The Law & FGM

4.1 Child Protection in the UK

The Criteria for Harm

The UK has child protection systems and laws to help protect children from abuse and neglect. Each nation within the UK has a framework of legislation and guidance to help identify, protect and support children at risk of or who have suffered harm. Although child protection systems vary across the UK, they are all based on principles that are founded within International Human Rights Law, including the UNCRC.

Harmful Practices Legislation

Although there is no absolute criteria for determining whether or not harm is “significant”, local authorities and agencies within them work with family members to risk assess, and a decision is made based on their professional judgement using gathered evidence.

For more information, see:
Section 31 of the Children Act 1989 (England and Wales).
Article 2 of the Children (Northern Ireland) Order 1995.
The National guidance for child protection in Scotland (Scottish Government, 2014).

• Section 31 of the Children Act 1989 (England and Wales)
• Article 2 of the Children (Northern Ireland) Order 1995
• The National guidance for child protection in Scotland (Scottish Government, 2014)
• Social Services and Well-being (Wales) Act 2014
• The Looked After Children (Scotland) Regulations 2009
• Children (Scotland) Act 1995
• The Children (Northern Ireland) Order 1995
• Children Act 1989
• Criminal Law Act 1987

4.2 Human Rights Principles & FGM

International Human Rights Law

FGM is part of the United Nations sustainable development goal 5 – to achieve gender equality with a target to “eliminate all harmful practices, such as early and forced marriage and female genital mutilation”.

Human rights laws provide us with an important framework to understanding FGM as a practice that violates the human rights of girls and women, including:

The Universal Declaration of Human Rights (UDHR)

• Article 1: All human beings are born free and equal in dignity and rights.
• Article 3: ‘Everyone has the right to life, liberty and security of person’
• Article 5: Everyone has the right to health and bodily integrity
• The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
• Article 5 requires states parties to take measures to achieve “the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes.”

The Convention on the Rights of the Child (UNCRC)

• Article 3: the best interests of the child
• Article 6: Right to life survival and development
• Article 12: Right to be heard
• Article 19: requires state parties to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence
• Article 22: Governments must provide refugee children with appropriate protection and assistance to help them enjoy all the rights in the Convention
• Article 24 outlines the need for states to abolish “traditional practices prejudicial to the health of children, a violation of that best interest
• Article 39: Children who have experienced neglect, abuse, exploitation, torture or who are victims of war must receive special support to help them recover their health, dignity, self-respect and social life

For a full summary of the UNCRC, see this resource from UNICEF: https://www.unicef.org.uk/rights-respecting-schools/wp-content/uploads/sites/4/2017/01/Summary-of-the-UNCRC.pdf

The Convention Against Torture, and other Cruel or Inhumane and Degrading Treatment and Punishment (UNCAT)

• Article 3, the right to life

International Covenant on Economic, Social and Cultural Rights (ICESCR)

• Preamble: Recognising that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights
• Article 3: state parties must “ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights
• Article 12: ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’

International Covenant on Civil and Political Rights (ICCPR)

• Preamble
• Article 9 (1) – Everyone has the right to liberty and security of person.
• Article 7 and 17: Protects individuals from “torture or cruel, inhuman or degrading treatment” and arbitrary or unlawful interference with his or her privacy

International Covenant on Economic, Social and Cultural Rights (ICESCR)

• Preamble: Recognising that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

International Covenant on Civil and Political Rights

• Preamble
• Article 9 (1) – Everyone has the right to liberty and security of person.
• Article 7 and 17: Protects individuals from “torture or cruel, inhuman or degrading treatment” and arbitrary or unlawful interference with his or her privacy

The UK’s stance

The UK is a party to the legal instruments listed above. It is important to be familar with human rights priniciples which guide our national legislation, as well as the framework for within which we should be working with children and families

4.3 UK Law & FGM

Female Genital Mutilation Act 2003

The maximum penalty for an offence under the FGM Act 2003 is up to 14 years imprisonment or a fine (or both). It is an offence to:

• Excise, infibulate or otherwise mutilate the whole or any part of a girl’s labia or clitoris.
• Aid, abet, counsel or procure a girl to excise, infibulate or mutilate her own labia or clitoris.
• Assist in the carrying out of Female Genital Mutlilation abroad, directly & indirectly.

Serious Crime Act 2015 – Legislative changes to the FGM Act 2003

1. Extension of extra-territorial powers: Offences of FGM apply to habitual and permanent UK residents
2. Anonymity for survivors of FGM: Prohibits the publication of any materials that could lead the public to identify a survivor of an offence
3. FGM Protection Orders: Can be applied for and made to protect either a girl or woman at risk of FGM
4. Offence of failing to protect a girl at risk of FGM: Each person who is responsible for a girl, under 16, when FGM was occurred could be liable under this offence. Responsible’ covers ‘a person with ‘parental responsibility’, or, a person aged 18 or over who has assumed responsibility for caring for the girl ‘ in the manner of a parent’.
5. Mandatory Reporting to the police on 101: Introduces a duty on regulated professionals, such as health and social care professionals and teachers in England and Wales, to notify the police of known cases of FGM carried out on a girl under the age of 18.

