No, we don’t need an FGM Commissioner

Straw-dog arguments largely informed two papers promoting the need for an FGM Commissioner. Co-authored by two legal and three health professionals, one was published in the British Journal of Midwifery (BJM) July 20, and the other in Family Law Journal (FLJ) Aug 20. Neither paper is publicly accessible but a synopsis ‘Act now on Female Genital Mutilation – Research makes a case for Independent Commissioner’ can be accessed here. 

This is a long read

In the FLJ piece “Why it is time for an FGM Commissioner – practical responses to feminised issues’’, they proposed that the Commissioner could review laws, policy and procedures around FGM, ensure that health and law mechanisms are in place to support families and protect those at risk of FGM, and include oversight of developments in criminal, family and immigration jurisdiction.

A tweet by co-author Professor Felicity Gerry QC promoting the FLJ piece (09.12.20) also mentioned “tackling the discriminatory aspects of the first prosecution through practical solutions for feminised issues!”

The BJM piece “A review of law surrounding female genital mutilation protection orders” considered aspects of legislation relevant to health professionals such as midwives, with particular regard to FGM Protection Orders (FGMPOs). It made a number of suggestions for the new Commissioner including prioritising the need for a full, independent, academic evaluation of mandatory reporting, the effectiveness of FGMPOs and the interaction between mandatory and discretionary reporting.

The UK already has four Children’s Commissioners, none with an apparent interest in FGM. A search of their sites (19.01.21) did not produced a single result for ‘FGM’. But does that justify the need for another who would focus only on FGM?

Too few applications for FGMPOs?

The proposal is largely based on the premise that fewer than expected FGMPOs are being applied for, considering the number of women and girls who have undergone FGM, and are being seen in England’s NHS. Barrister Dr Proudman, a co-author, claims she was instrumental in their introduction in 2015.

The authors suspect the low number of FGMPO applications may indicate a lack of awareness among professionals and the public about legal protections available, suggesting “there are some women and girls who have undergone FGM who might have been …. protected by a FGMPO if an application has been made to the court.”

The need for FGMPOs is based on the presumption that daughters and siblings of women and girls who have undergone FGM and living in the UK are automatically ‘at risk’. The dearth of actual as opposed to anecdotal evidence in regard to FGM being carried out in the UK does not appear to be a concern. 

They could have cited evidence from original research published in 2020 which confirmed that few young children are presenting with FGM to health services in the UK or Éire. The small number of cases reported were historic, carried out prior to the children arriving in either country. The researchers surmised that their findings might be consistent with attitudinal changes in practising communities.

This research confirms what others have been reporting since at least 2009. Then, explorative studies showed trends of radical change in the practice, especially in the most extensive form (infibulation), as well as cultural change wrought by migration.

They believe the true scale of FGM in England and Wales is not being properly investigated because of a lack of consistent, high-quality data.

They illustrate this by reporting that between the introduction of FGMPOs in England and Wales in April 2015 and September 2019, 22,500 girls and women were recorded by NHS Digital as having undergone FGM. Yet only 408 FGMPO applications were made to the Family Court, and 489 Orders granted between July 2015 and Sept 2019. Reporting dates by the NHS and Ministry of Justice do not coincide.

They also cite estimates from a 2015 City University report by Professor of Perinatal Health, Alison Macfarlane and Efua Dorkeeno, who suggested that approximately 137,000 women born in the countries where FGM was practised and living in England and Wales in 2011, had undergone FGM. But had admitted they were unable to assess the numbers ‘at risk’ of it, saying “(i)t is important ……not to assume that their daughters are all at risk, as many families have given up FGM on migration and attitudes have changed in some of their countries of origin. On the other hand, others may have not given up FGM and it is important to safeguard their daughters.” 

Despite that Professor Macfarlane has warned that quantification of risk was not possible in 2015, the NHS continues to report an estimated 65,000 girls ‘at risk’ in the UK. In 2019, Macfarlane reiterated that the scale of the practice had been over-estimated and advised that a generic ‘at risk’ category should not be used in regard to FGM: “Risks to girls have to be assessed through contacts with individual mothers and families.” There is therefore no reason to assume that more FGMPOs should have been applied for.

The authors suggest the true scale of FGM in England and Wales is not being properly investigated because of a lack of consistent, high-quality data. Many justifiable criticisms have been made about NHS FGM data and how unethical the system is. These however have largely fallen on deaf ears. 

This is of course rectifiable were the NHS willing. After nearly six years of inadequate data gathering and interventions, new cases or convictions are still not materialising. I’ve reported for years that genital piercings are the only new instances of ‘FGM’ being seen in the NHS, predominantly in pregnant, caucasian teenagers. But the FGM law defines genital piercings as FGM and are reported as such. Piercers, quite rightly, are not being prosecuted for this despite the inherent double standard.

