Response of the Equality and Human
Rights Commission to the Consultation
Consultation details
Title
Source of
consultation
Date
Introducing mandatory reporting for FGM
The Home Office and The Rt. Hon Lynne
Featherstone MP
January 2015
About the Equality and Human Rights Commission
1. The Equality and Human Rights Commission is a statutory body, established
under the Equality Act 2006. Its statutory duties include promoting equality of
opportunity, working towards the elimination of unlawful discrimination, and
promoting awareness, understanding and protection of human rights.
2. The Commission enforces equality legislation on age, disability, gender
reassignment, marriage and civil partnership, pregnancy and maternity, race,
religion or belief, sex, sexual orientation, and encourages compliance with the
Human Rights Act 1998. It gives advice and guidance to businesses, the
voluntary and public sectors, and to individuals.
3. We have a statutory duty under the Equality Act 20061 to encourage and
support the development of a society in which: people's ability to achieve their
potential is not limited by prejudice or discrimination; there is respect for and
protection of each individual's human rights; there is respect for the dignity
and worth of each individual; each individual has an equal opportunity to
participate in society; and there is mutual respect between groups based on
understanding and valuing of diversity and on shared respect for equality and
human rights.
4. We are also responsible for monitoring the effectiveness of the equality and
human rights enactments and advising on the effectiveness of enactments, as
well as the likely effect of a proposed change of law.2
5. As a UN accredited National Human Rights Institution with ‘A’ status, the
Commission is required to ‘promote and ensure the harmonisation of national
legislation, regulations and practices with the international human rights
instruments to which the State is a party’.3 This includes the European
Convention on Human Rights, incorporated in the Human Rights Act 1998.
Find out more about the Commission’s work at: http://www.equalityhumanrights.com
1
2
3
Equality Act 2006, section 3.
Equality Act 2006, section 11.
Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly
resolution 48/134 of 20 December 1993.
Consultation response
1. The Commission’s response to the consultation reflects the evidence that we
submitted in February 2014 to the inquiry by the Home Affairs Select
Committee.4 At that time we said that Female Genital Mutilation (FGM)
amounts to torture and is a violation of human rights. For ease of reference,
our account of the human rights implications of FGM, and the Government’s
obligations, is set out at the end of this consultation response.
2. We welcome the concerted efforts being made by the UK Government to
tackle FGM, and its clear affirmation that FGM is a form of child abuse and
violence against women and girls.
FGM reporting
3. A principle informing our response to the consultation is that FGM should be
addressed within an overall framework of violence against women and girls,
and an overall human rights framework. This implies that requirements and
arrangements for professionals to report cases of FGM should be integrated
within safeguarding procedures that apply to all forms of child abuse. As the
consultation document states: ‘FGM is child abuse and a form of violence
against women and girls, and therefore should be dealt with as part of existing
child and adult safeguarding/ protection structures, policies and procedures’.
4. In short, we consider that victims of FGM and other forms of violence are
likely to be better served by more effective implementation of existing
requirements, and stronger mechanisms of accountability for meeting
safeguarding and reporting obligations, rather than specific and separate
arrangements for this particular form of child abuse. As we said in our
evidence to the Home Affairs Select Committee, our view is that the existing
international and domestic legal frameworks are sufficient to tackle FGM
effectively, if the authorities responsible made full and proactive use of their
powers to act.
4
See: http://www.equalityhumanrights.com/legal-and-policy/our-legal-work/parliamentary-briefings/submissionhome-affairs-select-committee-inquiry-female-genital-mutilation [Accessed: 17 November 2015].
5. We support focused efforts to ensure that relevant professionals are well
informed about FGM, are able to respond appropriately to disclosures or
visual confirmation that mutilation has taken place, and are clear that FGM
amounts to child abuse and should be reported accordingly. For example, we
are encouraged by the statement in the consultation document that the
Government is considering how to put the multi-agency practice guidelines on
a statutory footing.
