Has Ireland’s Zero Tolerance for FGM approach delayed justice for innocent parents?

The Dublin couple whose landmark conviction for the genital mutilation (FGM) of their 21 month old daughter was quashed by the Court of Appeal in November 2021, have finally – four years later, had their application to have their case declared a miscarriage of justice heard 22-23 January 2026. Presiding were Mr Justice John Edwards, Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy.

That it has taken almost ten years to get this far takes the international zero tolerance to FGM approach to which Ireland subscribes to a whole new level of intolerance.

The child’s father was represented by Hugh Hartnett, Senior Counsel (SC) and the mother by Giollaíosa Ó Lideadha SC. They asked the court to declare the FGM conviction a miscarriage of justice and to grant the couple a certificate to that effect.

Getting a certificate is important to the innocent couple. It would mean acknowledgement by the state of wrongdoing, clear their legal and practical record, grant them access to support and advocacy as well as public and reputational rehabilitation. Importantly, it would also mean access to compensation for loss of liberty, loss of earnings, career damage and psychological harm.

Because they e.g. lost their property when convicted they have had to live in homeless accommodation since their release from prison, have had their passports removed, have lived with the stigma, feeling ostracised etc.

Brendan Grehan SC represented the Director of Public Prosecutions (DPP) who is opposing the application for a certificate. Before issuing a miscarriage of justice certificate, the Court of Appeal has to be satisfied that new evidence proves, on the balance of probabilities, that the couple is innocent.

He offered that the issue in the trial was simply a difference of opinion between medical experts – that the DPP had acted in good faith at all times and any review of the evidence would show there was a “full credible case for the bringing of charges”.

At the end of the two day appeal hearing the Justices agreed they had a lot to think about and reserved their decision. They will deliver their verdict at a later date.

The moral panic in regard to FGM and the wider context in which the zero tolerance to FGM approach sits, was not alluded to in the appeal hearing. But the fallout probably informed the views of the initial medical ‘experts’, leading to the wrong diagnosis and resultant convictions of the parents.

The widely upheld “zero tolerance for FGM” approach is problematic and wrong. Tolerance is crucial for freedom of speech, freedom of belief and freedom of conscience. These are the cornerstones of a democratic society which I would expect the Irish state to uphold.

Below are my bullet point justifications for a zero tolerance of a zero tolerance for FGM approach. I first delivered them in a keynote address to a Sheffield conference 5 February 2023.

• Tolerance is a principle of a democratic society, one of the things that binds people of different backgrounds together. It’s been a British value since the advent of democracy
• It is part of the most basic dimensions of freedom: of belief, conscience and speech
• We need these freedoms to develop our capacity to judge. To be able to distinguish between what is right and wrong, good and bad, acceptable and unacceptable
• Freedom creates the conditions for and expects respect for people’s right to hold and express beliefs, opinions and behaviours in accordance with their conscience
• In that regard no idea or view is beyond question. This means tolerating beliefs and views hostile to our own. Not censoring anybody for ‘wrong opinions’
• This requires a lot of us: confidence in our own convictions, a willingness to challenge, be challenged and to take risks
• Tolerance embraces uncertainty, viewing it as an opportunity to develop our knowledge and gain greater moral and intellectual clarity
• Some think tolerance is a form of polite indifference. Of being non-judgemental and passive. But it’s none of those
• It is not easy to be tolerant. It requires a willingness to listen to views that one finds difficult, even offensive, to judge and to make moral distinctions.

Zero Tolerance in comparison is a soft option. It encourages censorship, restrictions and laws. It closes down discussion and debate. It wants certainty. If we want to have free expression we can’t have Zero Tolerance. Instead we need zero tolerance to the Zero Tolerance for FGM approach.

We await the outcome of the Justices’ deliberations and hope it’s favourable for the family. Ten years is a long time to wait for justice to be delivered.