Albion Chambers
FGM and the Family Court
Western Circuit
Nkumbe Ekaney QC
28.02.2015
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Summary
•
•
•
•
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Introduction – FGM
Some statistics
The Criminal Law
The Family Court
In the matter of B and G (Children) (2) (2015)
EWFC 3
• Implications; sec 31 CA, welfare and
proportionality
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Introduction
• FGM encompasses procedures that deliberately
change or alter or cause injury to the female
genital organs for non medical reasons. There are
no health benefits to the practice. It can result in
severe or serious bleeding, infection, infertility and
in some cases complications in child birth and
problems urinating.
• FGM is generally carried out on girls between birth
and the age of 15.
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Statistics
• WHO figures suggest that more than 125 million
girls and women have been subjected to the
practice in about 29 countries in the Middle East
and Africa. It is also practised in certain parts of
Asia.
• In this country the Health and Social Care
Information Centre alleges that on average 463
FGM cases are reported monthly by English
hospitals so that is about 15 cases per day.
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• A 2014 study carried out by Equality Now and City
University London estimated that in 2011 about
103,000 women between the ages of 15 and 49
who were immigrants to England and Wales were
living with the consequences of FGM.
• Another approximately 10,000 females under the
age of 10 had either undergone FGM or were
believed to be at risk of undergoing FGM.
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• In June 2013 the NSPCC launched an FGM
helpline that is believed to have received more
than 500 calls so far.
• John Cameron, head of NSPCC said “these new
figures indicate that FGM is a bigger problem in
the UK than we thought and there are obviously
children at risk of being subjected to this cruel and
unnecessary practice right now.”
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The Criminal Law
• The Prohibition of the Female Circumcision Act
1985 is the precursor to the Female Genital
Mutilation Act 2003.
• (1) A person is guilty of an offence if he excises,
infibulates or otherwise mutilates the whole or any
part of a girl’s labia majora,labia minora or clitoris.
• See sec 2 for circumstances when no offence is
committed.
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• The enactment of the Female Genital Mutilation
Act 2003 reinforced the UK criminal law making it
an offence for UK nationals or permanent
residents to carry out FGM abroad, or to aid, abet,
counsel or procure the carrying out of FGM
abroad, even in countries where the practice was
legal. The maximum penalty for such an offence
was increased from 5 to 14 years.
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WHO Classification
• The World Health Organisation in a statement
emanating from its Fact Sheet N241 (Female
Genital Mutilation) Published in February 2014
classifies FGM as follows;
• Type 1
• Type II
• Type III
• Type IV
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FGM Type I
• TYPE I
• Clitoridectomy involving the partial or total removal
of the clitoris [small, sensitive and erectile part of
the female genitals] and in some cases partial or
total removal of the prepuce [the fold of skin
surrounding the clitoris].
• Ia involves removal of the clitoral hood or prepuce
only and Ib refers to the removal of the clitoris with
the prepuce.
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FGM Type II
• TYPE II
• Excision – partial or total removal of the clitoris
and the labia minora with or without excision of the
labia majora [the labia are the lips that surround
the vagina].
• IIa involves the removal of the labia minora only.
IIb the partial or total removal of the clitoris and
the labia minora; IIc the partial or total removal of
the clitoris, labia minora and the labia majora.
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FGM Type III
• Type III
• Infibulation – the narrowing of the vaginal opening
with the creation of a covering seal by cutting and
repositioning the labia minora and/or labia majora
with or without excision of the clitoris.
• IIIa involves the removal and positioning of the
labia minora and IIIb involves the removal and
repositioning of the labia majora.
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FGM Type IV
• Type IV
• This is unclassified and involves all other harmful
procedures to the female genitalia for non-medical
purposes including pricking, piercing, incising,
scraping, and cauterizing the genital area.
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In the matter of B and G
(Children) (2) (2015]) EWFC 3
• Brief facts –
• Care proceedings involving two young children a
boy aged 4 and a girl aged 3. The parents of
African heritage. The father was born in Africa and
immigrated to this country whilst the mother was
born in a Scandinavian country and came to the
UK as a teenager. They were married here.
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• The proceedings were precipitated by the
mother seemingly abandoning the girl in an
alleyway in the centre of a northern town. The
mother was diagnosed with a schizo-affective
disorder.
• The children were placed in foster care and
the foster mother expressed concerns about
the unusual presentation of the girl’s genitalia.
.
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• The child was subjected to two intimate
examinations; one by a local well respected
paediatrician experienced in the investigation of
sexual abuse. The second examination was a joint
and carried out by the same paediatrician and a
court appointed expert, midwife, experienced in
the treatment and management of women who
had been the victims of FGM.
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ISSUES FOR CONSIDERATION
• The case was listed before Munby P. The issues
were;
• Whether the girl had been subjected to FGM? And
if so, what type?
