Dissertation all together

1
A critical evaluation of the Female Genital Mutilation Act 2003
and the Serious Crime Bill [HL] 2014-15
in their ability to effectively combat Female Genital Mutilation in
the UK.
Ashleigh Bird
Student Number: 1912185
Supervisor: Dr Kay Goodall
April 2015
Bachelor of Laws with Honours (LL.B)
School of Law and Philosophy
Word Count: 10834

2
Acknowledgements
Firstly,Iwouldlike tothankDr Elaine Sutherland,DrBelénOlmosGiupponiandmy
supervisor,DrKayGoodall,whose teachingsinspiredme toundertake suchanemotive
topic.I extendspecificthankstoDr Goodall forhervaluedguidance andinputthroughout
thisprocess.Secondly,Iwouldliketoextendmygratitude tothe StirlingCitizensAdvice
Bureauwhose DomesticAbuse Projecthasprovidedme withaninvaluable insightintothe
challengesfacingvictimsof abuse.Thirdly,Iamgrateful to Mridul Wadha,the Education
OfficeratShakti Women’sAid,whodeliveredthe ForcedMarriage inScotlandTraining.
Wadha’spresentationsofferedme afrontline perspective of the specificchallengesfacing
the victimsof cultural practicessuchas FGM and forcedmarriage.Fourthly,Iwouldlike to
thankSoroptimistInternational of Stirlingforofferingme the opportunitytopresentmy
workto its members.Finally,Iwouldlike tothankmyfamilyandfriendsfortheircontinued
love andsupportthroughoutmylaw degree.Specifically,IwouldliketothankAllanGreen
whose unwaveringsupporthasbeeninvaluable.
I confirmthat thisdissertationisentirelymyownworkandcomplieswiththe University’s
policyonplagiarism.

3
Abstract
Female Genital Mutilation(FGM) isprohibitedinthe UK(EnglandandWales) underthe
Female Genital MutilationAct2003.1
However,“evenconservative estimatesindicate that
it couldbe the most prevalentformof severchildabuse inthe UK.”2
The UK’s prolonged
failure toadequatelyprotectitswomenandgirlsfromFGMis a violationof itsinternational
legal obligations.3
InJune 2014 the Home Office publishedthe SeriousCrimeBill [HL] 2014-
154
whichseeksto“strengthen and updatelaw to protectvulnerableindividualsfrom…
femalegenital mutilation.”5
Therefore,considerationisgiventothe reasonsbehindthe
failedapplicationof the 2003 Act and whetherornotthe Bill’sprovisions willbe an
adequate remedy.Overall,the provisionsof the Bill are tobe welcomed.However,the
successful eradicationof FGMwill be dependentonadditional non-legal mechanismssuch
as educationand communityengagementprogrammesinbothinthe UK and inthe
practice’scountryof origin.
1 In Scotland,FGM is prohibited under the Female Genital Mutilation (Scotland) Act2005.
The Female Genital Mutilation Act 2003 repealed and replaced the Prohibition of Female
Circumcision Act1985 however; most of its provisionswerereinstated. See chapter 2.
2 House of Commons Home Affairs Committee: Female Genital Mutilation:the casefor a national
action plan Second Report of Session 2014-2015 (HC201,25 June 2014) 9. (House of Commons Home
Affairs Committee).
An estimated 660,000 women between the age of 15 and 49 have undergone the procedure and
24,000 girls under the age of 15 are estimated to be at risk or may have already undergone FGM
Type 3: Infibulation;
Efa Dorkenoo, Linda Morison and Alison Mcfarlane, A statistical study to estimate the prevalence of
female genital mutilation in England and Wales, (Forward UK, 2007). (Efa Dorkenoo)
3 Bar Human Rights Committee of England and Wales,Report of the Bar Human Rights Committee of
England and Wales:To the Parliamentary Inquiry into FemaleGenital Mutilation (London, February
2014) 7
<https://barhumanrights.org.uk/sites/default/files/documents/news/bhrc_fgm_submission_12_feb
_2014.pdf> accessed 07/09/2014 (BHRC, To the Parliamentary Inquiry into FGM)
4 The Serious Crime Bill [HL] (2014-15) [160].The Bill received Royal Assent on the 03 March 2015
and became the Serious CrimeAct 2015.
5 UK Government, “New Powers to tackle serious and organised crimeannounced” Gov.UK (6 June
2014) <https://www.gov.uk/government/news/new-powers-to-tackle-serious-and-organised-crime-
announced> accessed 19/02/2015.

