Female Genital Mutilation Legal Guidance
- Definition of Female Genital Mutilation
- Female Genital Mutilation - sources of information
- Legislation on Female Genital Mutilation
- Violence Against Women Strategy and Female genital mutilation
- Evidential Considerations
- Public Interest Considerations
- Annex A: Contact details for national support agencies and sources of information relating to FGM
- Annex B: Further information on FGM
- Annex C: Aide memoire: Offence/Behaviours experienced by victims of FGM
Definition of Female Genital Mutilation
Female Genital Mutilation (FGM) is a collective term for a range of procedures which involve partial or total removal of the external female genitalia for non-medical reasons. It is sometimes referred to as female circumcision, or female genital cutting. The names FGM or cut are increasingly used at the community level, although they are still not always understood by individuals in practicing communities, largely because they are English terms. Other terms for FGM include the Somali 'Gudnin' and the Sudanese 'Tahur'.
Female Genital Mutilation - sources of information
There are no statutory guidelines on Female Genital Mutilation (FGM). Guidance, however, can be found in the Multi-Agency Practice Guidelines on FGM, which have been produced to assist and inform frontline professionals who have responsibilities to safeguard children and protect adults from the abuses associated with FGM. These responsibilities include reporting any female who appears to have signs of having had FGM.
Prosecutors should make themselves aware of the guidelines which can be accessed on the Foreign and Commonwealth Office and Department of Health websites.
Contact details for national support agencies and sources of information can be found at Annex A.
For further information about FGM refer to Annex B.
Legislation on Female Genital Mutilation
Prohibition of Female Circumcision Act 1985
Female Genital Mutilation (FGM) has been a specific criminal offence since 1985, with the introduction of the Prohibition of Female Circumcision Act 1985. However a 'loophole' was identified in the legislation, in that taking girls who were settled in the UK abroad for FGM was not a criminal offence. It is this 'loophole' that the Female Genital Mutilation Act 2003 ('the Act') intended to close.
Female Genital Mutilation Act 2003
The Act was brought into force on 3 March 2004 by the Female Genital Mutilation Act 2003 (Commencement) Order 2004. The provisions of the Act only apply to offences committed on or after the date of commencement. For offences committed before 3 March 2004 the Prohibition of Female Circumcision 1985, as re-enacted in the Female Genital Mutilation Act 2003, continues to apply.
The Act affirms that it is illegal for FGM to be performed, and that it is also an offence for UK nationals or permanent UK residents to carry out, or aid, abet, counsel or procure the carrying out of FGM abroad on a UK national or permanent UK resident, even in countries where the practice is legal.
Offence of female genital mutilation
The Act refers to "girls", though it also applies to women.
The Act contains the following offences, including an offence of performing the act of FGM on a UK national or permanent UK resident overseas. The offences are:
- Section 1 - it is a criminal offence to excise, infibulate, or otherwise mutilate the whole or any part of a girl's labia majora, labia minora or clitoris;
- Section 2 - a person is guilty of an offence if he aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris;
- Section 3 - it is an offence for a person to aid, abets, counsel or procures the performance outside the UK of a relevant FGM operation;
- Section 4 - extends the offences outlined in sections 1-3 to any act done outside the UK by a UK national or permanent UK resident, and where an offence is committed outside the UK, even in countries where the practice is legal, treats the offence as having been committed anywhere in England, Wales or Northern Ireland.
Defence
No offence is committed by a registered medical practitioner who performs a surgical operation necessary for a girl's physical or mental health. Nor is an offence committed by a registered midwife or a person undergoing a course of training with a view to becoming a registered medical practitioner or registered midwife, but only if the operation is on a girl who is in any stage of labour, or has just given birth, and is for purposes connected with the labour or birth (see section 1 of the Act).
This applies if the surgical operation is carried out:
- in the UK; or
- outside the UK, by persons exercising functions corresponding to those of a UK approved person.
Section 1(5) makes it clear that in assessing a girl's mental health, no account is taken of any belief that the operation is needed as a matter of custom or ritual. An FGM operation, therefore, could not legally occur on the ground that a girl's mental health would suffer if she did not conform to the prevailing custom of her community.
There is no fixed procedure for determining whether a person carrying out an FGM operation outside the UK is an overseas equivalent of a medical practitioner etc for the purpose of subsection (4). If a prosecution is brought, this will be a matter for the courts (in the UK) to determine on the facts of the case.
Assisting a girl to mutilate her own genitalia
It is not an offence for a girl to carry out an FGM operation on herself. However, a person is guilty of an offence if he aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris (see section 2 of the Act).