• If FGM was established, did it amount to
“significant harm” under Section 31 of the Children
Act 1989?
• What were the implications of the findings?
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• The Local Authority case was that the girl had
been subjected to FGM Type IV and as such had
suffered significant harm.
• The local authority further alleged that harm was
caused to the children as a result of neglect of the
children, their exposure to domestic abuse and the
deleterious effect of mother’s serious mental
health.
• There were alternative care plans depending on
the court’s findings but adoption was contemplated
should FGM and domestic abuse be found.
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• “Local Authorities need to be pro-active and vigilant
in taking appropriate protective measures to prevent
girls being subjected to FGM. And, as I have already
said, the court must not hesitate to use every weapon
in it’s protective arsenal if faced with a case of actual
anticipated FGM. An important tool which lies readily
to hand for use by local authorities is that provided by
section 100 of the 1989 Act. The inherent jurisdiction,
as well as all the other jurisdictions of the High Court
and the Family Court must be as vigorously
mobilised in the prevention of FGM as they have
hitherto in relation to forced marriage.
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• 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. The courts alone, whether the family
courts or the criminal courts, cannot eradicate this
great evil, but they have an important role to play
and a very much pivotal role than they have
hitherto been able to play.” [Para 78]
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The Experts- Dr Alison Share
• Consultant Paediatrician
• Dr Share initially examined the child and the
examination was recorded on DVD using video
colposcope. Following the first examination she
concluded that there was evidence that part of the
child’s clitoris and clitoral hood had been removed
with scarring present to her clitoral area. She said
she thought it appropriate that a second opinion be
obtained, but in her opinion the child had been the
victim of FGM Type I and possibly Type II.
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• An adoption medical was completed by Dr Share
in which she said there was evidence of scarring
around the left side of the child’s clitoral hood
indicative of Type I FGM.
• At a later date, Dr Share and the now appointed
court expert, Comfort Momoh examined the girl
again and this was recorded on DVD using a video
colposcope. The two experts had discussed Dr
Share’s earlier findings, significantly her finding
regarding scarring.
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• The notes of the examination said, regarding the
clitoris “hood of clitoris (clitoris not visible)” “right
labia minora (appears missing)”
• Comfort Momoh’s conclusion was that the child
had been subjected to some form of FGM. (“vulva
does not appear normal”).
• Dr Share’s report following the second
examination concluded that the clitoris appeared
to be deficient with the possibility of scarring on
the left side. She and Comfort Momoh assessed
that the child was a victim of FGM.
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The Experts – Dr Share
• Dr Share is an experienced and highly regarded
consultant community paediatrician but did not put
herself forward as having particular expertise in
FGM.
• Candidly admitted that her initial findings were
wrong and that she changed her mind even after
the second examination.
• Entirely honest, open and frank witness.
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The Experts – Dr Share
• Critical question is how reliable witness she was in
terms of what she thought she had seen when she
was examining G. [See paragraph 44 of B&G).
• Unable to give a clear – accurate or consistent
account of what it is that she thought she was
seeing when she was examining G.
• Quite impossible to rely on Dr Share’s evidence as
establishing local authority’s case.
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The Experts – Dr Comfort Momoh
• Midwife and FGM, reproductive and public health
specialist. [See paragraph 18 of B&G supra].
• Dr Momoh merited all the harsh criticism expressed
by counsel for the parents. Whatever her expertise in
relation to FGM in pregnant women, in relation to
young children, it was extremely limited.
• Her report in oral evidence were well below the
standard required for an expert witness. She was not
a reliable witness. Her oral evidence was exceedingly
unsatisfactory. [See paragraph 45 of B&G].
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The Experts – Professor Sarah
Crieghton
• Instructed following a Part 25A application by the
father’s team.
• She is a consultant gynaecologist with a major
interest in paediatric and adolescent gynaecology,
reconstructive genital surgery and female genital
mutilation. [See paragraph 19 of B&G].
• Professor Creighton concluded that G’s clitoris,
labia minora, labia majora and vagina are within
normal limits.
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The Experts – Professor Sarah
Crieghton
• There was no evidence of removal of any genital
tissue.
• There was no evidence of WHO FGM types I,II or
III.
• She was unable from the DVD of the earlier
intimate examinations to confirm the scar to the
left lateral aspect of the child’s clitoris as described
by Dr Share and Comfort Momoh.
• A scar of this nature, if present could be consistent
with type 4 FGM.
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The Experts
• An experts’ meeting took place and it is plain that
Professor Creighton with her vast experience of
FGM carried the day.
• The President remarked that she was the only one
of the three with real experience of FGM in the
paediatric context. Her evidence, both written and
oral was clear and measured; it did not change; it
was delivered with authority; it carried conviction.
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• The decision was that the court was not
persuaded of the presence of the scar which was
now the only feature relied upon by the Local
Authority in support of the allegation of FGM. [See
paragraph 51).