Mandatory Reporting

What is a “known” case?

1) Verbally identified cases
This is when a child under the age of 18 discloses to a regulated professional in the course of their professional duties that she has undergone FGM. This duty applies to cases directly disclosed by the survivor: if a parent, guardian, sibling or other individual discloses that a girl under 18 has had FGM, the duty does not apply and a report to the police under the Mandatory Reporting Duty is not required. However, safeguarding concerns should still be reported to the relevant Local Authority.

2) Visually identified cases
This is when a regulated professional visually identifies physical signs which appear to show that an act of FGM has been carried out on a girl under 18. For teachers and social workers “there are no circumstances in which you should be examining a girl”. However, you may identify FGM while carrying out other duties including assisting a young child to the toilet.

The report must be made by the professional who has had the disclosure or verbally identifies FGM has happened. For example, it cannot be made by the DSL of a teacher who a disclosure is made to, but can be done with their support.

The verbal disclosure is when an under 18 herself tells a professional she has undergone FGM. It does not apply to when a third party makes the disclosure.

Failure to comply with mandatory reporting can lead to internal disciplinary action.

In any other case where a professonal deems there to be risk to a girl or woman, they should follow their normal safeguarding procedures.

4.4 How to Apply for an FGM Protection Order

What is a Protection Order?

FGM Protection Orders are a civil order issued by family courts to protect girls and women who are at risk of, or who have undergone FGM. This covers aiding, abetting, counselling, procuring, encouraging, or assisting another person to commit, or conspiring or attempting to commit FGM. FGMPO’s can also be applied during criminal proceedings. Disobeying the order can lead to a person being sent to prison for up to 2 years for contempt of court. Breach of a FGM protection order is also a criminal offence with a maximum sentence of 5 years imprisonment, a fine or both.

Who can apply?

In certain circumstances, courts can issue an ex-parte order, where an FGMPO is granted even though the respondent has not been given notice of the proceedings

How to apply?

The person who is applying has to fill out a form explaining why they feel a girl/woman is a risk of FGM, giving as much detail as possible and what they or the girl/woman believes needs to happen to keep the girl/woman safe.

Download and fill in following forms:

• FGM001
• FGM006 – if you’re applying for someone else
• Form C8 – if you do not want your address, or the address of the person you’re applying for, to be shared with the respondent

You can then take the completed forms to the court you’re applying to.

What can be included in an FGMPO?

The order can include anything the judge at court feels is necessary to protect the girl/woman from FGM.

This could include:

• That FGM should not happen
• Requesting for the parents and/or girl to be worked with to educate them about FGM and how to keep safe
• Requesting that the girl has supervised/restricted contact with people who have been identified as a risk
• Removing the girl’s passport so she can’t be taken out of the country
• Asking for a paediatric examination where it is thought that the girl has undergone FGM
• Anything else that can protect a girl or woman can be included

How long can the FGMPO protect a girl/woman?

The order can be in place as long as the judge feels is necessary to keep the girl/woman safe; from weeks to years. The order can also be discharged or varied at any point – e.g., if a person of risk named in the application is no longer active, the order could be discharged. Moreover, if circumstances change during the PO, it could be varied – accounting for new risk or removing parts no longer pertinent to the case. To vary an FGMPO, you will need to fill out this form: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688164/fgm003-eng.pdf

Can I apply for other orders with the FGMPO?

An FGM Protection Order can be used alongside other court orders, such as Emergency Protection Orders and Restraining Orders. We also know that harmful practices often co-exist, and the ways in which different harmful practices intersect and diverge varies. For example, in some communities where FGM is prevalent, early forced marriage is common too. In such a case, you may seek to apply for a Forced Marriage Protection Order (FMPO) alongside the FGMPO.

What happens next?

You will be asked to attend a private hearing. If you, or the person who is at risk is worried about seeing the respondent, the court can make special arrangements to ensure their safety. Ensure you list any of these concerns on the application, to allow the court time to make any arrangements. You can read more about that here https://www.gov.uk/government/publications/female-genital-mutilation-protection-orders-fgm700/female-genital-mutilation-fgm-protection-orders:

A multi-agency response

It is important for professionals to take a multi-agency approach to applying for FGM Protecton Orders. In order to effectvely protect a girl or woman from FGM, all professionals involved in their life need to:

– Be aware that an FGMPO has been applied for or granted
– Be aware of the provisions made in the FGMPO
– Understand their role in sharing information and upholdinig the provisions in the order

In this video, Dr Charlotte Proudman, a specialist barrister, explains what FGM Protection Order’s are, how to apply for one, and what can be included in one:

In this video, Dr Charlotte Proudman, a specialist barrister, explains how to apply for multiple protection orders, and what to to consider when there are multiple harmful practices at play, or a girl or woman is at risk of other forms of harm too: