What can be learnt from the first FGM case?

What impact will the decision in the first case relating to female genital mutilation (FGM) have on future cases? Felicity Gerry QC, a human rights barrister at 36 Bedford Row specialising in FGM law and child protection issues, discusses the case and the importance of expert evidence.

Original news

Re B and G (Children) (No 2) [2015] EWFC 3, [2015] All ER (D) 99 (Jan)

The local authority's case was that G has been subjected to FGM and that that constituted 'significant harm' within the meaning of the Children Act 1989, s 31 (ChA 1989). The Family Court held that there was insufficient evidence of FGM but that FGM did amount to 'significant harm' for the purposes of ChA 1989, s 31.

What is the significance of this decision?

There are two main points that I think are significant. Firstly, FGM of a child will not automatically lead to adoption and that seems to me to be of most significance. It is logical because FGM generally arises in families where they are otherwise caring and where this is a cultural issue.

Secondly, the ruling underlines the importance of accurate expert evidence in this area. There were three experts, all of whom were criticised to some extent. For my part, that was almost inevitable given the novel nature of the case. It has exposed how little experience in the medical profession there is firstly of FGM amongst children and secondly of giving evidence on it. In addition, the ruling gives very useful guidelines on how experts should give evidence on children's vaginas.

What were the challenges in this case in terms of establishing whether the child had been subjected to FGM?

In this particular case there was a dispute over whether anything had been seen at all and, if it had, what it was--a scar or something else. The challenge was for the court to be able to say, as a matter of fact, that the child had been mutilated. The court concluded there was not enough evidence to prove that the child had been cut. The fact of FGM was denied by the parents and the whole case depended on the expert evidence (and so demonstrated how important the examination of the child is).

By contrast, when children are examined in rape cases a DVD recording is made and the experts can sit down together, look at that evidence, and reach an agreement on it in advance. It was a surprise to me that the experts in this case did not do that beforehand.

That was the challenge: what had actually happened? The judge went through the various types of FGM. In simple terms, sometimes FGM involves significant cutting away of genital parts and sometimes it is less of an injury, and that is where it becomes difficult. If it is a criminal case then, for the purposes of the Female Genital Mutilation Act 2003 (FGMA 2003), the prosecution would have to prove that a person had excised, infibulated, or otherwise mutilated the whole or any part of a girl's labia majora, labia minora or clitoris. As the judge in this case observed:

'The word "mutilation" is not further elaborated or defined in the statute, so I turn to the dictionary. The Oxford English Dictionary defines "mutilation" as meaning "the action of mutilating a person or animal; the severing or maiming of a limb or bodily organ", "mutilate" being defined as meaning "To deprive (a person or animal) of the use of a limb or bodily organ, by dismemberment or otherwise; to cut off or destroy (a limb or organ); to wound severely, inflict violent or disfiguring injury on".'

In other dictionaries, mutilation includes 'damage' so FGMA 2003 is capable of a wider interpretation. However, if the judge in this case is right, there is the potential that children could receive cuts that are not within the definition in the criminal law, although, if proved, could still lead to family proceedings. In some recent research I have done, there was information showing that the cultural practice is being altered in the Asia Pacific, where there are now ceremonies in which children are given what might be described as a 'minor cuts'–although I do not consider them to be minor–but these ceremonies keep within the tradition while avoiding prosecution and they perhaps demonstrate the potential limitation of the criminal law.

How did the court approach the question of whether FGM constituted serious harm under ChA 1989, s 31(2)?

The statutory test under the ChA 1989 is two-fold:

'A court may only make a care order or supervision order if it is satisfied–

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to--

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control.'

This effectively requires an assessment of harm and of reasonable parenting.

The court took the view that any FGM is significant harm in the sense that it is 'appalling', 'intolerable' and 'totally unacceptable'. It did go on to consider the cutting of boys (circumcision) which is often less invasive and concluded that:

'...although both involve significant harm, there is a very clear distinction in family law between FGM and male circumcision. FGM in any form will suffice to establish "threshold" in accordance with section 31 of the Children Act 1989; male circumcision without more will not.'

The court also concluded that while it can 'never be reasonable parenting to inflict any form of FGM', at present, 'society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision' and concluded that 'reasonable' parenting is treated as permitting male circumcision.

What are the practical implications of this decision?

For local authorities it means  they must not automatically go for a care order or an adoption order if a child has been subjected to FGM. We must make sure we instruct suitable experts and collect the evidence properly. It is a good case to send the message that local authorities should be investigating this more often but obviously investigating this properly and not having a knee-jerk reaction, because largely, the parents that carry it out are loving parents but they are caught in this patriarchal tradition.

For my part, it perhaps sheds light on how useful the recommendations we made on behalf of the Bar Human Rights Committee were in relation to protective orders to enable local authorities to restrain parents from arranging FGM for their children, rather than intervene after the event.

How does this case build on the developing case law around FGM and the role of local authorities?

It's the first of what will probably be a lot more of cases which finally identify that children in England and Wales are being cut and that local authorities do need to deal with it as child abuse, which they have not done before. It has largely been ignored as a result of cultural relativism (ie 'that is their culture and we will not treat it as child abuse').

It is a good thing because it demonstrates that local authorities are treating FGM as child abuse and hopefully such cases will send a clear message to communities to end an abusive tradition. Ultimately, crime prevention is always better than court proceedings.

Interviewed by Jon Robins.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.