An overview of the practice of FGM and relevant UK Law.

1. Introduction – What is ‘FGM?’

The starting point for FGM is understanding what it is, who is at risk, and the harm that it can cause.

Female genital mutilation is a procedure where the female genitals are deliberately cut, injured, or changed, without any medical reason for the same to be done.

The definition of FGM as provided for by the World Health Organisation is as follows:

“All procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons.”[1]

It is also known as female circumcision or cutting, and by other terms, such as sunna, gudniin, halalays, tahur, megrez and khitan, among others.

The practice of FGM is classified in to 4 major types[2]:

Type I – Clitoridectomy

Partial or total removal of the clitoral glans (the external and visible part of the clitoris, which is a sensitive part of the female genitals, with the function of providing sexual pleasure to the woman), and/or the prepuce/clitoral hood (the fold of skin surrounding the clitoral glans). When it is important to distinguish between the major variations of Type I FGM, the following subdivisions are used:

• • Type Ia. Removal of the prepuce/clitoral hood only.
  • Type Ib. Removal of the clitoral glans with the prepuce/clitoral hood.

Type II – Excision

Partial or total removal of the clitoral glans and the labia minora (the inner folds of the vulva), with or without removal of the labia majora (the outer folds of skin of the vulva). When it is important to distinguish between the major variations of Type 2 FGM, the following subdivisions are used:

• • Type IIa. Removal of the labia minora only.
  • Type IIb. Partial or total removal of the clitoral glans and the labia minora (prepuce/clitoral hood may be affected).
  • Type IIc. Partial or total removal of the clitoral glans, the labia minora and the labia majora (prepuce/clitoral hood may be affected).

Type III – Infibulation

Narrowing of the vaginal opening with the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora, or labia majora. The covering of the vaginal opening is done with or without removal of the clitoral prepuce/clitoral hood and glans (Type I FGM). When it is important to distinguish between variations of Type III FGM, the following subdivisions are used:

• • Type IIIa. Removal and repositioning of the labia minora.

Type IV – Other

All other harmful procedures to the female genitalia for non-medical purposes, for example pricking, piercing, incising, scraping and cauterisation (burning).

FGM is usually carried out on young girls between infancy and the age of 15, most commonly before puberty starts. All types of FGM are harmful, there is no less significant or harmful ‘type’ of FGM, despite the 4 methods of practice being classified.

FGM is often performed by traditional circumcisers or cutters who do not have any medical training. In some countries, it may be done by a medical professional. Anaesthetics and antiseptics are not generally used. FGM is often carried out using knives, scissors, scalpels, pieces of glass or razor blades.

FGM will often happen against a girl’s will without her consent, and girls may have to be forcibly restrained.

The practice of FGM is mainly concentrated in the Western, Eastern, and North-Eastern regions of Africa, in some countries in the Middle East and Asia, as well as among migrants from those areas. FGM is a global concern.

FGM usually happens to girls whose mothers, grandmothers or extended female family members have had FGM themselves, or if their father comes from a community where it’s carried out.

Girls are sometimes taken abroad for FGM, but they may not be aware this is the reason for their travel. Girls are more at risk of FGM being carried out during the summer holidays, as this allows more time for them to “heal” before they return to school.

Communities at particular risk of FGM in the UK originate from[3]:

• Egypt
• Eritrea
• Ethiopia
• Gambia
• Guinea
• Indonesia
• Ivory Coast
• Kenya
• Liberia
• Malaysia
• Mali
• Nigeria
• Sierra Leone
• Somalia
• Sudan
• Yemen

It is important to understand how and why the practice is supported in some parts of the world. Many affected communities believe that FGM is a necessary custom to ensure that a girl is accepted within the community and eligible for marriage. Families who practice FGM on girls usually see it as a way of safeguarding their future. Families often consider the following to be benefits of the practice[4]:

• Perceived health benefits
• Preservation of the girl’s virginity
• Cleanliness
• Rite of passage into womanhood
• Status in the community
• Protection of family honour
• Religious justification: although for the avoidance of doubt there are no religions that advocate for the practice of FGM.