Assisting a non-UK person to mutilate overseas a girls genitalia
Section 3 of the Act makes it an offence for a person to aid, abet, counsel or procure the performance outside the UK of a relevant FGM operation (as defined by subsection (2)) that is carried out on a UK national or permanent UK resident by a person who is not a UK national or permanent UK resident (as defined by section 6).
So the person who, for example, arranges by telephone from his/her home in England for his/her UK national daughter to have an FGM operation carried out abroad by a foreign national (who does not live permanently in the UK) is guilty of an offence.
The exception for necessary surgical operations that applies for the purposes of section 1 of the Act also applies to section 3.
Extra-territorial acts
The effect of the extension (see section 4) on section 1 is that it will be an offence for a UK national or permanent UK resident to carry out an FGM operation outside the UK. By virtue of section 8 of the Accessories and Abettors Act 1861, it will also be an offence for a person in the UK (or a UK national or permanent UK resident outside the UK) to aid, abet, etc a UK national or permanent UK resident to carry out an FGM operation outside the UK. For example, if a person in the UK advises his UK national brother over the telephone how to carry out an FGM operation abroad, he would commit an offence.
The effect of the extension of section 2 is that it will be an offence for a UK national or permanent UK resident outside the UK to aid, abet etc. a person of any nationality to carry out an FGM operation on herself wherever it is carried out.
The effect of the extension of section 3 is that it will be an offence for a UK national or permanent UK resident outside the UK to aid, abet etc. a foreign national (who is not a permanent UK resident) to carry out an FGM operation outside the UK on a UK national or permanent UK resident. For example, a permanent UK resident who takes his permanent UK resident daughter to the doctor's surgery in another country so that an FGM operation can be carried out will commit an offence.
Penalties for offences
A person guilty of an offence under this Act is liable:
- on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both);
- on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both).
See Section 5 of the Act.
Definitions of Girl and UK National
The term "girl" includes "woman".
A United Kingdom national is an individual who is:
(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;
(b) a person who under the British Nationality Act 1981 is a British subject; or
(c) a British protected person within the meaning of that Act.
A permanent United Kingdom resident is an individual who is settled in the United Kingdom (within the meaning of the Immigration Act 1971).
Violence Against Women Strategy and Female Genital Mutilation
The CPS Violence Against Women and Girls Strategy provides an overarching framework for crimes that have been identified as primarily being committed by men, against women, within a context of power and control.
Female Genital Mutilation (FGM) is recognised internationally as a clear form of violence against women and girls. It reflects deep-rooted inequality between the sexes, and constitutes an extreme form of discrimination against women. It is not necessarily an offence committed by men on women, as women also commit the offence. However, it is regularly carried out on minors and is a violation of the rights of children. The practice also violates a person's rights to health, security and physical integrity, the right to be free from torture and cruel, inhuman or degrading treatment, and the right to life when the procedure results in death.
FGM prosecutions should therefore be addressed within an overall framework of violence against women and an overall human rights framework. Where appropriate, prosecutors should make links with other topics such as domestic violence, rape and sexual offences, honour crimes, forced marriage, child abuse, crimes against the older person, pornography, human trafficking and prostitution.
Prosecutors should recognise the diversity of victims. Victims' experiences of FGM are undoubtedly affected by identities distinct from gender, like their ethnicity, age, sexuality, disability, immigration status and religion or belief. Each victim's individual experiences of violence will be different, and some victims may encounter additional barriers to accessing justice. For example, a young woman forced into agreeing to these procedures may find it difficult to report domestic violence because she fears she will not be taken seriously as a result of her age. The safety and needs of each victim should be assessed on an individual basis.
Charging in Female Genital Mutilation cases
The prosecution of FGM cases is a serious matter. This practice causes serious harm and, as a result, the FGM Act increased the maximum penalty from 5 to 14 years' imprisonment.
Cases involving FGM where possible should be referred to VAW Coordinators given their experience and knowledge in dealing with victim support. (Contact the Equality and Diversity Unit in CPS Headquarters for your local VAW coordinator.)
The Female Genital Mutilation Act (the Act) makes it clear that it is an offence for anyone (regardless of their nationality and residence status) to perform FGM in the UK, or to assist a girl to perform FGM on herself in the UK. Provided that the mutilation takes place in the UK, the nationality or residence status of the victim is irrelevant.
However, there may be circumstances when the nationality of residence of the victim is relevant and it may be difficult to apply the Act. Prosecutors should remember that in cases where it is not possible to apply the Act, they should consider the full ambit of charging. Assault, conspiracy and child cruelty are just some example of charges that can arise in these circumstances.
