect of the child’s clitoris as described by the two other experts. • A scar of this nature, if present could be consistent with type IV FGM.

31. The Experts • An experts’ meeting took place and it is plain that Professor Crieghton with her vast experience of FGM carried the day. • The President remarked that she was the only one of the three with real experience of FGM in the paediatric context. Her evidence, both written and oral was clear and measured; it did not change; it was delivered with authority; it carried conviction.

32. The decision was that the court was not persuaded of the presence of a scar which was now the only feature relied upon by the local authority in support of the allegation of FGM (paragraph 51). • There was no evidential basis for finding that the child was at risk of being subjected to FGM in the future. Professor Crieghton discounted as a matter of principle the risk of the child being subjected to further FGM in the future.

33. Limited expertise • There is a limited number or dearth of experts in this field. • One specialist paediatric FGM clinic in the UK (Professor Sarah Crieghton’s).

34. Lessons to be learned • See paragraph 79 of B & G. Whoever is conducting the examination, it is vital that clear and detailed notes are made, recording (with the use of appropriate drawings or diagrams) exactly what is observed. • If an opinion is expressed in relation to FGM it is vital that (a) the opinion is expressed by reference to the precise type of FGM that has been diagnosed which must be identified clearly and precisely and (b) that the diagnosis is explained, clearly and precisely by reference is recorded as having been observed.

35. FGM Threshold and Proportionality • Munby P enquired at the outset of the case whether type IV FGM, the type which was alleged the child had suffered in this case, satisfied the threshold criteria. And, if proved, was adoption proportionate if that was the sole threshold finding.

36. In order to fully understand B & G it is important to reiterate that the harm alleged to have been suffered by the child was type IV FGM, that is a cut or nick causing a small scar to the left of the child’s clitoris. More radical and/or invasive FGM was not alleged.

37. Munby P said “I do not want there to be any doubt, FGM is a criminal offence under the Female Genital Mutilation Act 2003. It is an abuse of human rights. It has no basis in any religion”. • The President described it as “barbarous” and a practice which is beyond “the pale”.

38. It was however said that there was a particular issue in relation to FGM Type IV which “cannot be shirked”. • The academic debate about the objections for FGM apply to male circumcision. In other words, how does one justify the law’s prohibition on FGM in all forms with the law’s toleration of male circumcision? • How do you rationalise it using Section 31 of the Children Act?

39. Section 31 Threshold • Circumcision of a male involves the removal of some or all of the foreskin. • It can be less invasive as FGM types I, II and III. • But more invasive than some forms of FGM type IV.

40. Justifications for male circumcision • Religious, medical and/or cultural. • Often due to custom/or for conventional reasons. • I do not advance any personal views on this.

41. Is FGM significant harm? • Overwhelmingly yes. See paragraph 67 and 68 of the judgement in B & G. • FGM cannot be said to be trivial or unimportant when considering harm in the test set out by Lady Hale in Re B (Care Proceedings: Appeal) [2013] UK SC 33 at paragraph 185. • The two limbs of section 31; what is significant harm and what is reasonable? • Given the objection of society to FGM, it cannot be said to be reasonable as male circumcision is.

42. Consequences if Section 31 not crossed • Legitimisation of an Act that is illegal and in breach of Human Rights. • The clear conflict with criminal law and bringing the law into disrepute. • Inconsistency with other forms of harm e.g. digital penetration of a child which leaves no injuries but yet harmful. • The courts being powerless to intervene to protect children.

43. Is FGM lack of reasonable parental care? In the affirmative • Male circumcision in the negative. • Society and the law, including the family law, are prepared to tolerate non-therapeutic circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms, there are, after all, at least two important distinctions between the two.

44. Is FGM lack of reasonable parental care? In the affirmative • FGM has no basis in any religion. Male circumcision is often performed for religious reasons. • FGM has no medical justification and confers no health benefits. Male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision (paragraph 72 B & G).

45. Proportionality/Welfare • No generalisations possible. • Will depend on the type of FGM in question and other threshold findings in the case.

46. Complex issue because once FGM inflicted the evidence given by Professor Crieghton that it is unlikely to be repeated (save for the risk to other female siblings). • The girl and boy distinction; the threshold may be crossed for the girl but not for the boy so how is the welfare analysis to be undertaken and the balance be struck?

47. Local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption (paragraph 77). • Culture not a defence. • Everything should be done to prevent it. • Support those at risk of the practice and safeguard them. • Support survivors in coping with the consequences of FGM

48. Risk Factors • Community or origin • Level of integration into UK society and culture • Mother/sisters having undergone FGM • Withdrawal from social, health and education including learning about the practice.

49. FGM Protection orders /FGMPO • They are orders made for the purposes of: • Protecting a girl from the commission of a genital mutilation offence. • Protecting a girl against whom any such offence has been committed. [para 1(1) of Schedule 2 of the FGMA 2003]. • They are additional to any existing statutory remedies – para 16.

50. FGM offences – max 14 years on indictment • Section 1 – A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris [with exceptions for necessary medical intervention.