There are no health benefits associated with FGM, the health consequences associated with the practice are short and long-term to include the following[5]:

• Death
• Severe pain and shock
• Broken limbs from being held down
• Injury to adjacent tissues
• Urine retention
• Increased risk of HIV and AIDS
• Uterus, vaginal and pelvic infections
• Cysts and neuromas
• Increased risk of fistula
• Complications in childbirth
• Depression and post-natal depression
• Psychosexual problems
• Pregnancy and childbirth
• Sexual dysfunction
• Difficulties in menstruation
• Trauma and flashbacks
• Infertility

2. The Law on FGM in the UK

It is well established in UK law that the practice of FGM is “an abuse of human rights” (Re B and G (Children)(No 2) [2015] 1 FLR 905 at [55]); it is well-recognised that FGM violates Article 3 of the ECHR, which serves to protect persons from “torture or … inhuman or degrading treatment or punishment”.  As Baroness Hale observed in Fornah v Secretary of State for the Home Department [2006] UKHL 46; [2007] 1 AC 412, at [94]:

“… the procedure will almost inevitably amount either to torture or to other cruel, inhuman or degrading treatment within the meaning, not only of article 3 of the European Convention on Human Rights, but also of article 1 or 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, article 7 of the International Covenant on Civil and Political Rights, and article 37(a) of the Convention on the Rights of the Child”.

Lord Bingham in the same case said this at [8]:

“FGM has been condemned as cruel, discriminatory and degrading by a long series of international instruments, declarations, resolutions, pronouncements and recommendations. … Therefore those cultural practices that involve “severe pain and suffering” for the woman or the girl child, those that do not respect the physical integrity of the female body, must receive maximum international scrutiny and agitation. It is imperative that practices such as female genital mutilation, honour killings, Sati or any other form of cultural practice that brutalizes the female body receive international attention, and international leverage should be used to ensure that these practices are curtailed and eliminated as quickly as possible”.

When confronted with a case of suspected or threatened FGM, the court has an obligation “to take measures within the scope of [the court’s] powers which, judged reasonably, might have been expected to avoid the risk” of FGM where that risk is “real and immediate” (see by analogy Osman v United Kingdom (1998) 29 EHRR 245, and E v Chief Constable of the Royal Ulster Constabulary and another [2009] 1 AC 536).  In E v United Kingdom (2003) 36 EHRR 519 it was said that:

“A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the state” (para.99).

The Female Genital Mutilation Act 2003 is an Act of the Parliament of the United Kingdom applying to England, Wales, and Northern Ireland. It replaced the Prohibition of Female Circumcision Act 1985, extending the ban on female genital mutilation to address the practice of taking girls abroad to undergo FGM procedures, and increased the maximum penalty from 5 to 14 years’ imprisonment[6].

The Serious Crimes Act 2015 introduced a change in the class of protected persons. The FGMA 2003 was originally framed to protect UK citizens and permanent residents from FGM offences, however the term ‘permanent’ was deleted and substituted for by the Serious Crimes Act 2015 part 5 section 70(1)-(2)(c) so that the protection was extended to those who are habitually resident in the United Kingdom.

A person is guilty of an offence if he/she:

‘Excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris.’ (s.1(1) FGMA 2003)

‘Aids, abets, counsels, or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris. (s2 FGMA 2003).

 ‘Aids, abets, counsels or procures a person who is not a United Kingdom national or United Kingdom resident to do a relevant act of female genital mutilation outside the United Kingdom.’ (s3(1) FGMA 2003).

‘If a genital mutilation offence is committed against a girl under the age of 16, each person who is responsible for the girl at the relevant time is guilty of an offence.’ (s3A(1) FGMA 2003). – This includes any person that has parental responsibility for the child, and has frequent contact with them (s3A (3) (a) and (b).