Prosecutors should be aware, when dealing with a case of FGM, that the victim may not just be a victim of FGM. The victim may also have been subjected to rape and other sexual offences, or may have been subject to a forced marriage. The victim may be under 18, and may also be a victim of ill treatment.
Monitoring and Evaluating Cases
Strategy and Policy Directorate (SPD) will be monitoring and evaluating FGM cases. Areas are requested to alert SPD of all FGM cases.
Please send together with the CMS reference the following:
- a synopsis of the evidence prepared by the reviewing lawyer;
- a copy of the MG3; and
- an endorsement of the proposed course of action from the reviewing lawyer,
to the Policy Helpdesk at HQpolicy@cps.gsi.gov.uk.
Evidential considerations
When reviewing a FGM case, Prosecutors should consider the following:
Social Services / Local Authority Evidence
Prosecutors should be aware that where there is a young victim of Female Genital Mutilation (FGM), the local authority or social services are likely to have material or information which might be relevant to the prosecution case. In such cases, if the material or information might reasonably be considered capable of undermining the prosecution case or of assisting the defence, prosecutors are asked to take steps they regard as appropriate to obtain it. Good practice is to request the material and if it fails, apply to the Court. For further guidance see A Protocol between the CPS, Police and Local Authorities in the exchange of information in the investigation and prosecution of child abuse cases.
Expert Evidence
Prosecutors should consider the need for and use of an expert witness, for example, a medical professional specialising in wound healing and scar tissue. Guidance on the obligations placed upon expert witnesses can be found in the Guidance Booklet for Experts. A list of medical professionals and clinics likely to encounter FGM can be found in Annex C of the Multi-Agency Practice Guidelines on FGM.
International Evidence
Where there is evidence of FGM, prosecutors should ask the police to investigate if a victim was taken out of the country. Evidence may come from passports and/or flight records.
When evidence is required from abroad prosecutors should refer to International Enquiries, elsewhere in the legal guidance.
Reluctant Victims
FGM cases are difficult to prosecute for a number of reasons, but primarily because of difficulties in obtaining evidence where a complaint is made, and maintaining continued cooperation with the victim.
Where before trial the victim indicates that she no longer wish to give evidence, the prosecutor will first consider whether it is possible for the prosecution to continue without the victim. At the same time, the prosecutor will instruct the police to take a statement setting out why the victim does not any longer wish to give evidence. The key issue is whether the decision to withdraw support from the prosecution is voluntary or as a result of pressure being brought to bear on the victim.
Prosecutors must ensure that the complainant is aware of the special measures that can be applied for at court to provide a more secure environment in which the complainant may give their evidence.
Ultimately, prosecutors must ensure that the standards of witness and complainant care as set out in the Victim's Code and Prosecutors' Pledge are adhered to.
Other Evidential Considerations
Prosecutors should also bear in mind the following:
- Is the victim likely to give evidence? Victims are often reluctant to make a statement or, if they do, often retract because of family and cultural pressure;
- Ensure that early consultation with the police takes place as it is vital, particularly in indicating the willingness of a victim to testify at the trial;
- What form of evidence is available from the victim? If an ABE Video is available, additional information from the interview process will enable a risk assessment to be conducted as to the risk to any other siblings.
- What other evidence is available? Consider if other family members, close friends, general practitioner and school authorities can assist;
- Ensure special measures applications are made in time.
Prosecutors are reminded of the guidance on Provision of Therapy for Child Witnesses Prior to a Criminal Trial.
Public Interest Consideration
In cases of FGM, if the evidential stage is passed and the victim is willing to give evidence, it is likely that the public interest will require a prosecution to take place but each case should be determined in its own merits. When considering the public interest stage of the Full Code Test, one of the factors that prosecutors should always take into account is the consequences for the victim of the decision whether or not to prosecute; and any views expressed by the victim. Prosecutors should ask the police to provide information about family circumstances and the likely effect of a prosecution on the victim. Social services and specialist FGM support agencies may be able to help by providing the police with this type of information, if they are or have been involved.