4
Contents
Title Page……………………………………………………………………………………………………………………….…1
Acknowledgement………………………………………………………………………………………….………….……2
Abstract…...………………………………………………………………………………………………………………………3
Table of Contents……………………………………………………………………………………………………………..4
Table of Abbreviations……………………………………………………………………………………………..………5
Introduction…………………………………………………………………………............................................6
Literature Review…………………………………………………………………………………………………7
FGM: Why ShouldBritainCare?.............................................................................9
Chapter1: The UK Legal PositionandInternational Obligations………………………..…………..11
Chapter2: The Female Genital MutilationAct2003……………………………………………………….16
Chapter3: The SeriousCrimesBill [HL] 2014-15…………………………………………………………….35
Chapter4: Legal andNon-legal Cooperation…………………………………………………….…………..57
Conclusion………………………………………………………………………………………………………………....…61
Bibliography…………………………………………………………………………………………….…………………...64

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Table of Abbreviations
ACPO- Associationof Chiefof Police Officers
BHRC- Bar Human RightsCommittee
BME- BlackMinorityEthnic
CSO- Civil SocietyOrganisation
CPS- CrownProsecutionService
FGCS- Female Genital CosmeticSurgery
FGM- Female Genital Mutilation
FGMPO- Female Genital MutilationProtectionOrder
FMPO- Forced Marriage ProtectionOrder
Professionals/Practitioners- referstoFront-Line ProfessionalsorPractitioners
Victim/s- referstoa victimorvictimsof FGM
WHO- WorldHealthOrganisation
“the Act/the 2003 Act”- Female Genital MutilationAct2003
“the Bill”- SeriousCrimesBill[HL] 2014-15
“2004 Act”-DomesticViolence,Crime andVictimsAct2004
“2007 Act”- ForcedMarriages(Civil Protection) Act2007

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Introduction
“It’s Black and Asian Vaginas. Who’s Interested?”
-Felicity Gerry, 2013 on Channel 4’s “The Cruel Cut” (6 November 2013)
Female Genital Mutilation (FGM) or female circumcision “comprises all procedures
involvingthe partial ortotal removal of the external femalegenital organs for non-medical
reasons.”6
The practice is prohibited in the UK under the Female Genital Mutilation Act
2003 (the Act).7
Despite criminalisationin19858
an estimated660,000 womenbetweenthe
age of 15 and 49 have undergone the procedure and 24,000 girls under the age of 15 are
estimatedtobe at riskor may have alreadyundergone FGMinthe UK.9
However, it was not
until March 2014 that the Crown Prosecution Service (CPS) announced its first ever
prosecutionof the offence.10
The UK’slackof prosecutions11
hasbeen branded a “national
6 World Health Organisation,“Female Genital Mutilation:Fact Sheet No 241” (World Health
Organisation,February 2014)
<http://www.who.int/mediacentre/factsheets/fs241/en/> accessed 26/02/2015
7 The Female Genital Mutilation Act 2003 repealed and replaced the Prohibition of Female
Circumcision Act1985 however, most of its provisions werereinstated. See Chapter 2
8 FGM was originally criminalised under the Prohibition of Female Circumcision Act1985
9 Efa Dorkenoo (n2)
10 The CPS alleges that Doctor Dharmasena had repaired a previous mutilation himself.Dr
Dharmasena is to be prosecuted for an offence contrary to Section.1(1) of the Female Genital
Mutilation 2003 Act. Mr Hasan Mohamed is to faceone charge of intentionally encouragingan
offence of FGM, contrary to Section 44(1) of the Serious Crimes Act 2007 alongwith a second charge
of aiding,abetting, counsellingor procuringDr Dharmasena to commit an offence contrary to
Section.1(1) of the 2003 Act.
Serious Crimes Act 2007 Section 44: Intentionally encouragingor assistingan offence
“(1) A person commits an offence if—
(a)he does an act capable of encouraging or assisting the commission of an offence; and (b)he
intends to encourage or assist its commission.
(2) But he is not to be taken to have intended to encourage or assist the commission of an offence
merely because such encouragement or assistance was a foreseeable consequence of his act.”
Crown Prosecution Service, “Firstprosecutions for female genital mutilation”CPS.GOV.UK (21 March
2014) < http://blog.cps.gov.uk/2014/03/cps-announces-first-prosecutions-for-female-genital-
mutilation.html>accessed 09/09/2014 (CPS, FirstProsecution for FGM);
For further readingsee: Sue Jenkinson and Dave Tapp, “Crime or Culture- Female Genital
Mutilation/Cutting”(2014) Vol.178(48) Criminal Lawand JusticeWeekly
<http://www.criminallawandjustice.co.uk/features/Crime-or-Culture-%E2%80%93-Female-Genital-
MutilationCutting>accessed 28/11/2014 (Jenkins)
11 BHRC, To the Parliamentary Inquired into FGM (n3) 7

