‘FGM’ charges dropped in Dublin and medical ‘expertise’ scrutinised

A landmark ruling in Dublin in July 2024 determined that a couple originally from East Africa would have the ‘FGM’ charges against them dropped for having their daughter undergo it (female circumcision) in 2016.

It’s taken almost eight years for the wheels of justice to turn.

While this sounds horrific it needs to be seen in the context of the FGM moral panic which dominated much of the western world for more than a decade from 2010 onwards.

In the UK which led the way and excelled in moralising, the Serious Crime Act 2015 ushered in a raft of new measures which contributed to a zero-tolerance approach to ‘FGM’. This was aided and abetted by activists, politicians, the media, the public sector, charities etc. ‘FGM’ was said to be rife, propaganda in regard to it mounted, pressure on professionals to search out evidence of it escalated, the police had to find the evidence and the courts to convict.

But communities who had long given up the practice came under the spotlight, were targeted, stigmatised and lived in fear of accusations. I covered this in my Shifting Sands blog.

Guilty verdict

In 2016, a Dublin couple were found guilty for being secondary participants in their home to the procedure on their then almost two year old daughter. They were also convicted for child cruelty. They denied the charges, explaining that she had fallen backwards, nappy-less, on to a toy which cut her vulva, leaving her bleeding heavily, requiring emergency surgical treatment. Medical ‘experts’ disbelieved them.

But on 26 July 2024, the prosecuting counsel told the Dublin Circuit Court that all charges were being dropped by the Director of Public Prosecutions (DPP).

The woman’s representative explained that a new expert report for the DPP agreed with the defence’s medical expert that the child had not undergone FGM. He submitted that a miscarriage of justice certificate should be granted, and that a jury should be formally directed to issue an acquittal.

The man’s representative said an “appalling miscarriage of justice” had occurred, which required acknowledgement from the DPP.

The case was adjourned for mention before a Judge on 25 October 2024 when they should be acquitted?

History

The injury had occurred in the family home on 16 September 2016 to the then almost two year old. The parents took the bleeding girl for emergency care to a Dublin hospital. Medics suspected their explanation for the injury and considered that her clitoral glans may had been removed. FGM Type 1 was suspected. This was later confirmed by a London FGM medical ‘expert’. The case was referred to Tusla (Social Services) and the Gardaí (Police).

A trial was held eventually in November 2019. The couple were found guilty of being secondary participants to FGM – of aiding and abetting, counselling or procuring it on their daughter. The jury were unanimous in finding them guilty. The Gardaí suspected it was carried out by a witch-doctor.

In January 2020 the father was sentenced to five and a half years for ‘FGM’ and three for neglect. The mother received four years and nine months for ‘FGM’ and two years and nine months for neglect. Their sentences were to run concurrently.

But in a Court of Appeal in November 2021, three Justices agreed there had been serious and far-reaching inaccuracies in that trial’s translation process, ruling it unsafe. 

Importantly, at this hearing the medical evidence used to convince the jury was also disputed.

A Swedish consultant obstetrician and gynaecologist who specialises in FGM was able to demonstrate the presence of the girl’s ‘missing’ clitoral glans on a 2019 video. This important piece of evidence had ‘inadvertently’ been withheld from the initial trial by a consultant paediatrician.

But the consultant paediatric surgeon who had provided the initial emergency care disputed the specialist’s findings, explaining that the expected vulval scars caused by ‘FGM’ would not be visible because he had cauterised the wound.

Yet, despite the defence request and the parents wishes, the Court of Appeal refused to order a physical re-examination of the girl, reasoning that a new medical examination of the child was “not warranted” and would cause her further distress. A judge added “It would be a disproportionate intervention in circumstances where she has already been physically examined several times.” He considered the previously withheld video recording of the examination undertaken in 2019 to be of “very good quality,” which could be used by experts for both sides.

The couple’s convictions were quashed and they were released on bail awaiting a retrial. The mother was reunited with her children in homeless accommodation in Dublin.

Retrial

The retrial was held ‘in camera’ during June – July 2024. Interpreters speaking different languages for the mother and the father, were present throughout. I attended for a week as an observer/researcher. And I met the parents then and since.

During my time there, the consultant paediatric surgeon and the consultant paediatrician gave evidence. Their knowledge and ‘expertise’ in regard to genital anatomy, ‘FGM’ and falls was interrogated and found wanting.

The Jury were unable to agree a verdict and were dismissed. But by then eight of the 12 jurors believed the parents not guilty of the charges.

Fourth hearing

A fourth trial was scheduled for 15 January 2024 but was delayed. The parents were adamant their daughter should be examined by a real ‘FGM expert’ before they attended another trial. They remained convinced that medical evidence of ‘FGM’ would not be found.

They were right. At a court hearing during the week beginning 15 July 2024, evidence provided by two actual FGM medical experts confirmed the now almost 10 years old girl had not undergone the procedure. The ruling on 26 July 2024 verified this.

The parents were understandably thrilled and look forward to being acquitted in October 2024, eight years since the child’s accident occurred. They want their lives back.

Lessons to be learnt

When Ireland’s only conviction for FGM is finally dismissed in October 2024 let’s hope it gets the publicity it deserves. The family deserve this in addition to adequate compensation.

Let’s hope that the medics involved will objectively consider their claims to ‘expertise’, the evidence they gave under oath, the decisions they made and their consequences. I identified this as a potential problem in 2019 and asked whether issues of race, religion and ethnicity may have been at play?

The moral panic in regard to FGM may have been the background to the case but that should not cloud objectivity in the search for evidence. I alluded to this when I asked whether Ireland’s first FGM case may have been a straddle injury?

Perhaps it’ll even encourage England and Wales’ Crown Prosecution Service and others to consider what is meant by an ‘FGM expert’ and review convictions based on ‘medical expertise’? I previously questioned this ‘expertise’ here.

Were the Irish court’s sensibilities about upsetting the child misplaced? Had she been expertly examined earlier as the parents wanted, and had the withheld video been available prior to the first trial, this sorry saga may have ended differently and much sooner. The parents told me the child happily underwent the last exam because they had prepared her for it.

England’s first ‘FGM’ conviction in 2019 may also have been a miscarriage of justice. A mother found guilty of cutting her daughter’s genitals was jailed for 11 years. She contended throughout that a straddle injury was caused by the girl falling on to an open cupboard door as she reached for a biscuit above it. But ‘experts’ rejected the explanation. Did they have expertise in ‘FGM’ and falls? The trial was also clouded by suggestions of witchcraft.

England’s second conviction for ‘FGM’ was in 2023. A child had undergone it in Kenya in 2006. But had the trial been held in Scotland the mother may not have been found guilty for her failure to intervene to protect the girl. That because the Scottish Government believes that criminalising failure to protect could potentially impact negatively on individuals, especially women, who do not have the power or agency to protect persons who may be at risk of FGM.

And there is a need to reconsider how FGM is defined and reported – cases currently being recorded by NHS England continue to be mostly consensual, cosmetic, genital piercings in adults. Not in children.

November 2024

The court will consider the case again on November 15th. Now scheduled for December 19th.