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Zero tolerance: Fighting FGM in the courts
6 Feb 2024
Savannah and Imogen provide a brief summary of the legal framework around the crime of Female Genital Mutilation in England and Wales.
The article reflects on the criminal case of R v Noor- a prosecution in respect of FGM that resulted in a conviction in October 2023, as well as protections against FGM available via the family courts.
One Pump Court Chambers is currently inviting expressions of interest for attendance at a roundtable on the topic of addressing FGM. Please write to firstname.lastname@example.org if you wish to participate.
Imogen Mellor is a barrister at One Pump Court specialising in Family and Immigration. She has a particular specialism in honour-based abuse and child abuse linked to faith and belief.
Savannah Sevenzo is a pupil barrister at One Pump Court. She will be accepting instructions in Crime and Family law from April 2024.
More than 200 million girls and women alive today have survived female genital mutilation (“FGM” or “Cutting”).
FGM is the practice of cutting, stitching, partially removing, or otherwise interfering harmfully with the female genitalia for non-medical reasons.
The World Health Organisation categorises FGM into four types which can be found here.
Performing FGM is a criminal offence in UK law. Currently, types one to three are automatically criminal conduct and ‘type four’ FGM’ is criminalised where the procedure involves some form of “mutilation” of the girl or woman’s body. The relevant law, both civil and criminal is now contained in the Female Genital Mutilation Act 2003. The FGMA has been in force since 3 March 2004, and includes provisions prohibiting the act of aiding, abetting, counselling or procuring a non-UK person to perform FGM on a UK resident or national aboard. This means that if person A seeks the assistance of person B to carry out FGM in another country, person A is still criminally liable.
R v Noor
There have been just two convictions under the FGMA, the most recent of which took place in October last year (2023).
By a Jury at the Old Bailey, a 39-year-old woman was found guilty of “assisting a non-UK person to mutilate overseas a girl’s genitalia”, contrary to section 3 of the FGMA 2003. In 2006, Amina Noor took a child to Kenya and whilst there, she was subjected to FGM by non-UK national(s).
What happened to the child was only discovered years later when the girl confided in her teacher, aged 16. She is now over 21 years old. This is a case where the “mandatory” reporting obligation under section 5B FGMA appears to have worked. This obligation means that regulated professionals such as teachers, social workers and medical professionals must report FGM where they know that a case has taken place (for example, where the girl tells them they had FGM carried out on them or they observe clear physical signs of FGM).
The case raised important issues in relation to how FGM is defined and understood. The defendant claimed in police interview that she had thought that the girl would be injected or pierced in a procedure known as the “Gudniin” which translates as “circumcision” in Arabic. However, the victim was examined by medical experts, who concluded that she had suffered severe mutilation of her genitalia and not an injection only. Noor stated at her trial that she had been under cultural pressures to have the procedure performed on the child, although she had denied this was the case in her police interviews.
The legal position on this is likely to develop further at the sentencing hearing at the end of February, where the court will consider factors that mitigate and aggravate the case.
Imogen Mellor of One Pump Court chambers spoke to the BBC Radio London about R v Noor last year, commenting on this being a landmark case in terms of the prosecution of a person who assisted in FGM taking place abroad but also highlighting the importance of preventative measures and safeguarding.
FGM Protection Orders
There may be less public awareness about the protections against FGM offered by the family courts, due to most cases being heard in private.
Under Section 5A and Schedule 2 of the FGMA 2003, the family court and high court have jurisdiction to grant orders to protect people from FGM.
The orders can impose multiple restrictions and specific terms, not limited to prohibiting the act of performing FGM itself which is already illegal. They can protect against preparatory steps towards FGM; for example, prohibiting someone from leaving the country with their child, removing passports, restricting contact with people who are identified as likely to influence or encourage FGM to take place.
Local authorities, parents and guardians may apply directly to the court for an order protecting someone from FGM.
Anyone else can apply for a protection order with the permission of the court using this form. It should be noted that professionals such as teachers, social workers and medical professionals are obliged to report any concerns regarding a person being at risk of FGM.
In December last year, a campaign group called The Vavengers presented a report to the House of Lords. It indicated a lack of training among NHS professions on supporting survivors of FGM, and a lack of availability of reconstructive surgery for FGM survivors in the UK.
The report further highlights the reality that 37,000 women and girls live with FGM/Cutting in England and Wales and a further 60,000 girls are at risk in the UK; which is a stark contrast from the picture reflected by the criminal courts.
The filmmaker Beryl Magoko is a survivor of FGM. Her 2018 documentary In Search features a trip to Kenya to broach the topic of FGM with her mother. The conversation happens while the two women are preparing food together. Magoko’s mother shares that she had not wanted it to happen but had allowed it. The love between them is visible, as much as the pain.
Someone in the position of Magoko’s mother in the UK may have been prosecuted under the FGMA, but it is also hard to imagine such a prosecution having a positive impact on those involved.
Sema Gornal, CEO of the Vavengers also reflected the limited efficacy of prosecutions: “We don’t actually believe prosecutions alone are the solutions; we need to look at the root causes.”
This emphasises the vital role protection orders in the family courts can play in preventing harm to girls before it happens.
Beyond legislation, education around FGM is the central focus of many campaigns, including the UN’s programme of action to end FGM by 2030.
The legal picture around FGM is one example of how the criminal justice system is just one route to protecting the rights of women and girls. Civil applications in the family courts as well as non-law-based approaches are essential. We might also apply learning from the positive focus on prevention in respect of FGM to the many other instances of violence affecting women and girls, by encouraging an attitude of stopping harm before it happens, rather than relying on punitive measures alone.
If you practice law relevant to FGM or are someone with a stake in this issue, One Pump Court Chambers are holding a roundtable discussion in recognition of the International Day of Zero Tolerance. The roundtable will take place on 19 March 2024. To register, email Scott: email@example.com
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