7
scandal.”12
In June 2014, the House of Commons Home Affairs Committee’s Report:
“Female Genital Mutilation: The case for a national action plan” made a series of legal and
non-legal recommendations to improve the UK’s ability to combat FGM. In the same
month, the Home Office published the Serious Crime Bill [HL] 2014-15 (the Bill) with the
same aim.13
Therefore, an exposition of the failures of the act itself must precede a
discussion of the Bill.
Literature Review
In the UK FGM has been approached fromdifferentanalytical methodsincludingethnic
perspectives,14
asa cultural pathologythatistiedtotraditional notionsof izzat(honour),
sharam (shame)15
andthe continuationof patriarchal dominance throughsexual
repression.16
However,the majorityof workhasfocussedonthe practice’s place of origin,
namelyAfrica.17
Inthe UK, the majorityof discussionshave focussedonthe developmentof
legislation,18
the approachtomulticulturalism19
andthe recentlegal developmentsamong
Asylumlaw.20
Moreover,researchthatexamines thisfailure andhasonlyemergedinrecent
12 House of Commons Home Affairs Committee (n2) 10
13 The Serious Crime Bill [HL] (2014-15) [160];UK Government, “New Powers to tackleserious and
organised crime” (n5)
14 Catherine Shelly,“Beating children is wrong,isn’tit? Resolvingconflicts in theencounter between
religious worldviews and child protection”(2013) Ecclesiastical LawJournal 130 (Shelly);
Sarah Long, “Multiculturalismand female genital mutilation”(2004) University CollegeLondon
JurisprudenceReview 169 (Long)
15 Urdu Translation as cited in WHO, Factsheet (n6)
16 Abdulmumini A. Oba, “Female Circumcision as FemaleGenital Mutilation:Human Rights or
Cultural Imperialism”(2008) Vol.8(3) Global Jurist: Frontiers,Article8; Jenkinson (10)
17 Erin L. Han, “Legal and Non-Legal Responses to Concerns for Women's Rights in Countries
PracticingFemaleCircumcision”(2002) Vol.22 Boston College Third World Law Journal 201
18 Neelam Sarkaria and Felicity Gerry,“Time for the firstFGM prosecution?”(November 2012)
Counsel: Journal of the Bar of England and Wales 27; Shelly (n14)
19 Parekh, B. Rethinking Multiculturalism: Cultural Diversity and Political Theory (PalgraveMacmillan,
2005); Long (n14)
20 Brendan Kelly, “What is a ‘particular social group’? Review of the development of the Refugee
Convention in England”(2010) Journal of Immigration Asylumand Nationality Law9;
Gemma Manning,“Female Genital Mutilation and the Assessment of Risk”(2014) Vol.72 Student
Law Review 39;
CarolineBridge,“Asylum: Fornah v Secretary of State for the Home Department [2005] EWCA Civ
680” (2005) Vol.35 Family Law 849

