In 2019, the press published the shocking story of a mother who became the first person to be convicted of performing Female Genital Mutilation (FGM) in England and Wales. The mother was sentenced to 11 years in prison. FGM is illegal in the UK.
The World Health Organisation describes Female Genital Mutilation as being:
‘All procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. ‘
The Children Act 1989 (Amendment) (Female Genital Mutilation) Act 2019 received Royal Assent on 15 March 2019. This amendment came into force immediately.
The effect of the statute amends the Children Act 1989 so that proceedings under Section 5A of, and Schedule 2 to, the Female Genital Mutilation Act 2003 are family proceedings.
One effect of the change will permit the Family Courts to act quickly where Female Genital Mutilation has taken place. This means that when the Court is addressing an application for Female Genital Mutilation Protection Order (FGMPO), they will have the power and ability under Children Act 1989 to make other orders to protect the child. This measure only extends to England and Wales.
The effect of the amendment will allow an applicant for FGMPO to also apply for a care, supervision or another appropriate order within the same proceedings. This allows for issues to be dealt with swiftly, rather than bringing a separate set of proceedings to the Court’s attention. As the law previously stood, if an applicant Local Authority for a FGMPO wanted to also make an additional application for a care or supervision order, a separate application would be required. Now that FGMPO applications are placed within the definition of ‘Family Proceedings’, there is no requirement to commence separate proceedings. All the issues can be dealt under one set of proceedings, thus avoiding potential delay.
There are several orders that the Courts can make under the new provision:
- Care Order- places the child under the care of the Local Authority
- Supervision Order- places the child under the supervision of the Local Authority
- Interim Care/Supervision Order-places the child under temporary care/supervision while Court proceedings are ongoing.
- Special Guardianship Order- places the child in the care of a family member or another person known to the child.
Legal History of FGM
Female Genital Mutilation became a criminal offence in the UK in 1985 under the Prohibition of Female Circumcision Act 1985. The maximum term of imprisonment was 5 years.
The Serious Crime Act 2015 came into force and said that anyone who commits FGM can face up to 14 years imprisonment, a fine or both. Anyone failing to protect a girl from potential risk of FGM can in fact face up to 7 years in prison, a fine or both.
The above Act covers the following:
It is an offence for any person (regardless of their nationality or residence status) to:
- Perform FGM in England and Wales;
- Assist a girl to carry out FGM on herself in England and Wales; and
- Assist (from England or Wales) a non-UK person to carry out FGM outside the UK on a UK national or UK resident.
If FGM is committed against a girl under the age of 16, each person who is responsible for the girl at the time the FGM occurred could be guilty of the offence of failing to protect her from the risk of FGM.
It is also an offence for a UK national or UK resident (even in countries where FGM is not illegal) to:
- Perform FGM abroad;
- Assist a girl to perform FGM on herself outside the UK; and
- Assist (from outside the UK) a non-UK person to carry out FGM outside the UK on a UK national or UK resident.
An offence of failing to protect a girl from risk of FGM can be committed wholly or partly outside the UK by a person who is a UK national or UK resident. The extra-territorial offences of FGM are intended to cover taking a girl abroad to be subjected to FGM.
The Female Genital Mutilation Act 2003 went on to provide lifelong anonymity for victims of FGM. This means that no information may be published that could identify a girl or woman as a victim of FGM, even if there is no eventual Court case.
It introduced FGM Protection Orders which are new civil orders to protect victims or potential victims of FGM. An order could include, for example, a requirement for a passport to be surrendered to prevent a girl being taken abroad for FGM.
It provides for a mandatory reporting duty which requires regulated health and social care professionals and teachers in England and Wales to report ‘known’ cases of FGM in under 18s to the police. The duty came into force on 31 October 2015
If you know someone who has been affected by above issue or you have any concerns regarding FGM, please do not hesitate to contact a member of the Family Team at our branches in Leicester and Loughborough who will be able to assist.