FGM Protection Orders: A Case Study

Ben Clulee Senior Associate Solicitor with Family Law Group gives his recent experience of representing a client of Gambian origin on an application made by a local authority for a Female Genital Mutilation (FGM) Protection Order within the Family Court.

In a recent case, Family Law Group has represented the mother of a young female child on an application made by a local authority for an FGM Protection Order. This was one of the first such applications made by any Local authority within the East Midlands since the implementation of new legislation in August 2015.

The application concerned a 5 year old girl, B. She resides with her parents and 10 year old brother, A. Both parents are Gambian nationals who remain within the United Kingdom under the Home Office’s Discretionary Leave Outside of the Rules (LOTR). The children were born in the United Kingdom but are not British citizens and do not have leave to remain indefinitely. Under the LOTR criteria both parents and the children must apply every 2 years for an extension to remain in the UK.

The Law

The application made by the local authority is provided for within Part 1 of Schedule 2 of the Female Genital Mutilation Act 2003. Schedule 2 is inserted by way of the provisions of s.73 of the Serious Crime Act 2015 which came into force on 1^st August 2015. S.73 amended the 2003 Act by way of creating the civil remedy of an FGM Prevention Order.  This order can be applied for by either the State or an individual.

The purpose of the legislation was to enable the court to be able to make orders protecting a girl against the commission of a genital mutilation offence, or protecting a girl against whom such an offence had already been committed.

Schedule 2 allows a court to make such prohibitions, restrictions or requirements and such other terms as the court considers appropriate for the purpose of the order. As it sounds, this is a very wide reaching use of powers, akin to those often exercised in the court’s Inherit Jurisdiction.

The terms of the order can also relate to conduct outside the United Kingdom. The order can be made for a specified period or until it is varied or discharged.

A breach of any FGM Prevention Order then becomes an indictable only criminal offence pursuant to the 2015 Act, which carries five years imprisonment upon conviction, fine or both.

Procedurally, the application is governed by the Family Procedure Rules 2010 and so Rule 16 applies to the representation of children within FGM Prevention Order cases, and Part 25 applies to the use of experts.

B’s case

In the circumstances of this particular case a without notice order was initially made in early December 2015. The application was made after B’s mother had informed her school that the family were to travel to Gambia over Christmas. It transpires that many schools are now advised to be alert to young female children being taken out of the country to West Africa for prolonged periods of time. A school safeguarding officer therefore alerted Children’s Services.

Upon initial investigation the Local Authority discovered that the Father’s family were members of a particular tribe, who historically practiced FGM and were said to continue this practice today. The Mother, in contrast, was a member of a different tribe which traditionally forbids FGM. The parents protested that they found FGM abhorrent and that they had in fact already travelled to Gambia as a family in 2014 without incident. They were asked to consent to a medical examination of B in which they agreed and no evidence of FGM was found.  

However, their engagement with Social Care was described as hostile and defensive and concluded that there were some inconsistencies in their accounts as to the purpose of their travel to Gambia. An order was therefore applied for, and granted, without notice some two weeks prior to the intended date of travel.

The without notice order specified that B’s passport should be surrendered and that she should not be removed from the UK for any purpose. It further stipulated that FGM should not be performed upon B. Family Law Group became instructed for the subsequent return hearing, listed some two days before the intended travel dates. The process is therefore entirely similar to injunction applications under Part IV Family Law Act 1996.

On the return date, it became clear that a contested hearing was needed and due to court availability, this took us past the intended travel dates in any event.

The parents case rested on a cultural mis-understanding of the practice of FGM on the part of the Applicant Local Authority. Their case was that FGM became unlawful within Gambia on 1^st November 2015 but, in any event, the mother, and therefore B were members of a tribe that do not condone FGM. Furthermore, although Father is a from a different tribe, which does practice FGM, the parents assert that as EU residents earning British wages they are placed on a higher social footing when they return to Gambia. This means that no Gambian resident would dare perform this procedure upon a child who was from B’s background.

Perhaps understandably, Children’s Services had little prior knowledge or experience of the practice of FGM in West Africa. They were therefore not in a position to accept the parents’ accounts of the reality of there being a very low to nil risk of FGM or comment on the cultural practices of FGM in the Gambia.

It was agreed that an expert should be instructed to report on the cultural aspects of FGM within Gambia.

Sourcing an expert proved to be very difficult. The starting point was the Oriental School of African Studies (OSAS) at the City University of London as academics had provided a number of similar reports on West African parenting. The academics that were approached and who were widely known to specialise in this area were unavailable at this time.  

Eventually we identified a Professor at the Max Planck Institute at Halle University, Germany whose academic interests focussed on social and cultural practices across the Upper East Guinea coast.

The expert’s report opined that there remains a real risk of FGM to women and young female children in Gambia. From her research, she was satisfied that even EU residents returning to Gambia for holidays could be at risk owing to a feeling amongst Gambian people that an uncircumcised child can affect the social standing of the rest of her tribe and community. It was the expert’s evidence in this case that an FGM Protection Order was still required throughout the child’s minority.

The live issue that remained of course was that of B’s passport being retained by the Local Authority. This had huge implications for B’s right to free movement, right to family life and life opportunities by way of her being prevented from leaving the country at any stage during her minority.

Fortunately, agreement was reached at the Final Hearing that allowed for B to maintain the possibility of travel and access to her passport upon certain conditions being met. Whilst still restrictive this enabled our client to ensure that her daughter’s life chances and opportunities were not too greatly affected whilst enabling the court to be satisfied that the child would be kept safe from significant harm.

In 2011, OSAS estimated that 137,000 girls and women were affected by FGM within the UK. It is a growth area in Care proceedings where the President has given guidance in Re B and G (Children) (No.2); sub nom Leeds City Council v M, F, B, G (B and G by their Children’s Guardian) 2015 EWFC 3 as to the World Health Organisations classification for FGM and the proper process, conduct and recordings of intimate examinations. However, the new legislation enables action to be taken outside of the public law arena by individuals as well as local authorities. It is likely to become an area of Family law that practitioners will need to become more familiar with over the coming years.

It is a simple point to make, but given this is such a new area for all professionals concerned, the only starting point is to ensure a cultural expert is instructed.  So many of the issues in an FGM case appear to be cultural, and differ amongst the various tribes and areas in Africa. There are differing types of FGM, all of which can cause serious long term clinical and psychological damage to children.

However, in this particular matter it was our client’s case that the practice is not now widespread, that it is illegal across most parts of Africa, which reduces the risk that has been there historically. This is not a view currently shared by the Foreign Office. Without expert evidence before the court, it will probably be difficult for any Judge to feel informed sufficiently about the cultural nuances to discharge an order or dismiss an application when Children’s Services, in particular, are the applicant.