8
years.21
Thisliterature focusesonthe unwillingnessof practicingcommunitiesto stopFGM
and the barriersfacinggatheringsufficientevidence.22
Interestinthe topichasbeen
propelledbythe recentmediacampaignsthathave servedtoenhance the public’s
awareness of the practice.23
However,while thereisalack of literature aboutthe UK’s
failure toeffectivelycombatFGMthere is a bodyof work that infers abiasedlegal attitude
towardsthe treatmentof BME communitiesand theircultural andreligioustraditions.
Specifically,the acceptance of female genital cosmeticsurgeryandmale circumcisionand
the denial of a female equivalent.24
Therefore,the questioniswhetherornot such
inconsistencies have hinderedthe enforcementof the 2003 Act.Moreover,a growingbody
of literature emphasisesthe needforcommunityengagementinitiativestoeradicate the
practice from withinthe community inboththe UKand the practice’scountryof origin.25
Therefore,anyproposal bythe UK Governmenttoimprove the enforcementof itslegal
provisionsandpromote the eradicationof FGMmustbe evaluatedagainstathoroughand
comprehensive understandingof the barriersfacingitscurrentapplication.
21Tiffany Ballenger,“FGM: Legal and Non-legal Approaches to Eradication”(2008) Vol.9 Journal of
Law and Social Challenges 84 (Ballenger);Felicity Gerry, “Let’s Talk About Vaginas:Female Genital
Mutilation:the failureof international obligations and howto end an abusivecultural tradition.”
(2014) Vol.2(1) Griffith Journal of Law and Human Dignity 78 (Gerry, the failureof international
obligations);Sarkariaand Gerry (n18); Manning(ibid);Jenkinson (n10); Shelly (n14);.
22 Susan Elmusharaf,Nagla Elhadi and Lars Almroth,“Reliability of Self Reported Form of Female
Genital Mutilation and WHO’s classification:Cross Section Study” (2006) Vol.333 British Medical
Journal 124;House of Commons Home Affairs Committee (n2).
23 House of Commons Home Affairs Committee (n2);
BBC, “Stop Cutting Our Girls:A comic Relief Special”(11 March 2015) availableon the BBC iPlayer
website < <http://www.bbc.co.uk/iplayer/episode/b054v3mt/stop-cutting-our-girls-a-comic-relief-
special>accessed 21/03/2015;
Channel 4, “The Cruel Cut” (6 November 2013) availableon the ‘Channel 4: On Demand’ website<
http://www.channel4.com/programmes/the-cruel-cut> accessed 21/03/2015
24 Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural and Medical Issues, (McFarland &
Company, Inc.,Publishers,2005) (Skaine);
Muhammad Munir,“Dissectingthe claims of legitimization for the ritual of female circumcision or
female genital mutilation (FGM)” (2014) International IslamicUniversity (Munir);
Lisa R. Avalos,“Female Genital Mutilation and Designer Vaginas in Britain:Craftingand Effective
Legal and Policy Framework” (2015) (Forthcoming) VanderbiltJournal of Transnational Law (Avalos).
25 Patricia A.Broussard,“The Importation of Female Genital Mutilation to the West: The CruelestCut
of All” (2009-2010) Vol 44 University of San Francisco LawReview 787;
Ballenger (n21); Han (n17)

