Blog by Hannah Wyatt of the Garden Court Chambers Family Law Team.
Between April 2015 and March 2024, 37,615 women and girls who had undergone Female Genital Mutilation (FGM) have been seen at NHS services in England, where FGM was relevant to their attendance. Where information about when their FGM took place is known, most of these women and girls were under 18 when they underwent FGM.[1]
Between April 2023 and March 2024, there were 6,655 individual women and girls who had an attendance at NHS Trusts where FGM was identified.[2] It is therefore unsurprising that FGM remains a significant safeguarding concern for girls and continues to be an issue in public law proceedings that the courts must grapple with.
Where there is evidence of a risk of FGM to a child, the Local Authority can apply for an FGM Protection Order (FGMPO) under Section 5A and Part 1 of Schedule 2 of the Female Genital Mutilation Act 2003 to secure the health, safety, and wellbeing of a girl. FGMPOs can include conditions such as prohibiting a person from undertaking FGM on the girl, preventing removal of the girl from the jurisdiction, or applying for a new passport for the girl or a requirement for the girl’s passport to be retained by the social worker.
Is an ICO/removal necessary?
In Re B and G (Children)(No 2) [2015] EWFC 3 at paragraph 75, the President of the Family Division, as he was then, Munby J, stated that no generalisations are possible in terms of the implication of a finding of FGM. “Much will obviously depend upon the particular type of FGM in question, upon the nature and significance of any other ‘threshold’ findings and, more generally, upon a very wide range of welfare issues as they arise in the particular circumstances of the specific case. Arriving at an overall welfare evaluation and identifying the appropriately proportionate outcome is likely to be especially difficult in many FGM cases.”
Whilst this case related to welfare decisions following a fact-finding hearing, a similar thought process can be applied to an ICO/removal hearing. If the court is satisfied that there are reasonable grounds to believe that the girl is likely to suffer significant harm due to a risk of FGM, it will also need to consider what other ‘threshold’ concerns there are, and/or whether removal is proportionate or necessary. It may be that the basis for a Local Authority’s application is due to the risk of FGM alone, and that there has been no previous Children’s Services involvement with the family, and no other significant concerns about the parents’ ability to care for their child.
The court would need to consider all the circumstances, including matters such as:
- The impact of the girl’s separation from her male siblings who would likely remain with their parents as they would not be at risk of FGM.
- The parents ability to be truthful and work with professionals.
- Whether injunctive orders are sufficient to safeguard the child / young person.
- What educative work can be done and attempted with the family.
Munby J made it clear in Re B and G, at para 78, that Local Authorities need to be proactive and vigilant in taking appropriate protective measures to prevent girls being subjected to FGM. The court must not hesitate to use every weapon in its protective arsenal if faced with an actual or anticipated FGM, including the inherent jurisdiction.
Whilst the court must not hesitate to use every weapon in its protective arsenal, it needs to be careful not to jump to the conclusion that removal is the only proportionate and necessary order to make.
FGM Risk Assessments
The court may conclude that a risk assessment is necessary to determine the Local Authority’s application for a Care Order and / or other protective order and / or care plan. This will necessarily be one conducted by an expert in FGM. In one of the first reported FGM cases, Cobb J provided a helpful but not exhaustive list of factors that he considered relevant to the risk of FGM, in the context of a child travelling to Egypt, in the case of Re X (Female Genital Mutilation Protection Order. No.2) [2019] EWHC 1990 (Fam) at paragraph 91. Cobb J described two strands of evidence that should be considered as the “macro-factors” (relating to contextual matters) and “micro factors” (relating to the individual and specific features of a case).
The macro factors included questions regarding:
- The prevalence of FGM in the country (and specific region) to which it is proposed the child will be taken.
- The societal expectations of FGM in the country.
- If FGM is illegal in the country and if it is, how effective the authorities are in enforcing the prohibition of FGM.
- If there is an extradition treaty between the country and the UK, in the event there is evidence of a breach.
- What formal safeguards are available in the country to mitigate the risks.
- At what age girls are commonly cut in the country.
The micro factors included:
- If there is a history of FGM in the child’s wider family.
- If so, on which generations of women has this been perpetrated and specifically what is the position in relation to the younger generation.
- The parents’ (and wider family’s) attitude to FGM generally and in relation to their daughter.
- Is FGM regarded as a woman’s issue or a man’s issue within the family? Where is the power balance in the family?
- What safeguards can the family devise and impose to mitigate the risk?
- How well have the family co-operated with the authorities.
- What is the professional assessment of the family relationships and capabilities of the parents?
- Are there any other specific features of the case which make FGM more or less likely?
As Munby J said in Re B and G, “Arriving at an overall welfare evaluation and identifying the appropriately proportionate outcome is likely to be especially difficult in many FGM cases.” Useful resources for practitioners regarding FGM include Forward UK and the National FGM Centre.
Notes
[1] The NHS FGM annual report published on 19 September 2024
[2] The NHS FGM annual report published on 19 September 2024
