UK - FGM Rampant in London - 1 in 20 Women in Immigrant Areas

Female Genital Mutilation (FGM) is a collective term for a range of procedures which involve partial or total removal of the external female genitalia for non-medical reasons. It is sometimes referred to as female circumcision, or female genital cutting. The practice is medically unnecessary, is extremely painful and has serious health consequences, both at the time when the mutilation is carried out, and in later life.

FGM has been classified by the World Health Organization (WHO) into four major types, all of which may be relevant to the offences arising under the FGM Act 2003:

· Type I: Clitoridectomy: partial or total removal of the clitoris;

· Type II: Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora;

· Type III: Infibulation: narrowing of the virginal opening through the creation of a covering seal:

· Type IV: Other: all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.

FGM of girls is to be considered as child abuse.

Legislation on Female Genital Mutilation

Prohibition of Female Circumcision Act 1985

Female Genital Mutilation has been a specific criminal offence since the Prohibition of Female Circumcision Act 1985 canme into force on 16 September 1985.

The 1985 Act was replaced by the Female Genital Mutilation Act 2003.

Female Genital Mutilation Act 2003

The Female Genital Mutilation (FGM) Act came into force on 3 March 2004 and was amended by sections 70 to 75 Serious Crime Act 2015. This guidance reflects the changes made by sections 70 to72 which came into force on 3 May 2015.

Offences

The Act refers to "girls", though it also applies to women.

The offences are:

Section 1 Offences of female genital mutilation

1. It is a criminal offence to excise, infibulate or otherwise mutilate the whole or any part of a girl's labia majora, labia minora or clitoris

2. But no offence is committed by an approved person who performs -

a. a surgical operation on a girl which is necessary for her physical or mental health, or

b. a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.

3. The following are approved persons -

a. in relation to an operation falling with subsection (2)(a) a registered medical practitioner,

b. in relation to an operation falling within subsection (2)(b) a registered medical practitioner, a registered midwife, or a person undergoing a course of training with a view to becoming such a practitioner or midwife.

4. There is also no offence committed by a person who -

a. performs a surgical operation falling within subsection (2)(a) or (b) outside the United Kingdom, and

b. in relation to such an operation exercises functions corresponding to those of an approved person

5. For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual

Section 2 Offence of assisting a girl to mutilate her own genitalia

A person is guilty of an offence if he 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.

Section 3 Offence of assisting a non-UK person to mutilate overseas a girl's genitalia

1. A person is guilty of an offence if he aids, abets, counsels or procures a person who is not a United Kingdom resident to do a relevant act of female mutilation outside the United Kingdom.

2. An act is a relevant act of female genital mutilation if

a. it is done in relation to a United Kingdom national or a United Kingdom resident, and

b. it would, if done by such a person, constitute an offence under section 1

3. But no offence is committed if the relevant act of female genital mutilation

a. is a surgical operation falling within section 1(2)(a) or (b), and

b. it is performed by a person who, in relation to such an operation, is an approved person or exercises functions corresponding to those of an approved person.

Section 3A Offence of failing to protect a girl from risk of genital mutilation

Section 72 of the Serious Crime Act 2015 inserts section 3A into the FGM Act to create an offence of failing to protect a girl from FGM, with effect from 3 May 2015.

1. If an offence of FGM is committed against a girl under the age of 16, each person who is responsible for the girl at the time that FGM occurred will be guilty of an offence.

2. For the purposes of this section a person is responsible for a girl in the following circumstances:

3. The first case is where the person:

a. has parental responsibility for the girl, and

b. has frequent contact with her.

4. The second case is where the person:

a. is aged 18 or over, and

b. has assumed (and not relinquished) responsibility for caring for the girl in the manner of a parent.

Defence

5. It is a defence for a defendant to show that

a. at the relevant time, the defendant did not think that there was a significant risk of FGM being committed against the girl, and could not reasonably have been expected to be aware that there was any such risk; or

b. the defendant took such steps as he or she could reasonably have been expected to take to protect the girl from being the victim of an FGM offence.

6. A person is taken to have shown the fact mentioned in subsection (5)(a) or (b) if

a. sufficient evidence of the fact is adduced to raise an issue with respect to it, and

b. the contrary is not proved beyond reasonable doubt.

7. For the purposes of subsection (3)(b), where a person has frequent contact with a girl which is interrupted by her going to stay somewhere temporarily, that contact is treated as continuing during her stay there.

8. In this section an offence of FGM means an offence under section 1, 2 or 3 and for the purposes of subsection (1) the prosecution does not have to prove which section it is.