9
FGM: Why ShouldBritainCare?
In 2013 UNICEFestimatedthatmore than 125 milliongirlsandwomenhave beenmutilated
worldwide.26
In2008 the WHO etal submittedthatbetween100 and 140 milliongirlsand
womenhadundergone the procedure and3 milliongirlswere estimated tobe at risk
globally. 27
FGMis mostprevalentin: “the western,easternandnorth-easternregionsof
Africa,some countriesinAsiaandthe Middle East.”28
However,itisnow alsofoundinparts
of Europe andthe UK.29
AccordingtoYoder PSet al,growing migrationhasincreasedthe
numberof girlslivinginEurope whohave undergone FGMor are at riskfromit.30
Inthe UK
the most widelycited31
estimates were publishedby FORWARDUK in2007.32
Usingthe
2001 censusdata, it was estimatedthatapproximately 660,000 womenbetweenthe ages
of 15 and49 inEnglandand Waleshadundergone FGMandthat 24,000 girlsunderthe age
of 15 were at highriskor may have alreadyunderdoneFGM.33
FGM istypicallyperformedongirlsbetweeninfancyandage 1534
and has beenclassified
intofourmajor Types (WHO):
26 UNICEF, “Female Genital Mutilation/Cutting:a statistical overviewand exploration of the dynamics
of change” (July,2013) < http://www.unicef.org/publications/index_69875.html> accessed
15/110/2014
27 World Health Organisation,“EliminatingFemaleGenital Mutilation:An interagency statement”
(UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCHR, UNHCR, UNICEF, UNIFEM, WHO, 2008) 1.
(WHO, An Interagency Statement)
28 ibid
29 For further readingon the importation of FGM into the UK see: Broussard (n25) 787,806-807
30 Yoder PS, Abderrahim N. Zhuzhini,“A. Female genital cutting on the Demographic and Health
Surveys: A Critical and ComparativeAnalysis”(2004) Vol.7 DHS Comparative Reports, ORC Macro
31 In March 2015 the BBC cited the statistics aspartof the FGM documentary “Stop Cutting Our
Girls”(n23);
In 2013, Channel 4 cited the statisticsin thedocumentary “The Cruel Cut” (n23)
32 Efa Dorkenoo (n2)
33 Infibulation:narrowingof the vaginal openingthrough the creation of a covering seal.The seal is
formed by cutting and repositioningtheinner, or outer, labia,with or without removal of the clitoris.
WHO, An Interagency Statement (n27) 6
34 WHO, Factsheet (n6)

10
Type 1. Clitoridectomy:The partial ortotal removal of the clitorisand/orthe prepuce
surroundingthe clitoris;
Type 2. Excision:The partial ortotal removal of the clitorisand/orthe labiaminora,withor
withoutexcisionof the labiamajora;
Type 3. Infibulation:The narrowingof the vaginal openingthroughthe creationof acovering
seal bycuttingand repositioningthe innerorouterlabia,withorwithout, removal of
the clitoris.
Type 4. Other:All otherharmful procedurestothe female genitaliafornon-medical
purposes.35
HealthrisksassociatedwithFGMinclude: “severe pain,shock,haemorrhage,tetanusor
bacterial infection,urine retention,opensores,cysts,infertility,anincreasedriskof
childbirthcomplications, new-borndeathsandthe needforlatersurgeries.”36
The general consensusindicatesthatFGMispracticedto maintainpatriarchal dominance
and adhere tosocial norms rather than as a religiousrequirement:37
“FGM functionsasa self-enforcing socialconvention orsocial norm.Familiesand individuals
continue to perform it because they believe that their community expects them to do so.
They further expect that if they do not respect the social rule, they will suffer social
consequences such as derision, marginalisation and loss of status.”38
35 ibid;WHO, An Interagency Statement (n27) 6.
For further readingon infibulation see:Binaifer A Davar,“Women: Female Genital Mutilation”
(1996-1997) Texas Journal of Women and the Law 257.
36Gerry, The failureof international obligations(n21) 81;
WHO, An Interagency Statement (n27) 11.
37 However, see Chapter 2
38 World Health Organisation,“Global Strategy the stop health-careproviders from performing
female genital mutilation”(UNAIDS, UNDP, UNFPA, UNHCR, UNICEF, UNIFEM, WHO,
FIGO, ICN, IOM,MWIA, WCPT, WMA, 2010) 2. (WHO, Global strategy)

