FGM armoury to be strengthened irrespective of need

An ‘extraordinary debate about something that we all care passionately’, (FGM) was held in the House of Lords on 20 July 2018. Initiated by Lord Berkeley of Knighton, it recommended that an unintended gap in child protection legislation be rectified.

But evidence of need for the change, apart from legal convenience, was neither offered nor requested, so entrenched is the belief that FGM is a problem in the UK.

The Lords based their support for the change on ‘the illogicality of the family court being able to effectively protect a child at risk of forced marriage or domestic abuse but not protect one at risk of having her genitals mutilated’.

The proposed one-line technical amendment to the Children Act 1989 Section 8(4) would allow judges to make Interim Care Orders (ICOs) when there were reasonable grounds to believe that a child had suffered or was at risk of suffering significant harm. This would ‘add to the armoury of those who hear these cases’. And ‘would considerably extend protection to young girls at greatest risk of genital mutilation’.

Lord Berkeley reassured his colleagues that this would not lead to a flood of ICOs, advising ‘It is rare for judges to make interim care orders using their powers under Section 8(4).’ 

Mr Maddison (a barrister with 18 years experience of working in family law and with the police in Manchester, and who recommended the change to Lord Berkeley) was reported to have seen them less than 12 times in his career, but was convinced that judges should have this tool at their disposal.

The need for the change was rationalised by asserting ‘As FGM becomes more and more visible and people become more and more active in doing something about it, so the change we seek will be more and more necessary.’

Evidence to justify this assertion was neither offered nor requested.

The law against FGM was most recently strengthened with the Serious Crime Act (2015), when the Government introduced a number of legislative measures ‘to help make prosecutions more likely and to protect women and girls at risk’. These included extending extraterritorial jurisdiction to cover offences of FGM committed abroad by habitual, as well as permanent, UK residents; lifelong anonymity for victims of FGM; the creation of a new offence of failing to protect a girl from the risk of FGM; a mandatory duty to report FGM in girls under the age of 18 and the introduction of FGM protection orders – FGMPOs. 

Baroness Vere of Norbiton provided background on the introduction of FGMPOs, the ways in which orders may currently be made, and explained the framework that applies to child protection in England and Wales.

‘FGMPOs were introduced in July 2015 alongside the legislative measures that intended to strengthen the criminal law in this area and to make successful prosecutions more likely. An FGMPO is a civil law measure, designed to protect those at risk of FGM from ever being subjected to the practice. Applications for FGMPOs can be made to the Family or High Court. These Courts can also make an FGMPO of their own volition, as can a criminal court during proceedings for an FGM offence. 

FGMPOs were closely modelled on forced marriage protection orders, introduced in 2007 by means of adding a new Part 4A to the Family Law Act 1996. 

All proceedings under the Family Law Act 1996 are defined in Section 8 of the Children Act 1989 as “family proceedings” for the purpose of the 1989 Act. However, when FGMPOs were introduced the then Government decided to include the relevant provisions in the Female Genital Mutilation Act 2003, rather than in the Family Law Act, so that all the relevant law on FGM would be in one place. 

But, one apparently unintended consequence of that approach was that FGMPO proceedings were not included within the definition of “family proceedings” for the purpose of the Children Act 1989. 

A number of orders can be made to protect children in “family proceedings” under the 1989 Act and the exclusion of FGMPO proceedings from that definition means that, as the law stands, if a local authority applicant for an FGMPO wishes also to apply for, for example, a care or a supervision order, a separate application is required.

Bringing FGMPO proceedings within the definition of “family proceedings” would mean that an application by a local authority or the NSPCC for a care or supervision order relating to a child at risk of significant harm could be made during FGMPO proceedings, thus avoiding the need for a separate application and potential delay. 

Other powers of the family court, including powers to make, for example, a prohibited steps order, special guardianship order or family assistance order, would also be available to the FGMPO proceedings. 

The Government believe that this simplification of process that the Bill intends is sensible and we are pleased to support it. It adds to the measures that the Government have brought forward to tackle FGM issues.

‘The strength of support for the Bill of the noble Lord, from all sides of the House is testament to the unanimous desire to stamp out this barbaric act’.’

Baroness Kennedy of The Shaws while agreeing with the need for the Bill suggested ‘it will make not a huge difference, but it will make some difference.’

FGMPO’s issued

Baroness Vere of Norbiton advised that between July 2015 and March 2018 the courts had made 220 FGMPO’s.

A more detailed analysis of their Lordships views in regard to FGM, as depicted in the discussion about the proposed Bill, will follow separately. It can now be accessed here: The Lords should challenge, not indulge, FGM rhetoric.