Family Solicitors

Commonly known as FGM, female genital mutilation is the term given to all procedures which involve the partial or total removal of the external female genitalia, or any other injury to female genitalia for non-medical reasons. When it was first criminalised in the UK in 1985, it was referred to as ‘female circumcision’ which is neutral in its connotations and equivalence to male circumcision. In order to reflect that it is an abhorrent act of violence, female genital mutilation is the preferred term.

In 1993, the UN world conference on Human Rights in Vienna marked FGM as a human rights violation and a form of violence against women.

In Fornah v Secretary of State for the Home Department [2006] UKHL 46, Baroness Hale recognised the act as amounting to “torture or other cruel, inhuman or degrading treatment within the meaning of Article 3 of the European Convention of Human Rights.”


Prevalence and detection

A UNICEF report estimated that over 200 million women and girls alive today have been cut in 30 countries in Africa, the Middle East and Asia, making FGM a global concern. UNICEF estimates that 137,000 women and girls in England and Wales are affected by FGM, however the likelihood is that this number is much higher.

Although Section 5B of the FGM Act 2003 requires healthcare professionals and teachers to notify the police if it appears FGM has been undertaken on a girl who is under 18, these safeguards are circumvented when FGM is carried out on a much younger child who is not in school and who may not necessarily remember being subjected to FGM. The World Health Organisation (WHO) classified four types of FGM in severity of removal, sealing, pricking, piercing or scraping the female genitals, and experts suggest that in order to evade the detection of authorities, FGM is carried out in its least severe, but no less inhumane forms. Community engagement is therefore all the more important in tackling this silenced issue.

Ravi Kaur Mahey, Solicitor-Advocate and Director in the Child Care and Family Department at Duncan Lewis Solicitors, highlights the importance of community engagement:

“The cultural aspect of FGM cannot be dismissed. The familial pressure that exists in these cases must be addressed directly with the communities in which it is a cultural norm to undergo FGM. Cultural norms can be broken through groundwork and re-education, but this must be provided for through higher investment. Charities will come under pressure as they do not have the resources.”


Legal development

FGM has been criminalised for 36 years now, yet we saw the first and – to-date – only FGM conviction in 2019. This is pursuant to the FGM Act 2003, which increased the maximum penalty from five to 14 years’ imprisonment and extended jurisdiction to FGM which is undertaken overseas.
In 2015, a major development was seen for FGM in the family jurisdiction. The Serious Crimes Act 2015 amended the FGM act 2003 to introduce section 5A and Schedule 2. This provides the family court the authority to impose the civil remedy of an ‘FGM protection order,’ also known as an ‘FGMPO.’ An FGMPO is ordered for the purposes of protecting a girl against the commission of FGM, or protecting a girl against whom any such offence has been committed. In deciding whether to exercise its powers to make an order, the court must have regard to all of the circumstances, including the need to secure the health, safety and well-being of the girl to be protected. Substantial hearings therefore assess risk to the child, make findings and consider the extent of the protection required. In regards to the assessment of risk, the first FGMPO case that was heard by the Court of Appeal was Re X (A Child) (FGMPO) [2018] EWCA Civ 1825, which Ravi Kaur Mahey instructed on, and Re X (FGMPO No.2) [2019] EWHC 1990 (Fam).

This case set out that there are ‘macro’ and ‘micro’ factors that the court is to consider. ‘Macro’ factors involve the likelihood of FGM contextually, such as the prevalence of FGM in the country, the societal expectation of FGM and the effectiveness of local law enforcement agencies. Individual ‘micro’ factors pertain to the particular case and to the subject child or children and family, including their own personal attitudes towards FGM and whether there is a history of FGM within the child’s wider family.

Furthermore, according to Schedule 2 paragraphs 3 and 4 of the FGM Act 2003, FGMPOs may contain prohibitions, restrictions or requirements, and relate to conduct both within and outside of England and Wales. This means that the family court has the power to restrict travel in the interests of protecting the child from the risk of FGM. The family court can impose a ‘travel ban’ for a specified period of years, often until the child is 16. This has caused implications in two key cases - Re X [2018] and its rehearing in [2019] and the case of Re A (A Child: FGM: Asylum) [2019] EWHC 2475 (Fam) and its appeal A (A Child) [2020] EWCA Civ 731. Both cases relate to the power of the court to restrict travel in completely different ways.