11
Accordingto Broussard,awarenessof FGMisincreasinginthe UK: “The recentwidespread
immigration…have givenWesternersafirst-handview of cultural practicesonce shieldedby
distance,silence andabit of disinterest.”39
Furthermore,increasedmediacoverage40
and
campaignsbythe EveningStandard,the GuardianandThe Timeshave createda greater
publicawarenessof FGM.41
This increasedpublicawarenesshasled toa Parliamentary
InquiryintoFGM42
to whichthe Bar of Human RightsCommittee (BHRC) submitteda
report.43
The Reportcondemnedthe UK’sresponse toFGMand consequentlyheldthe UK
to be in breachof itsinternational legal obligations.44
Therefore, ananalysisof the 2003 Act
isrequiredif anexplanationof thisfailure istobe found.
ChapterOne:The UK Legal PositionandInternational Obligations
In the UK FGM was criminalised bythe Prohibitionof Female CircumcisionAct1985 (1985
Act). 45
Onthe 3rd
March 2004 the 1985 Act was repealedandreplacedwiththe Female
Genital MutilationAct2003; howeverthe majorityof the 1985 Act’s provisionswere
reinstated.46
Section.1(1)(a) of the 2003 Act states:“A person is guilty of an offenceif he
excises,infibulatesor otherwisemutilatesthe wholeor any partof a girl’s labia majora,
39 Broussard (25) 787
40 BBC, “Stop Cutting Our Girls”(n23);Channel 4 “The Cruel Cut” (n23)
42 Bar Human Rights Committee of England and Wales,“Report of the Bar Human Rights Committee
of England and Wales:To the Office of the High Commissioner for Human Rights” (3 October 2014) 2
< http://www.barhumanrights.org.uk/sites/default/files/documents/biblio/ohchr_bhrc.pdf>
accessed 10/11/2015 (BHRC, To the Officeof the High Commissioner for Human Rights);
House of Commons Home Affairs Committee (n2) 9
43 BHRC, To the Parliamentary Inquiry (n3)
44 Ibid 3
45 The Prohibition of Female Circumcision Act1985. The Act was repealed and replaceby the Female
Genital Mutilation Act 2003.In Scotland,the relevant legislation isthe Female Genital Mutilation
(Scotland) Act 2005.
For further readingon the 1985 Act see: Joyce Board and Lesley Vickers “Female circumcision or
female genital mutilation”(16 February 2001) Vol.151 New Law Journal 208
46 ibid

12
labia minora or clitoris.”47
However,surgerycanbe performedif medicallyrequired “for
her physicalor mentalhealth”48
andis performedby “a registered medical practitioner,a
registered midwife or a person undergoing a courseof training with a view to becoming
such a practitioner…”49
Furthermore, in“determining whetheran operation isnecessary for
the mentalhealthof a girl it is immaterial whethersheor any otherperson believes thatthe
operation is required as a matterof customor ritual.”50
The 2003 Actincreased the maximumpenaltyforconvictiononindictment froma
maximumof five yearsunderthe 1985 Act51
to “a term notexceeding fourteen years.”52
The
penalty forsummaryconviction wasreinstatedas“imprisonmentfora termnotexceeding
six monthsora finenot exceeding thestatutory maximum(orboth).”53
Italsoextended the
47Under the Female Circumcision Act1985 Section.(1)(a) and (b) itwas a criminal offence for: “any
person (a) to excise, infibulate or otherwise mutilate the whole or any part of the labia majora or
labia minora or clitoris of another person; or (b) to aid, abet, counsel or procure the performance by
another person of any of those acts on that other person’s own body.”
48 Female Genital Mutilation Act2003 Section.1(2)(a). Section.1(2)(b) extends the exception to
include:“a surgical operation on a girl who is in any stage of labour, or has just given birth, for
purposes connected with the labour or birth.”
Under the Prohibition of Female Circumcision Act1985 Section.2(1)permitted surgery necessary: “(a)
…for the physical or mental health of the person… or (b) is performed on a person who is in any stage
of labour or has just given birth and is so performed for purposes connected with that labour or
birth.”
49 Female Genital Mutilation Act2003 Section.1(3)(b); Equally,under the Prohibition of Female
Circumcision Act1985.Surgery connected with the labour or birth must be performed by “a
registered medical practitioner or a registered midwife has just given birth” (Section.2(1)(b)(i)) or “a
person undergoing a course of training with a view to becoming a registered medical practitioner or
a registered midwife” (Section.2(1)(b)(ii)).
50 Female Genital Mutilation Act2003 Section.1(5); Prohibition on Female Circumcision Act1985
Section.2(2): “In determining for the purposes of this section whether an operation is necessary for
the mental health of a person, no account shall be taken of the effect on that person of any belief on
the part of that or any other person that the operation is required as a matter of custom or ritual.”
51 Prohibition of Female Genital Mutilation Act 1985 Section.1(2)(a),(b)
A person convicted of an offence was liable“on indictment, to a fine or to imprisonment for a term
not exceeding five years or to both; or (b)on summary conviction, to a fine not exceeding the
statutory maximum or to imprisonment for a term not exceeding six months, or to both.”
52 Female Genital Mutilation Act2003 Section.5(a)
53 Female Genital Mutilation Act2003 Section.5(b) and the Prohibition of Female Circumci sion Act
1985 Section.1(2)(b): “on summary conviction, to a fine not exceeding the statutory maximum or to
imprisonment for a term not exceeding six months, or to both.”