6. However we have reservations about the proposal to single out FGM for a
specific statutory reporting duty. It is not clear from the consultation document
why the Government proposes to introduce differentiated requirements in
relation to FGM, nor is it clear how the proposed requirements would
materially differ from those that already exist (or alternatively, why the
additional measures envisaged should apply only to FGM rather than to all
forms of child abuse).
7. We note that there are concerns about the implementation, monitoring and
accountability mechanisms relating to the existing reporting requirements on
child abuse, and FGM in particular. Ways of strengthening the operation of
existing reporting requirements, or ensuring that clear requirements apply to
all relevant professionals, should be considered. Existing sanctions for
professionals who fail to report child abuse must be enforced rigorously
against those who fail to report children at risk of, or victims of FGM.
8. We note that the consultation document proposes reporting to the Disclosure
and Barring Service as a possible sanction for failure to report FGM.
Consideration should therefore be given to whether such a sanction would
also be applied to a failure to report any form of child abuse.
9. To help mitigate possible unintended consequences identified in the
consultation document, such as excessive risk aversion among professionals,
consideration should be given to how accountability for safeguarding
requirements can be strengthened at an institutional level, in place of an
excessive focus on individual failings after an incident has occurred.
10. Irrespective of whether mandatory FGM reporting is introduced, relevant
professionals should receive high quality mandatory training and have better
access to guidance. This will enable them to be able to identify girls at risk as
well as FGM survivors. This is also vital so that they can help them to access
appropriate support services. In particular, this is important for teachers,
health and social care staff, the police, immigration officers and nongovernment organisations working with children and young people. Relevant
government departments should also take action to remind them of their
duties. The importance of an integrated system for surveillance and action
between concerned authorities/agencies cannot be overstated.
11. The Commission also notes that there is currently no distinct classification for
FGM offences for the purposes of crime reporting. Therefore, it would be
helpful if the UK Government could clarify how they will be able to capture
accurate data - and report on - the prevalence of FGM offences, following any
introduction of mandatory reporting.
Adult survivors and specialist support services
12. We note that it is proposed that the reporting requirement would apply only in
relation to victims under the age of 18. As we have said previously, where the
presenting FGM survivor is an adult and does not want the crime against her
reported to the police, care must be taken to avoid criminalising the victim and
to protect her right to privacy. At the same time, appropriate safeguarding
measures must be in place for any female child considered to be at increased
risk of FGM due to their relationship with those who practice or support FGM.
13. Crucially, whether or not cases of FGM presenting as adult survivors are
reported to the police, adult victims should be referred to specialist advice and
support services and such services should be properly funded to meet need.
Health and social care services should ensure that there are clear pathways
to appropriate counselling and medical services for FGM survivors, including
reconstructive or reversal surgery, and should work with communities to
ensure that information about these services reaches those who need it.
14. More broadly, it is essential that steps are taken to ensure the long-term
sustainability of non-statutory services that specialise in supporting women
and girls who have been subject to any form of gender-based violence.
Whereas some victims of FGM (and other forms of abuse) may come to the
attention of professionals in statutory services, a far greater number are
unlikely to ever disclose their experience of abuse to such professionals, and
specialist community based services fulfil an important role in ensuring
support is available to all victims.
15. It is clear that a range of approaches has been developed for both preventing
FGM and for supporting women after FGM. These include (but are not limited
to) working with young people in affected communities to enable them to
challenge cultural norms and providing counselling for survivors. The main
barrier that organisations delivering such solutions face is how they can
sustain or even expand their work due to uncertain funding streams. This is a
critical issue for the UK Government to address in order to be able to
effectively combat FGM. We are aware that some funding has been made
available this financial year to voluntary bodies working to prevent FGM.
While this is a very welcome development it is a relatively small amount,
considering the number of women and girls potentially affected by FGM. For
example, the first official figures collected by the NHS on FGM provide some
useful data. They indicate that over 1,700 FGM survivors were treated from
April to September 2014. This represents a minority of victims, i.e. those who
have who have received medical care following FGM.
16. The Istanbul Convention on preventing and combating violence against
women and domestic violence has been signed but not yet ratified by the UK.