Annex A: Contact details for national support agencies and sources of information relating to FGM
Metropolitan Police
Child Abuse Investigation Command/Project Azure
Telephone: 020 7161 2888
Metropolitan Police - Project Azure
London Safeguarding Children Board
59 Southwark Street
London SE1 0AL
Telephone: 020 7934 9683
London Safeguarding Children Board - FGM resource pack
Child Protection Helpline
Telephone: 0808 800 5000 (advice for adults worried about a child)
Foundation for Womens' Health Research & Development (FORWARD)
Telephone: 020 8960 4000
FORWARD website
National Society for the Prevention of Cruelty to Children (NSPCC)
Telephone: 0808 800 5000
NSPCC website
Childline
Telephone: 0800 1111 (24 hr free helpline for children)
Childline website
FGM National Clinical Group
Foreign and Commonwealth Office
Telephone: 020 7008 1500
fgm@fco.gov.uk
Annex B: Further information on Female Genital Mutilation
Background
Female Genital Mutilation (FGM) involves procedures, which include the partial or total removal of the external female genital organs for cultural or other non-therapeutic reasons. The practice is medically unnecessary, extremely painful and has serious health consequences, both at the time when the mutilation is carried out, and in later life. It can also be psychologically damaging.
Age and procedure
The procedure is typically performed on girls aged between 5 and 8, but in some cases, FGM is performed on newborn infants or on young women prior to marriage or pregnancy. Many of the victims are therefore young and vulnerable. A number of girls die as a direct result of the procedure, from blood loss or infection. In the longer term, women who have undergone some form of FGM are twice as likely to die in childbirth, and four times more likely to give birth to a stillborn child.
FGM is usually carried out by the older women in a practicing community, for whom it is a way of gaining prestige and, in some communities, can be a lucrative source of income.
The arrangements for the procedure usually include the child being held down on the floor by several women and the procedure carried out without medical expertise, attention to hygiene and anaesthesia. The instruments used include unsterilised household knives, razor blades, broken glass and sharpened stones. In addition, the child is subjected to the procedure unexpectedly.
High Risk
There are no health benefits to a victim who undergoes a FGM procedure, and it harms girls and women in a number of ways. The different types of FGM as described above involve removing and damaging healthy and normal female genital tissue, and interferes with the natural functions of girls' and women's bodies.
Immediate complications can include severe pain, shock, haemorrhage (bleeding), tetanus or sepsis (bacterial infection), urine retention, open sores in the genital region and injury to nearby genital tissue.
Further the long-term effects can include:
- recurrent bladder and urinary tract infections;
- cysts;
- infertility;
- an increased risk of childbirth complications and newborn deaths;
- the need for later surgeries. For example, the FGM procedure that seals or narrows a vaginal opening (type 3 above) needs to be cut open later to allow for sexual intercourse and childbirth. Sometimes it is stitched again several times, including after childbirth, hence the woman goes through repeated opening and closing procedures. Under FGM Act it is an offence for any medical professional (or anyone, for that matter) to reinfibulate or close a woman after she has been defibulated during labour for childbirth.
Cultural, religious and social causes
The reasons why FGM occurs are varied. The justification for the practice is often cited as custom or tradition and FGM is often seen not as an abuse but as an initiation into adulthood. Some individuals and families who support the practice of FGM often see this as a natural and beneficial practice by a loving family who believe that it is in the girl's or woman's best interests. This may limit a girl's incentive to come forward to raise concerns or talk openly about FGM - reinforcing the need for all professionals to be aware of the issues and risks of FGM.
In patriarchal communities, FGM is considered essential for marriage, and without marriage a woman's honour and even survival maybe be compromised. FGM is used as a means of controlling and de-sexualising women, and repressing sexual desire. Those who practise these procedures believe it will reduce the chances of promiscuity in marriage on the part of the women.
There are no cultural or traditional reasons why the practice should be accepted. It is not a religious practice and the leaders of all major religions have condemned the practice as unnecessary and harmful. However, any action which is being contemplated must be proportionate and sensitive to the cultural norms and pressures on parents and children. Action should be taken in close collaboration with other members of the Local Safeguarding Boards.
FGM is much more common than most people realise, both worldwide and in the UK. Most of the women and girls affected live in Africa, although some live in the Middle East and Asia. However, those who have undergone, or are at risk of undergoing, FGM are increasingly found in Western Europe and other developed countries, primarily among immigrant and refugee communities.
It is estimated that 100 to 140 million girls and women worldwide are currently living with the consequences of FGM. A recent study based on 2001 census data suggested that over 20,000 girls under the age of 15 could be at high risk of FGM in England and Wales each year and nearly 66,000 women in England and Wales are living with the consequences of FGM. It is possible that, due to population growth and immigration from practising countries since 2001, FGM is significantly more prevalent than these figures suggest.
The age at which FGM is carried out can take place at any time between birth and the labour of the first child. This depends on the community or individual family. There is compelling evidence from the World Health Organisation (WHO) that the age is falling and the practise is becoming less tightly linked to puberty rights and initiation into adulthood.
Annex C: Aide memoire: Offence/Behaviours experienced by victims of FGM
Download a copy of an aide-memoire on the offences/behaviours experienced by victims of FGM.