a) Re X: Human Rights Implications

Firstly, in Re X [2018], the father appealed the ‘worldwide travel ban’ that was ordered until 2032. As an Egyptian national, the father had been refused a ‘visit visa’ and was developing a relationship with his two-year-old daughter through electronic means. The father’s main ground of appeal was that the absolute travel ban was not necessary or proportionate to the risk of FGM to the child, which unnecessarily and unreasonably interfered with the family’s article 8 rights. Lord Justice Moylan quoted Justice Hayden’s words in the case of A Local Authority v M & N, that ‘whilst there can be no derogation from N’s article 3 rights, the interference with her article 8 rights must be limited to that which is necessary to protect her article 3 rights.’ Lord Justice Moylan went on to accept that the judgment in Re X had not explained why the travel ban was a proportionate order and why another, less intrusive order would have sufficiently protected X from FGM, ordering a rehearing. The rehearing saw Justice Cobb conclude that the risk was sufficiently significant, as the incidence of FGM is 92% in Egypt. However, he emphasised that risk assessment is an ongoing process, as risk may well shift and is dynamic. He was satisfied that sufficient safeguards could be put in place to allow for the child to have a short and carefully managed trip to Egypt that year, as an exception to the general travel ban.


b) Re A: The Family Court versus the Immigration Tribunals - who prevails?

The second case of Re A [2019] was heard by the President of the Family Division, Sir Andrew McFarlane. An FGMPO had been ordered which prevented the child and her mother from leaving the jurisdiction of England and Wales. However, her mother, of Sudanese origin, applied for asylum and had been rejected by the Home Office, and her appeal rights to the First Tier Tribunal and Upper Tribunal had been exhausted. The President said it is within the family court’s powers to make FGMPOs to those with insecure immigration status. However, the issue in this case was whether the family court had the power to prohibit removal or deportation, frustrating the intention of the Home Office and Immigration Tribunals.

Both the Home Office and the family court assess risk of FGM, but for different purposes and in different ways. The Home Office assess risk of FGM in the context of their decision to accept asylum or deport the individual and subject them to that risk.
The family court assess risk of FGM in considering whether the court should exercise its power to issue an FGMPO in the interests of the welfare of the child.

The President held that the family court does not have the power to issue an injunction to the Secretary of State in her decisions with respect to the regulation of immigration and asylum. The President discharged the injunction and replaced it with a request that the Home Secretary reconsider the immigration determination in light of any risk assessment undertaken by the family court.

This essentially means that where the family court has found there to be a risk of FGM, the immigration tribunal may not necessarily agree, and proceed to deport that same individual. The Home Secretary still appealed the case in 2020, as the President was unable to accept that the immigration tribunal’s risk assessment could be the default or starting point of a risk assessment in the family court. This appeal was dismissed, as Sir Ernest Ryder held that the context and nature of the two decision making processes are different. The young person in the family court for an FGMPO is separately represented, she has her own voice and her interests are of primary and paramount consideration. The young person in an immigration tribunal does not make her own asylum case. This demonstrates tensions between the family court and immigration controls, as they may not agree on the risk of FGM in question.


The way forward

In terms of moving forward, we may look to the French system, which has over 100 FGM convictions, whereas the UK only have one conviction to date. The fact that there has only been one conviction after 36 years of legislation that bans FGM in the UK may deter people from making complaints and seeking protection. However, the French system involves all children having regular genital checks by medical professionals until the age of six, which can be deemed overly intrusive for young children.

Ravi Kaur Mahey asserts that the “law in England and Wales is adequate and proportionate in providing protection from FGM. It encompasses travel bans and the civil ambit to the criminal offence. The focus must therefore be on groundwork and re-education in tackling the issue.”

It is important that action is purely evidence based, as a Bristol study in 2019 found that the Somali community feels stigmatised and subject to traumatic questioning. It is important that FGM is considered under the umbrella of violence against women, as all violence is unacceptable, rather than a specifically unacceptable cultural practice.

Lastly, higher investment and resources in providing services to engage with communities on a ground roots level is required.


Authors, legal casework assistant Safia Yousaf and director Ravi Kaur Mahey work in the family and child care department at Duncan Lewis Solicitors.

Contact Safia on 02031141318 or at safiay@duncanlewis.com

Contact Ravi on 02031141102 or at ravim@duncanlewis.com