As we have said previously (in evidence to the Joint Committee on Human
Rights inquiry into violence against women and girls) implementation of the
Convention would require a number of operational improvements, in particular
to ensure that support services (for all forms of violence against women and
girls including FGM) are adequately funded. Evidence submitted to the
CEDAW Committee in 20135 suggests there may be shortfalls so that
specialist support services are not available to ‘all women victims of violence
and their children’ as required by Article 22(2) of the Istanbul Convention. To
demonstrate compliance with the Istanbul Convention, the UK Government
and devolved administrations should analyse the impact on services of
current funding arrangements. If it is found that the current approach to
5
Forty-two women’s and human rights organisations from across the UK, many of them involved in the delivery
of the front-line support services required by Articles 20-25 of the Istanbul Convention, submitted a shadow report
to the Committee examining the UK against the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW). See: http://thewomensresourcecentre.org.uk/our-work/cedaw/cedaw-shadow-report/
[Accessed: 17 November 2015].
funding does not meet these requirements, we consider that the obligation
may need to be enshrined in domestic legislation.
The consultation process
17. We are concerned that the duration and dates of the consultation - just over a
month and over the Christmas period - may result in a number of key bodies
(particularly educational bodies) not being able to respond. This is not ideal in
light of the importance of the matter being considered, so we hope that the
Government will consider late responses, and will consider undertaking
interviews or focus groups with staff from voluntary bodies who are working to
prevent FGM and to support survivors. They will have an informed
understanding of what impact (both positive and negative) mandatory
reporting might have. For example, would it provide a deterrent in affected
communities as intended and prevent FGM? Could it act as a barrier to FGM
survivors seeking antenatal care, cervical cancer screening, healthcare
services including psychological support, potentially leading to further health
problems for themselves or their children? The Commission has contacted a
wide range of organisations with relevant expertise to encourage them to
respond to this consultation in light of their critical experience and knowledge.
The human rights implications of FGM and the
Government’s obligations
FGM violates a number of human rights obligations including, because of its role in
the sexual, social and economic subjugation of women, the principle of equality and
non-discrimination on the basis of sex.
European Convention on Human Rights (ECHR)
In the Commission’s view, the practice of FGM engages Article 2 (Right to life) and
Article 3 (Prohibition of torture, and inhuman or degrading treatment or punishment)
of the ECHR and, given the risks of FGM to the safety of victims, the positive
obligation on states under Article 2 to take steps to prevent avoidable losses of life.
UN Convention on the Rights of the Child (CRC)
Article 24 of the CRC calls for the prohibition of all traditional practices that are
prejudicial to the health and wellbeing of children.
UN Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW)
The UN has called for the elimination of FGM in all girls under 18 years of age, and
for all states which accede to CEDAW to take urgent steps to eliminate FGM. The
recent Concluding Observations of the UN CEDAW Committee expressed concerns
about the persistence of FGM and the lack of convictions to date in the UK.
UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment
The 2008 Report of the Special Rapporteur made clear that ‘even if a law authorizes
the practice, any act of FGM would amount to torture and the existence of the law by
itself would constitute consent or acquiescence by the State’. It further stated that
FGM ‘can amount to torture if states fail to act with due diligence’.
Istanbul Convention on Preventing and Combating Violence against Women
and Domestic Violence
This Convention (signed but not yet ratified by the UK) sets out obligations relating to
data collection and research, training of professionals, education and other matters,
in respect of violence against women generally and FGM specifically.
The State’s duty to tackle FGM
The Commission’s unambiguous and robust position is that FGM amounts to torture
and risks the health and lives of girls and women. The continued practice of FGM in
Britain is therefore a clear violation of the rights of girls and women, and the lack of
effective protection against this violation breaches the State’s international legal
obligations. The fact that domestic law prohibits FGM does not fully discharge the
State’s obligations; the State is under a positive duty to ensure those at risk have
effective protection. Misplaced cultural sensitivity towards communities which
practice FGM causes harm to girls and women and fails to protect their human
rights.