The single FGM conviction in 2019 is also questionable as many privately concede. The authors list a number of concerns in regard to it, not least that it was bogged down in ‘evidence’ of witchcraft. This critique, suggesting the mother was imprisoned for the crime of being an African woman, is apposite.

The authors list other roles for an FGM Commissioner such as reviewing Home Office guidance, and they make additional proposals.

1. Healthcare Professionals should be able to access training about FGMPOs to give them the confidence and competence to have discussions with at-risk girls and women.

Responsibilities associated with FGM legislation have been included in Midwives and other Health Professioanls training for years now and like all training needs regular updating and improvements. Huge amounts of time and money have already been spent in ‘raising awareness’ and ‘educating’ Health Professionals and others about the consequences and implications of FGM. I attended some of these initial ‘trainings’ when the content was often little more than emotive popaganda and anecdote. One immediate improvement could be that all who assess FGM risk are advised of the recommendation to identify those at actual risk only, and told how to assess but never to assume it.

The downsides, as well as the damage caused to children and families as a consequence of applications for and granting of FGMPO’s, what were initially promoted as a protective bubble wrap, are not mentioned however. After the initial excitement in regard to them, official disappointment focused on the low numbers being applied for and granted. A Metropolitan Police Office was even seconded to work with the FGM Unit when FGM ‘abuse’ was considered ‘unchecked’. The FGM Unit Lead urged health professionals then to be more brave in their use.

But problems in regard to them were already evident when I wrote this back in 2017. They included overly zealous professionals, ‘back covering’ referrals with low levels of evidence as well as the resultant trauma inflicted on children and families.

The Royal College of Midwives launched a new e-learning network for Specialist Midwives and key frontline Professionals in 2019. I hope this will encourage questioning as to why its members as well as other Registered Profesionals continue to have a Mandatory Duty to report cases of FGM in under 18 year old girls, direct to the police. This blurs professional boundaries, may prevent some from accessing healthcare and undermine sometimes hard won trust. It also, crucially, prevents Professionals from making their own independent assessment of a situation, leading to their confidence and competence being undermined.

 2. There should be more work to raise public awareness about the protections available from FGM. This could include forms that ask about FGM at every health appointment to capture those at risk of FGM, or who are concerned about FGM, who do not report specific symptoms. All women and girls should be asked explicitly if they have undergone FGM and ‘inappropriate labiaplasty’.  

In addition to proposed interventions they add more for ‘inappropriate labiaplasty’ but don’t explain what that is. Perhaps they are referring to genital cosmetic surgeries (GCS) in under 18s? This might be their way of acknowledging, that to fit a new western cultural ideal, there has been a rise in the growth of surgeries such as labiaplasty and ‘designer vaginas’ among mainly white women and teens who favour a smooth, prepubescent look. Or have it done for medical reasons. In 2012, the number of labiaplasties performed in the UK was reported to have increased five-fold in the previous decade although they are now not recommended for under 18’s. Midwives will no doubt see teens who have had GCS.

Generally, GCS are safe and side effects temporary. Ironically, similar surgeries for ‘others’ are termed ‘FGM’. That’s because, in 1985, the UK’s FGM law specifically differentiated and made illegal, what was carrried out as a cultural practice from that done within a Western context for medical reasons. Nowadays however, an increasing amount of the ‘FGM’ being carried out in ‘FGM practising countries’ is medicalised e.g. in Egypt and Sudan. We are not told how clinicians could be expected to differentiate between two almost identical clinical procedures done for cultural reasons, and consider one ‘FGM’.  Maybe by focusing on skin colour and heritage countries?

This legal anomaly which effectively legitimises racial discrimination is not referred to in the papers. This surely must concern the authors as much as other discriminatory aspects and unintended consequences do? 

Another discriminatory anomaly relates to when a girl legally becomes a woman. In the UK it is 18 years. But exceptionally, in section 6(1) of the UK FGM Act 2003, “girl” includes “woman”. So specific women, irrespective of age, are permanently considered children, legally incapable of ever consenting to ‘FGM’.  These women are not entitled to the bodily autonomy that others rightly assume. Is this not a “feminised issue” worth challenging?

Additionally, a minority of African women who’ve undergone ‘FGM’ will have been infibulated – had most of their external labia sewn together. This is traditionally done in childhood. Some will have experienced significant problems as a result, while others won’t.