Section 5A and Schedule 2 of the Act provides for the making of female genital mutilation protection orders[7].

Schedule 2 (paras 1(1) (a) and (b) confirms that the Court may make a FGM Protection Order for the following purposes:

(a)protecting a girl against the commission of a genital mutilation offence, or

(b)protecting a girl against whom any such offence has been committed.

In deciding whether to exercise its powers under this paragraph and, if so, in what manner, 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 (Schedule 2, para 1(2)).

An FGM protection order may contain (Schedule 2, para 1(3):

(a)such prohibitions, restrictions or requirements, and

(b)such other terms,

as the court considers appropriate for the purposes of the order.

The terms of an FGM protection order may, in particular, relate to—

(a)conduct outside England and Wales as well as (or instead of) conduct within England and Wales;

(b)respondents who are, or may become, involved in other respects as well as (or instead of) respondents who commit or attempt to commit, or may commit or attempt to commit, a genital mutilation offence against a girl;

(c)other persons who are, or may become, involved in other respects as well as respondents of any kind.

The court may make an FGM protection order (Schedule 2, paragraph 2) –

– on an application being made to it, or

– without an application being made to it (in specific circumstances)

(2) An application may be made by—

(a)the girl who is to be protected by the order, or

(b)a relevant third party (this includes the Local Authority)

(3) An application may be made by any other person with the leave of the court.

(4)In deciding whether to grant leave, the court must have regard to all the circumstances including—

(a)the applicant’s connection with the girl to be protected;

(b)the applicant’s knowledge of the circumstances of the girl.

(5) An application under this paragraph may be made in other family proceedings or without any other family proceedings being instituted.

(6) The circumstances in which the court may make an order without an application being made are where—

(a)any other family proceedings are before the court (“the current proceedings”),

(b)the court considers that an FGM protection order should be made to protect a girl (whether or not a party to the proceedings), and

(c)a person who would be a respondent to any proceedings for an FGM protection order is a party to the current proceedings.

The following is also relevant, when making or considering when making an application:

• On 15 March 2019, the Children Act 1989 (Amendment) (Female Genital Mutilation) Act 2019came into force; this has the effect of including civil/family proceedings for a FGMPO within the definition of ‘family proceedings’ in section 8(4) CA 1989.  It enables care proceedings to be brought within the same application as an application for a FGMPO.

• The burden of proving the facts relevant to support the application rests with the Local Authority (on the civil burden of proof). The Local Authority must also demonstrate both the necessity and the proportionality of the range of protective orders sought in the case.

• Paragraph 5 of Schedule 2 to the Act makes provision for ex parte In any case where it is ‘just and convenient to do so’, the court may make an FGMPO even though the respondent has not been given such notice as would otherwise be required.

• An FGM protection order may be made for a specified period or until varied or discharged.

• The Act makes no provision for the court to accept undertakings in relation to the act of FGM itself (i.e. instead of making a Female Genital Mutilation Protection Order); this is unlike the provisions of section 63Eof the Family Law Act 1996 in respect of Forced marriage Protection Orders.  FGM is a form of violence against the victim, and it is always necessary for an order to be made, so that breach may be punishable as an offence.

3. The case law and guidance for considering making an application for a FGM Protection Order

Re X (FGMPO No. 2) [2019] EWHC 1990 (Fam)[8]

Application brought under section 5A and Schedule 2 of the Female Genital Mutilation Act 2003 for a Female Genital Mutilation Protection Order relating to a two-year-old girl.’

In this situation, and in many like it, the rights to respect for private and family life (Article 8 ECHR) and the right to protection from torture (Article 3) are engaged; any interference with the Article 8 rights has to be necessary and proportionate, having regard to the harm to be protected against.

In his Judgment, Mr Justice Cobb gave the specific guidance in assessing risk, when the Court is considering the making of such an order.

