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Female Genital Mutilation - How are the Courts protecting children?

View profile for Lauren Kelly
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The horrifying crime of Female Genital Mutilation (or “FGM”) has been back in the spotlight recently. A channel 4 documentary, “The FGM Detectives”, has been following the work of a Bristol based detective chief inspector and her specialist team in identifying and protecting young girls thought to be at risk from the secretive practice. In recent years, understanding of FGM has increased, as the media has helped in bringing the term into the mainstream. However, what the documentary has proven once again is that FGM is incredibly difficult to protect against – shockingly there has never been a successful criminal prosecution for the offence. What seems to make FGM so insidious and difficult to trace is that it is often the victim’s families who are arranging and facilitating the process. These arrangements are shrouded in secrecy and the victims are often young and vulnerable so less likely to inform the authorities. Government statistics show that 95% of FGM victims underwent the procedure before the age of 18, although it is known that FGM has been performed on girls of all ages, including on new born babies.

Conversations are now being had about the dangers and unique problems caused by FGM and the law is slowly catching up in trying to tackle the problem. Since 17 July 2015, the Family Courts have been granted the power to make FGM Protection Orders (“FGMPOs”) where there is evidence that a girl is at risk of undergoing (or has undergone) an FGM procedure either within, or outside, England and Wales. The Court has wide powers and a great deal of discretion in ensuring that the order will protect the suspected victim. This can range from prohibiting the potential victim from being removed from the country by parents, or other third parties, to preventing parents/third parties contacting the potential victims or being within a certain vicinity of them.

The legal basis for the application of FGMPOs has been drafted in a flexible way; allowing for the girls themselves, or third parties, to apply for the orders on their behalf. FGMPOs can be made “without notice” on an urgent basis if the case demands. This means that, as an emergency interim measure, an FGMPO can be put in place without the Respondent attending a hearing. If an FGMPO is made on this basis, the Court will list a further hearing in which it will hear the evidence from the Respondent and will decide whether the FGMPO will be lifted or whether it will remain in place.

When considering the risk to potential victims, and therefore whether an FGMPO is needed, the Court may want to consider evidence from experts on the culture of the suspected parent/third party. For example, in a recent 2017 case known as Re Z (A Child), the Court required evidence from an expert witness on Guinean culture – the respondent father being from the Fulah community in Guinea. The Court heard that the vast majority of men and women of all age groups in Guinea support the practice of FGM and that this would mean the child (known as “Z”) would have little protection if she visited the country of her father’s birth. As a result, the Judge made an FGMPO that would remain in force until Z turned 17 years old. The order also provided that when Z had contact with her father, the father must relinquish his passport – this measure being designed to mitigate the risk of Z being taken to Guinea for the purposes of FGM.

Since July 2015, there have been 79 FGMPOs made. However, in 2015 and 2016 alone, over one hundred girls were identified as having FGM, or were having treatment for their FGM injuries. It is therefore likely that the actual number of girls at risk of this practice is far higher than is reflected by Court statistics. Hopefully, awareness will continue to be raised on the subject and this will encourage more families to come forward with their concerns. Documentaries, such as “The FGM Detectives” and the critically acclaimed 2013 documentary produced by Leyla Hussain for Channel 4 entitled “The Cruel Cut” will hopefully continue to reaffirm the view that FGM is child abuse and a criminal offence, rather than a cultural practice which the families of young girls can opt in or out of. The Criminal and Family courts are now better equipped at tackling the problem but, for the law to work, the offence needs to be reported, evidence needs to be gathered and those with information need to come forward. It is therefore society, as well as the law, that needs to recognise the risks and act to safeguard these vulnerable girls.

If you would like any further advice regarding this, or any other, family law issue please contact a member of our specialist Family Law Team.

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