13
offence toassistingagirl to mutilate herowngenitals54
andforUKnationalsorpermanent
UK residents toorchestrate the offence beingcommittedabroad.55
The intentionwasto
preventFGMfromoccurring inthe firstinstance.56
However, the firsteverprosecutionof
the practice was onlypursuedinMarch 2014.57
The Act hasfailed.
The UK’s domesticactivitieshave furtherimpetusdue toInternational legal obligations
including:
The Conventionforthe Eliminationof All Formsof DiscriminationagainstWomen
1979.58
Unequivocally, “FGMconstitutesone of the mostabhorrentformsof
discrimination.”59
The UN ConventionagainstTorture andOtherCruel,InhumanorDegrading
Treatmentor Punishment 1984.60
54 Female Genital Mutilation Act2003 Section.2: “A person is guilty of an offence if he aids, abets,
counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own
labia majora, labia minora or clitoris.”
55 Female Genital Mutilation Act2003 Section.3(1): “A person is guilty of an offence if he aids, abets,
counsels or procures a person who is not a United Kingdom national or permanent United Kingdom
resident to do a relevant act of female genital mutilation outside the United Kingdom”
56 Sarkaria and Gerry (n18) 28
57 CPS, “First prosecution for FGM” (n10)
See also:Jenkinson and Tapp (n10) 210
58 The Convention on the Elimination of All Forms of Discrimination againstWomen (CEDAW),
adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for
women. It defines what constitutes discrimination againstwomen and sets up an agenda for national
action to end such discrimination.Article.1 states:“For the purposes of the present Convention, the
term "discrimination against women" shall mean any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality of men and women, of
human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other
field.” Article.2 requires States to: “States Parties condemn discrimination against women in all its
forms, agree to pursue by all appropriate means and without delay a policy of eliminating
discrimination against women.”
59 BHRC, To the Parliamentary Inquiry (n3) 7
60 UN Convention againstTortureand Other Cruel, Inhuman or Degrading Treatment or Punishment
1984 Article.1: ““[T]he term "torture" means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person … for any reason based on discrimination of

14
The UN Conventionon the Rightsof the Child1989 requiresthatthe UK ensures
that itschildrenare notsubjectto “torture or othercruel,inhumanor degrading
treatment.”61
Cleary,FGMis an “irreparable violationof the child’sbodilyintegrity
and physical andpsychological health.”62
The Council of Europe Conventiononpreventingandcombatingviolenceagainst
womenanddomesticviolence (The Istanbul Convention). Article3drecognises
FGM as a specificformof violence againstwomen63
andrequires thatmember
statesintroduce FGMas a criminal offence.64
However,FelicityGerry states:“International declarationsfor the benefitof womenand
girlshave no currencyif the wordsdo not translate intopractice.”65
Giventhe prevalence of
the practice,there is“veryseriousdoubtthatthe UK has compliedwiththese
obligations.”66
Accordingly:
any kind.” Article.2 demands that states “take legislative,administrative, judicial or other measures
to prevent acts of torture within its jurisdiction.”
61The UN Convention on the Rights of the Child 1989 Article37(a)
63 Article38(a) of the Istanbul Convention defines FGM as:“excising, infibulating or performing any
other mutilation on the whole or any part of a woman’s labia majora, labia minora or clitoris.”
64 The Istanbul Convention Article45 Paragraph 1 also asserts thatthe criminal sanctionsmustalso
be “effective, proportionateand dissuasive.”Moreover, guidancefrom the Council of Europe assets
that:“the offence applies irrespective of whether or not the act was committed intentionally or
performed by a medical practitioner and includes the act of pressuring or coercing a girl or a woman
to undergo the procedure “voluntarily.””
Council of Europe, “Safe From Fear, Safe From Violence: The Council of Europe Convention on
preventing and combating violenceagainstwomen and domestic violence”(2014)
<http://www.coe.int/t/dghl/standardsetting/conventionviolence/thematic_factsheets/FGM_EN.pdf
> accessed 09/09/2014
65 Gerry (n21) 82

