Tip of the iceberg: is the family court ready for a surge in activity for FGM?

Neelam Sarkaria and Gerry Campbell argue that local authorities should be more proactive in bringing applications for FGM Protection Orders to combat the “great evil” of FGM

“Given what we now know is the distressingly great prevalence of FGM in this country even today, some 30 years after FGM was first criminalised, it is sobering to reflect that this is not merely the first care case where FGM has featured but also, I suspect, if not the first one of only a handful of FGM cases that have yet found their way to the family courts…” (Sir James Munby, President of the Family Division 2015)

Female Genital Mutilation (FGM) is a crime, it is child abuse and therefore a child protection issue. Local authorities must now be more proactive to safeguard FGM victims and prospective victims by bringing more care and FGM Protection Order applications in the family court. Care proceedings and applications for obtaining orders should be a well-trodden path for professionals. The dearth of referrals, however, to the police service from education, social care and health professionals highlights that there is an inconsistent approach to identifying those who are at risk of FGM. The lack of identification by professionals of those survivors living with the consequences of FGM and a lack of trust and confidence in how the police service service will respond to a referral are contributory factors. The authors are not advocating that care proceedings should be initiated in relation to all cases where FGM has been identified or where there is a threat of it.

Statutory duties

A statutory duty is already placed on agencies to co-operate to safeguard and promote the welfare of children in ss 11 and 12 of the Children Act 2004. Professionals are also expected to follow the statutory guidance in Working Together to Safeguard Children (DfE, 2013, updated 2015), which has status under s 7 of the Local Authority Social Services Act 1970.

Local authorities, amongst other front line professionals, are faced with the responsibility of:

  • Identifying when a child may be at risk of being subjected to FGM and responding appropriately to protect the child;
  • Identifying when a child has been subjected to FGM and responding appropriately to support the child; and
  • Taking measures, which can be implemented to prevent and ultimately eliminate the practice of FGM.

Scale of the problem

To date very few FGM cases have entered the family courts as care proceedings, with the first reported case earlier this year (B&G (Children) No 2 [2015] EWFC 3). Many more cases regarding FGM will enter the care system based on the recent prevalence data from Department of Health and independent research. The “tip of the iceberg” is now visible and the scale of the problem in the UK is worrying.

The July 2014 study by City University London in collaboration with Equality Now estimates that about 103,000 women aged 15-49, and about 24,000 women aged 50 and over who had migrated to England and Wales are living with the consequences of FGM. The most notable data regarding girls at risk of FGM is that 60,000 girls aged 0-14 were born in England and Wales to mothers who had undergone FGM. The absence of data from 2011 poses a difficulty, and there is every likelihood that numbers are now much higher.

Since 1 September 2014 mandatory data regarding the prevalence of FGM in England is being collated from the 160 acute hospital providers. From September 2014 to December 2014 1946 newly identified cases of FGM were reported nationally of which 47 included patients under the age of 18 years.

Mandatory reporting duty

This data, coupled with the new mandatory reporting duty introduced through the Serious Crime Act 2015 (given Royal Assent on 3 March 2015), is likely to have a direct impact on the number of cases entering the family courts. The duty requires all regulated healthcare, teachers and social care professionals (the later only relates to Social Workers in Wales) in England & Wales to report all cases of “known” FGM where the instances which are disclosed by the victim and /or are visually confirmed, are limited to victims under the age of 18 years old, to the police within one month of initial disclosure/identification.

Failure to comply with the duty will not carry a criminal penalty but will be addressed through existing professional body disciplinary frameworks. The Home Office has, however, recently published a consultation on making this duty a statutory requirement.

Section 11 of the Children Act 2004 places a legal duty on statutory agencies to co-operate to safeguard and promote the welfare of children. This is reinforced by the European Convention on Human Rights (ECHR). All public authorities and their employees also bear a specific duty under ECHR Art 2 to safeguard the lives of those within its jurisdiction and under ECHR Art 3, which stipulates that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Working Together to Safeguard Children is by no means a new concept to professionals working in the field of child protection. The Government’s 2013 Guide to inter-agency working to safeguard and promote the welfare of children depicts the importance of having “a child-centred and coordinated approach to safeguarding” and further rightly highlights that safeguarding is everyone’s responsibility.

Community Driven Solutions

The safeguarding of children is a key to the eradication of FGM, as are Community Driven Solutions as advocated by the National Police Chiefs’ Council Lead. Given the deeply ingrained cultural nature of harmful practices the NPCC contends that Community Driven Solutions (CDS) are essential to change mindsets and behaviour within affected communities. CDS is not about: accessing communities through gatekeepers, having community problem solving or paralegal processes, which are very often driven/led by men. Networks of influential Community Champions and Role Models from within affected communities are two such options. The protection of girls and women who have undergone or at risk of FGM is everyone’s responsibility. All professionals must give active consideration to the consequences and longer-term impact of their decisions. It is here that the family courts can make the greatest difference in preventing girls from undergoing a harmful practice which has life-long consequences. Useful preventative protection will also be provided through FGM Protection Orders (FGMPOs), which were introduced by (s 73) Serious Crime Act 2015.

FGMPOs

The FGMPOs will enable local authorities – as the determined relevant third party – to be “proactive and vigilant” in taking measures to prevent girls being subjected to the “great evil” of FGM, as the President of the Family Division Sir James Munby has said in the matter of B and G (see below). The President has clearly directed in the same case that courts should not hesitate to use every weapon in their “protective arsenal” if faced with an “actual or anticipated FGM case”.

FGMPOs are designed to protect a girl against the commission of a genital mutilation offence or protecting a girl against whom such an offence has been committed. Applications for such orders will be made in the civil courts and resemble the existing forced marriage protection orders in operation and design. Breach of the FGMPO will be a criminal offence with a maximum penalty of five years’ imprisonment, or a civil breach punishable by two years’ imprisonment. There have been two such orders granted in Bedfordshire and Greater Manchester since their introduction on 17 July 2015.

The first recorded case this year involving FGM and child protection is B and G (Children) (No 2) Leeds City Council [2015] EWFC 3. This case provides important guidance for future cases of FGM. It makes the point that a child who has suffered from FGM can be considered to have reached the care proceedings threshold but that this is not a given, and each case should be considered on its facts.

The President reiterated at para 68 that “any form of FGM constitutes “significant harm” within the meaning of ss 31 and 100 of the Children Act 1989”. He cited Baroness Hale of Richmond in Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075, para 185 “that any form of FGM, including FGM WHO Type IV, amounts to ‘significant harm’”.

The President said that implications in respect of family law orders will “depend upon the particular type of FGM in question, upon the nature and significance of any other ‘threshold’ findings, and, more generally, upon a very wide range of welfare issues as they arise in the particular circumstances of the specific case…The only further comment I would hazard is that local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption”.

Local authorities, the affected communities and others within the coalition of partners have a key role to play in safeguarding those children at risk. FGM is a harmful traditional practice, which is a crime and the family courts must do everything within their power to play their part in realising the goal of eradicating FGM within a generation.

Contributors: Neelam Sarkaria & Detective Chief Superintendent Gerry Campbell

Category: 
Author details: 
Neelam Sarkaria

Neelam is Chair of the Association of Women Barristers. She qualified as a barrister in 1988 and worked for the CPS for 24 years. Neelam is now an independent criminal justice consultant and a member of the Desert Flower Foundation UK Advisory Team on Female Genital Mutilation.

Gerry Campbell

DCS Campbell is Deputy National Policing Lead for Honour-Based Abuse, Forced Marriage and Female Genital Mutilation.