When considering whether (and if so to what extent) to impose orders under Schedule 2 of the 2003 Act to support a FGMPO, it is helpful to assess the risks to the child by reference to the contextual ‘macro’ factors which are relevant to the likelihood of genital cutting (i.e. the prevalence of FGM in the country, the societal expectation of FGM, the effectiveness of local law enforcement agencies etc.) together with the associated safeguards, and the individual ‘micro’ factors and safeguards pertaining to the particular case and to the subject child(ren) and family.

Risk assessment in this context, as in other contexts in family law, should be an ongoing process. Risk is generally dynamic, not static; the barometer of risk is often relatively sensitive.  Courts should be alert to the possibility that as or when new evidence emerges, and/or the contextual or individual characteristics of a given situation shift, so the index of risk may well shift. In order to assess the question of risk, Mr Justice Cobb identifies that there are two sets of factors which should be considered.

The first set of factors are the general ‘contextual’ considerations (‘macro-factors’). These macro-factors largely consider the nature, culture and societal expectations of the country of proposed travel, alongside whether or not the country or law enforcement therein offer any formal safeguards against FGM.

The second set of factors are the ‘individual’ considerations or specific features (‘micro-factors’), applicable to each case alone. This factor includes the examination of the attitudes of the child’s family towards FGM, the specific safeguards the family can offer, and “other specific features of the case which make FGM more or less likely”

At paras [91-92] of his Judgement, Mr Justice Cobb, identifies specific questions, which are to be considered when considering the macro and micro-factors as follows:

Contextual considerations / ‘Macro’ factors

1. i) What is the prevalence of FGM in the country to which it is proposed that the child will be taken?ii) What are the societal expectations of FGM in the country?iii) If known, what is the prevalence of FGM in the specific region of the country to which it is proposed that the child will be taken?

   iv) Is FGM illegal in the country to which it is proposed that the child will be taken?

   v) If illegal, how effective are the authorities in the country in question in enforcing the prohibition on FGM?

   vi) Given the extra-territorial reach of the 2003 Act, and the fact that the act of carrying out FGM (and aiding and abetting, counselling or procuring the act) is a crime punishable on indictment to imprisonment not exceeding 14 years, is there an extradition treaty between the UK and the country to which the child will be taken (Egypt in the instant case) in the event that there is evidence of a breach of the order?

   vii) What formal safeguards are available in the country to which it is proposed to take the child to mitigate the risks (access to local tourist police, FCO representatives / consular assistance, NGO workers)?

   viii) At what age are girls commonly cut in the country to which it is proposed that the child will be taken? (how does this compare with the age of the subject child?).

Individual considerations / ‘Micro’ factors

1. ix) Is there a history of FGM in the child’s wider family, or in the family to which the child will be exposed abroad?x) If so, on which generation or generations of women has this been perpetrated? Specifically, what is the position in relation to the younger generation(s)?xi) What are the attitudes of the mother and/or father to FGM generally, and/or in relation to their daughter?

   xii) Is FGM / circumcision regarded as a woman’s issue or a man’s issue within the family? Where is the power-balance in the family?

   xiii) What are the attitudes of the wider family to female circumcision generally, and/or in relation to the subject child?

   xiv) What safeguards can the family themselves devise and impose to mitigate the risk?

   xv) How well have the family co-operated with the authorities?

   xvi) What is the professional assessment of family relationships and of the capabilities of the parents?

   xvii) Are there any other specific features of the case which make FGM more or less likely?

The court went on to clarify that whilst the above factors are to be considered, it is important to note that in the context of FGM cases, risk is not static. Risk is dynamic, which makes it liable to change and thus requires regular re-assessment. In this case, X faced an increased risk of FGM as she grew older and entered into the age bracket which is statistically more vulnerable to FGM. At para [106-107] of the Judgment, Mr Justice Cobb confirms as follows:

‘Risk evaluation: It is important in this context, as in other contexts in family law, to bear in mind that risk is dynamic.  It is liable to change, and requires regular re-assessment.  Risk is highly sensitive, and rarely static.  Courts and parties should be alert to the possibility that as or when new evidence emerges, and/or the contextual or individual characteristics of a given situation shift, so the index of risk is likely to shift.  The likelihood of an event coming to pass may increase or subside; the consequence or ‘impact’ of an event – if it was to occur – may also change over time.   The most obvious illustration of this on these facts is that the risk of harm will change as X grows older; she will in a few years’ time enter the age-bracket when she is statistically far more vulnerable to genital cutting.  As it happens, the impact of the threatened harm in this case (i.e. FGM itself) will not change.

Just as risk requires regular re-assessment, so it is necessary to review relevant safeguards. When the risk of an event occurring changes, or the magnitude of impact of the event is assessed to increase or decrease, so must the court review the identification, relevance and effective application of corresponding protections.’

In reaching a conclusion in the case, Mr Justice Cobb said as follows:

‘In making the evaluation, I accept that even if I regard the risk of occurrence as relatively modest, if the risk came to pass it would nonetheless have an extreme, and irreversible, ‘impact’ on the child.  Inevitably the gravity of the potential ‘impact’ has a significant bearing on whether it is right to take the risk.  This chimes with the judgment of Thorpe LJ in Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084, and Rimer LJ in Re R (A Child) [2013] EWCA Civ 1115 at [23]: it is necessary to consider (a) the magnitude of the risk of breach of the order if permission is given; (b) the magnitude of the consequence of breach if it occurs; and (c) the level of security that may be achieved by building in to the arrangements all of the available safeguards.’

A Local Authority v M & N [2018] EWHC 870 (Fam)[9]

As to the arrangements for assessing and processing risk, Moylan LJ in the appeal hearing in this case offered the following observations at [2018] EWCA Civ 1825 at [31-32]:

“[31] The court will have to consider the degree of the risk of FGM (which, I would suggest, needs to be at least a real risk); the quality of available protective factors (which could include a broad range of matters including the court’s assessment of the parents); and the nature and extent of the interference with family life which any proposed order would cause.

[32] The need for specific analysis balancing these and other relevant factors extends to any additional prohibitions or other terms the judge may be considering including in the FGMPO. This is because each term included within the FGMPO must be separately justified. In this exercise, although the nature of the harm would, self-evidently, be a breach of Article 3, it is the court’s assessment of the degree or level of the risk which is central to the issue of proportionality and to the question of whether a less intrusive measure, which nevertheless does not unacceptably compromise the objective of protecting the child, might be the proportionate answer”.

Re A ’A Child) (Rev 1) [2020] EWCA Civ 731[10]

This case concerned an appeal against the decision of the Rt Hon Sir Andrew McFarlane, President of the Family Division who, in the exercise of the family court’s jurisdiction to make a female genital mutilation protection order under paragraph 1 of Schedule 2 of the Female Genital Mutilation Act 2003, held that a family court is not bound to take, even as a starting point, a previous assessment or determination of risk of female genital mutilation (‘FGM’) made by the Immigration and Asylum Chamber of the First-tier Tribunal (‘FtT (IAC)’) in its determination of an asylum application based upon the risk of FGM on return.

The President concluded in Re A that family courts have the broad discretion described in the FGMA 2003 to take into account all of the relevant circumstances when considering whether to make a protection order. In other words, a family court is not constrained by any prior conclusion of the FtT (IAC) and can give it such weight as it might consider appropriate in its own assessment. The Secretary of State for the Home Department challenged this conclusion and submitted that the assessment of risk undertaken by the FtT (IAC) is to be taken as the starting point or default position in any subsequent assessment of risk by the family court in considering whether to make a protection order.

The Judgment confirms therein as follows:

‘the marked difference in functions between a family court in the exercise of its jurisdiction in respect of FGM protection orders, and those of the Secretary of State (and, in its turn, the FtT (IAC)) in the exercise of their functions under the Immigration Acts. The family court’s function is to investigate, in accordance with the provisions of the FGMA 2003 and the Family Procedure Rules, whether an order should be made for the protection of a girl against FGM. The FtT (IAC)’s function is to determine whether an applicant has proved a risk on return.’

This is consistent with the approach of Black LJ in Re H (A Child) [2016] EWCA Civ 988, as follows: “25. In approaching an asylum/humanitarian protection claim, the Home Office looks to see whether the person concerned has a well-founded fear of persecution or is at real risk of serious harm for a non-Convention reason. The approach to risk is not the same as that taken in a family case. In a family case, establishing risk is a two-stage process. First, the court considers what facts are established on the balance of probabilities; then it proceeds to consider whether those facts give rise to a risk of harm, see Re J (Children) [2013] UKSC 9 […] In contrast, in an asylum/humanitarian protection claim, the material presented by the claimant is looked at as a whole with a view to determining whether there is a well-founded fear of persecution or substantial grounds for believing that a person would face a real risk of serious harm, a reasonable degree of likelihood of serious harm being what is required. There is no comparable process of searching for facts which are established on the balance of probabilities.

4. Conclusion

FGM is a global concern, and it is important to understand what it is, how and why it occurs, when children are at risk of the same and the action that must be taken. There is a duty on social workers and other professionals to report to the police if a child has been the victim of FGM or is at risk of the same. (S5B (1) and (2) FGMA 2003.

There are often reasons put forward by family members in support of the same, which will likely align with their accepted and long-standing cultural customs and traditions[11]. Nevertheless, the law in this country is clear, FGM is illegal. Support and educative work should be available to assist family members, regardless of the intended course of action.

Clear guidance is now available from the case law to assist professionals, lawyers, and Judges, as to what assessments will assist the Court in making decisions regarding the making of FGM Protection Orders. There Court should have a robust balancing analysis available to it, alongside specific details and assessment of the micro and macro factors, which are relevant to the individual circumstances of the case.

The Family Court has firmly established that decision-making regarding any application, should not be influenced by the assessments and decision-making of the Home Office regarding the level of associated risk. As such, just because a family has been refused leave to remain in the UK, and deportation is envisaged, this should not prevent the Local Authority making an application, where it considers the legal test is met.

Progress is being made in the UK, in respect of FGM and awareness of the same. On 01 February 2019, the first person was convicted of FGM in the UK.

Recommended Reading

• Multi-agency statutory guidance on female genital mutilation – GOV.UK (www.gov.uk)
• Female genital mutilation – GOV.UK (www.gov.uk)
• Female Genital Mutilation: Treating the Tears | Haseena Lockhat – Academia.edu
• The Judgment of Mr Justice Cobb in Re X (FGMPO No. 2) [2019 EWHC 1990 (Fam)

Prepared by Rosina Hodges.

[1] Female genital mutilation (who.int)

[2] FGM – National FGM Centre

[3] World FGM Map – National FGM Centre

[4] Multi-agency statutory guidance on female genital mutilation – GOV.UK (www.gov.uk)

[5] Female genital mutilation (FGM) – NHS (www.nhs.uk)

[6] Female Genital Mutilation Act 2003 (legislation.gov.uk)

[7] Female Genital Mutilation Act 2003 (legislation.gov.uk)

[8] Family Law Week: Re X (FGMPO No. 2) [2019 EWHC 1990 (Fam)

[9] Family Law Week: A Local Authority v M & N (Female Genital Mutilation Protection Order – FGMPO) [2018] EWHC 870 (Fam)

[10] Court of Appeal upholds broad discretion of family courts in FGM cases (localgovernmentlawyer.co.uk)

[11] (PDF) Female Genital Mutilation: Treating the Tears | Haseena Lockhat – Academia.edu