• There was no evidential basis for finding that the
child was at risk of being subjected to FGM in the
future. Professor Creighton discounted as a matter
of principle the risk of the child being subjected to
FGM in the future, even if she had been subjected
to Type IV FGM.
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• The limited number or dearth of experts in this
field.
• Specific training highly desirable.
• At present 12 specialist FGM clinics throughout
the country of which 6 are in London.
• One specialist paediatric FGM clinic in the UK
[Professor Sarah Creighton's].
• Knowledge and understanding of classification of
FGM. WHO classification most widely used and
should be used.
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• The future and lessons to be learned. [See
paragraph 79 of B&G].
• Whoever is conducting the examination [and
colposcope wherever possible], it is vital that clear
and detailed notes are made, recording (with the
use of appropriate drawings or diagrams) exactly
what is observed. If an opinion is expressed in
relation to FGM it is vital that (a) the opinion is
expressed by reference to the precise type of
FGM that has been diagnosed which must be
identified clearly and precisely and (b) that the
diagnosis is explained, clearly and precisely by
reference is recorded as having been observed.
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FGM Threshold and Proportionality
• Munby P enquired at the outset of the case
whether Type IV FGM, the type which was alleged
the child had suffered in this case, satisfied the
threshold criteria. And, if proved, was adoption
proportionate if that was the sole threshold finding.
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• In order to fully understand B&G it is important to
reiterate that the harm alleged to have been
suffered by the child was Type IV FGM, that is a
cut or nick causing a small scar to the left of the
child’s clitoris. More radical and/or invasive FGM
was not alleged.
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• It was however said that there was a particular
issue in relation to FGM Type IV which “cannot be
shirked”. [See paragraph 58].
• The academic debate about the objections for
FGM apply to male circumcision. In other words,
reconciling the prohibition of FGM in all forms with
the law’s toleration of male circumcision.
• How do you rationalise it using Section 31 of the
Children Act 1989?
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• Munby P said I do not want there to be any doubt,
FGM is a criminal offence under the Female
Genital Mutilation Act 2003. It is an abuse of
human rights. It has no basis in any religion. The
President described it as “barbarous” and a
practice which is beyond the pale.
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Section 31 Threshold
• Circumcision of a male involves the removal of
some or all of the foreskin.
• It can be less invasive as FGM Types I,II &III.
• But more invasive than some forms of FGM Type
IV.
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Justifications for Male Circumcision
• Religious, medical and/or cultural.
• Often due to custom/or for conventional reasons.
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Is FGM significant harm?
• Overwhelmingly yes. See paragraph 67 and 68 of
the judgement in B&G.
• FGM cannot be said to be “trivial” or “unimportant”
when considering harm in the test set out by Lady
Hale in Re B (Care Proceedings: Appeal) [2013]
UKSC 33 at paragraph 185.
• The two limbs of Section 31. What is significant
harm and what is reasonable? Given the objection
of society to FGM it cannot be said to be
reasonable as male circumcision is.
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Consequences if Section 31 not
crossed
• Legitimisation of an Act that is illegal and in breach
of Human Rights.
• The clear conflict with criminal law and bringing
the law into disrepute.
• Inconsistency with other forms of harm e.g. digital
penetration of a child which leaves no injuries but
yet harmful.
• The court’s powerless to intervene to protect
children.
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FGM Lack of Reasonable Parental
Care? In the Affirmative
• Is being subjected to male circumcision
unreasonable? No.
• Society and the law, including the family law, are
prepared to tolerate non-therapeutic circumcision
performed for religious or even for purely cultural
or conventional reasons, while no longer being
willing to tolerate FGM in any of its forms, there
are, after all, at least two important distinctions
between the two. [Para 64 onwards]. “Deep
waters..”.
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FGM - Lack of Reasonable
Parental Care? In the Affirmative
• FGM has no basis in any religion. Male
circumcision is often performed for religious
reasons.
• FGM has no medical justification and confers no
health benefits. Male circumcision is seen by
some [although opinions are divided] as providing
hygienic or prophylactic benefits. Be that as it may,
“reasonable” parenting is treated as permitting
male circumcision. [Paragraph 72].
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Proportionality/Welfare
• No generalisations possible.
• Will depend on the type of FGM in question and
other threshold findings in the case.
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• Complex issue because once FGM inflicted the
evidence given by Professor Creighton that it is
unlikely to be repeated (save for the risk to other
female siblings).
• The girl and boy distinction, the threshold may be
crossed for the girl but not for the boy so how is
the analysis to be undertaken and the balance.
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• Local Authorities and Judges are probably well
advised not to jump too readily to the conclusion
that proven FGM should lead to adoption. [See
paragraph 77].
• Culture not a defence.
• Everything should be done to prevent it.
Nkumbe EKANEY QC
Albion Chambers
Bristol.
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