But in growing up, this will have informed a girls’ sense of herself. Some may grow to like the smooth, closed look of their vulva. Almost 4,000 infibulated or deinfibulated women and girls were seen in the England’s NHS between 2015-2020. It’s probably fair to assume that, given the choice, a percentage might have liked to be reinfibulated. But they cannot because, legally, they are considered to be children. Teens under the age of 16 years who have been assessed as Gillick competent have more autonomy than these adults do.  Why can’t they, not the law decide whether to have this surgery? 

This legal discrimination is not referred to either. Surely the authors believe that all women are equal before the law and entitled to bodily autonomy? I expanded on my views of this particular type of racial discrimination in this short video. 

3. Local authorities should be encouraged to apply for FGMPOs where the child’s immigration status is insecure and they are at risk of removal to their country of origin where they might be subject to FGM. 

Local Authorities (LAs) have been active in this arena since Barnardo’s Charity and the Local Government Association (LGA) set up the National FGM Centre in 2015, having secured two million pounds in Government funding. The Centre was designed to address the needs of LAs with relatively high numbers of identified FGM cases, as well as those with a lower number of identified cases and with limited experience of working with people affected by FGM. 

In November 2018, an LGA report created sensationalist headlines when it boasted an ‘alarming’ 100 per cent increase in Social Work FGM assessments – the number who have experienced or were at risk of FGM were reported to have risen from 970 in 2016-17 to 1,960 in 2017-18. This was challenged by Dr Macfarlane after identifying a major data error. The Guardian was obliged to remove it’s report when the paper ‘was notified of a fundamental error in the official data on which it was based’. Yet an uncorrected LGA account remains accessible here with a suggestion that the figures ‘are likely to just be the tip of the iceberg because many cases of FGM go undetected.’

Of course data errors occur but there are many examples from around the country where LAs have been proactive, and people of Somali heritage in particular at the receiving end. Campaigner Zainab Nur of Hidden Voices UK knows of more than a dozen examples where children were wrongly taken into care due to assumed FGM risks. Some from Cardiff can be accessed here. 

Bristol LA was also a proud interventionist. There, statutory services, supported by charities and community ‘representatives’ had assumed risk where there wasn’t any, and intervened to the detriment of family life. Accounts of the trauma, victimisation and sense of disempowerment that some experienced as a consequence can be accessed here and here. The widely promoted ‘Bristol Model’ was consequently discredited.

But what happened in Slough is salutary. There, Somali parents told the BBC of their nightmare which included wrongful arrests, five children placed in foster care and FGMPO’s granted. The negative publicity generated forced the Council to back down, have the children returned and the FGMPO’s removed. But at what expense to the family?

Dr Kirkland reported for BBC Newsnight that some children in the UK had even spent months on child protection registers, or in foster care, on suspicion that they were victims of FGM when they were not. And used the opportunity to illustrated the harm being done to chidren and families.

Examples like these do not encourage people to put their trust in LAs or other services. But nobody, least of all people from previously practising communities, would disagree with the need to intervene were children at actual risk of FGM.

Recommendations 

I am unconvinced by the arguments favouring an FGM Commissioner. If there is something specific that only this Commissioner could do, surely the Children’s Commissioners’ remit could include it? 

There are huge problems with what has already become an FGM industry, the way it operates and the damage it causes. An FGM Commissioner might add to and perpetuate this. There is instead a need for all involved to call for and participate in an honest review of the anti-FGM movement, not least for the sake of the families and communities who fall foul of it, those who work in it and the public ‘educated’ to a particular viewpoint in regard to ‘FGM’. This might help depoliticise the issue and allow for an accurate picture to emerge.

Health Professionals and others have acquired a wealth of knowledge, experience and expertise in dealing sensitivly with girls and women who present with FGM and associated problems. Continuing to share and involving communities would contribute to their ongoing professional development and benefit patients immensely. It would also inform how services could adapt to actual and/or changing need.

No demonstrable case for more Public Health interventions premised on the “prevention is better than cure” mantra has been made. Change has already come about, as is evidenced by the generations who have grown up in the UK and elsewhere knowing nothing of FGM – at least not until the anti-FGM movement ‘educated’ them about it. 

The discriminatary aspects of interventions certainly need challenging. The papers’ legal contributors seem well placed to initiate this and help tackle the inbult discrimination of the FGM law. They could even take it a step further and join me and others in calling for FGM to be decrimialised. They’ve already gone part way in admitted that using the law to deal with social problems is inappropriate. And they must know that the Offences Against the Person Act 1861 already includes FGM in its remit?

During my many years of working with children and families as a Health Professional, I learnt that it is rare for families not to prioritise their children’s interests. The anti-FGM movement has been responsible for causing untold damage to children and their families. It should be applauding parents for their efforts instead of seeking more ways to protect children from them.