Section 3A evidential considerations

To be responsible for a girl, the person will either: have parental responsibility for the girl (for example, mothers, fathers married to the mothers at the time of birth, and guardians) and have frequent contact with her; or be a person aged 18 or over who has assumed responsibility for caring for the girl in the manner of a parent (for example family members to whom parents might send their child during the summer holidays).

The requirement for frequent contact is intended to ensure that a person who, in law, has parental responsibility for a girl, but who in practice has little or no contact with her, would not be liable.

In the manner of a parent is intended to ensure that a person who is looking after a girl for a very short period such as a baby sitter would not be liable.

To prove the section 3A offence the following evidence may be considered:

· Evidence of the relationship between the girl and her parents / those with parental responsibility

· Evidence the girl had suffered FGM. This includes medical evidence of the initial discovery (eg a nurse), as well as expert evidence confirming that FGM has been carried out and what type of FGM.

· If possible, evidence that the girl had been born with normal genitalia or whether the medical expert can indicate that it was presumed.

· Consider obtaining evidence that FGM was illegal in the country where it is alleged the procedure was carried out. This may support the knowledge of those with parental responsibility; i.e. that they didnt take the necessary precautions to avoid the mutilation, knowing of the risk and the illegality.

Where a defence is raised based on having left the child with another for some time, consideration might be given to obtaining evidence of the immediate effects of the operation. In many cases the child is bound by the legs for some time - the recovery period is not short. They will be in pain and bed-bound for a significant time. An FGM expert may be able to assist here.

Section 4 Extension of sections 1 to 3A to extra-territorial acts or omissions

Section 4 extends the offences outlined in sections 1 - 3A to any act done outside the UK by a UK national or UK resident.

An offence under section 3A can be committed wholly or partly outside the United Kingdom by a person who is a United Kingdom national or a United Kingdom resident.

If an offence under this Act is committed outside the UK, proceedings may be taken and the offence may be treated as having been committed anywhere in England, Wales or Northern Ireland.

Section 4A Protection for victims of FGM

Section 72 of the Serious Crime Act 2015 inserts section 4A (and Schedule 1) into the FGM Act 2003 to make provision for the anonymity of victims of FGM. The effect of these provisions is to prohibit the publication of any matter that would be likely to lead members of the public to identify a person as the alleged victim of any offence under the FGM Act 2003. The prohibition lasts for the lifetime of the alleged victim and covers any information which, whether on its own or pieced together with other information, would be likely to lead members of the public to identify the alleged victim.

Publication is given a broad meaning and would include traditional print media, broadcasting and social media such as Twitter or Facebook.

Exemptions

There are two limited circumstances where the court may disapply the restrictions on publication:

· Where a person being tried for an FGM offence, could have their defence substantially prejudiced if the restriction to prevent identification of the person against whom the allegation of FGM was committed is not lifted; or

· Where preventing identification of the person against whom the allegation of FGM was committed, could be seen as a substantial and unreasonable restriction on the reporting of the proceedings and it is considered in the public interest to remove the restriction.

Breach of the restrictions

Contravention of the prohibition on publication is an offence. It will not be necessary for the prosecution to show that the defendant intended to identify the victim. In relation to newspapers or other periodicals (whether in print form or online editions) and radio and television programmes, the offence is directed at proprietors, editors, publishers or broadcasters rather than individual journalists. Any prosecution for the offence requires the consent of the Attorney General. This is a summary only offence.

Defence

There are two defences:

· Where the defendant had no knowledge (and no reason to suspect) that the publication included content that would be likely to identify a victim or that a relevant allegation had been made.

· Where the victim (when aged 16 or over) had freely given written consent to the publication.

These defences impose a reverse burden on the defendant, that is, it is for the defendant to prove that the defence is made out on a balance of probabilities, rather than imposing a requirement on the prosecution to show, beyond reasonable doubt, that the defence does not apply.

Penalties for offences

All offences (with the exception of s.4A which is summary only) are triable either way. A person is guilty of an offence under sections 1, 2and 3 of this Act is liable:

a. on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both);

b. on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both).

A person guilty of an offence under section 3A of this Act is liable:

a. on conviction on indictment, to imprisonment for a term not exceeding 7 years and/or an unlimited fine;

b. on summary conviction, to imprisonment for a term not exceeding six months and/or an unlimited fine.

A person guilty of an offence under section 4A of this Act is liable on summary conviction to an unlimited fine.

Definitions of Girl and UK National

The term "girl" includes "woman".

A United Kingdom national is an individual who is:

a. a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;

b. a person who under the British Nationality Act 1981 is a British subject; or

c. a British protected person within the meaning of that Act.

A United Kingdom resident is defined as "an individual who is habitually resident in the UK.

The term "habitually resident" covers a person's ordinary residence, as opposed to a short temporary stay in a country.