15
“[T]he UK has been in serious breach of its international obligations to protect women and
children from genital mutilation [and that] during the period the UK has been on breach,
thousands, of British national girls have been mutilated… their mutilation evidences a
serious breach of the state’s duty of care.”67
[…] “Intrinsic to these obligations in the
requirement that states must not only respond to FGM but respond in an effective way.
Passing legislation,asthe UKhasdoneremainsan insufficientresponseif implementation is
not effective in practice.”68
To rectify this,Bill proposesan“unprecedented”69
amountof legal provisions designed “to
strengthenandupdate lawstoprotectvulnerable individualsatriskof…femalegenital
mutilation.”70
These include:
1. Extensionof the 2003 Act’sprotectionoverthose withoutsecure
immigrationstatus;
2. Lifelonganonymityof FGMvictims;
3. The introductionof a ‘parental‘71
offence forfailingtoprotect a childat risk
of FGM;
4. The introductionof a civil remedyinthe formof FGM ProtectionOrders
(FGMPO) and;
5. A proposedmandatorydutyonprofessionalstoreportsuspectedinstances
of FGMto the relevantauthorities.
67 ibid 1
68 ibid 4
69 UK Government “New powers to tackleserious and organised crime”(n5)
70 ibid
71 Liability is afforded to those actingas loci parentis.

16
The UK has beencommittedbothdomesticallyandinternationallytothe eradicationof
FGM. However,ithasbeenunsuccessful.Tounderstandwhy,ananalysisof the 2003 Act
and the Bill’spropositionsisnecessary.
Chapter2: The Female Genital MutilationAct2003
Despite severalpoliceinvestigations,72
NeelamSarkaria73
etal’sassertionthat:“These will
be difficulttrialsbuttheyare possiblewithabitof will anda lot of effort”74
has proved
fruitless. AsFelicityGerry insists:“Thesuccessfulprosecution [of FGM] dependson there
being reportsmadeto the police in relation to thoseat risk or thosemutilated followed by a
proactiveinvestigation.”75
The questionremains:Whyare these activitiesnotbeing
reported?
Firstly, the practice isofteninstigated,if notperformed,bythe victim’sfamily.76
Therefore,
victimsmaybe reluctantto reportthe offence.77
Secondly,youngvictimsmaynot
remember78
orrealise whattheyhave beensubjectedtountil several yearslater.79
Thirdly,
a victimmay view FGMas herrite of passage intoadulthood.80
Finally,FGMis typically
performedasa meansof preservingthe familyhonour;ensuringagirl’svirtue by“cutting
Moreover, the CPS only received its firstreferral from policein 2010.
73 At the time of the statement, Sarkariawas the Head of the Criminal JusticeUnitat the Crown
Prosecution Serviceand Vice-Chair of the Association of Woman Barristers.
Sarkaria and Gerry (n18) 27
74 ibid
75 Felicity Gerry, “Female genital mutilation:time for a prosecution” The Guardian (13 November
2012) <http://www.theguardian.com/law/2012/nov/13/female-genital-mutilation-prosection-uk>
accessed 07/08/2014
76 WHO, An Interagency Statement (n27) 5
“Member of the extended family are usually involved in decision-making about female genital
mutilation, although women are usually responsible for the practical arrangements for the
ceremony.”
78FGM is reported to typically occur between infancy and the age of 15.
80 WHO, An Interagency Statement (n27) 6; House of Commons Home Affairs Committee (n2) 13

17
away the dirt”81
and removing“herneedforman.”82
As such,fleeingordefyingthe practice
isviewedas placingthe familyandcommunity ‘izzat’injeopardy.83
Accordingly, a
noncompliantgirl mayface reducedmarriage prospects,ostracism, evenviolence andis
compelledintosilence.84
Therefore,asThe Directorof PublicProsecutionsconcluded:“If
youwait forthe girl to come and tell youwhathashappenedto her[…] that isnot goingto
happen.”85
Overall:
“Survivorsaredisempowered girls, with little voices, knowledge or social resources to make
official complaints…[they] are confused, have conflicting loyalties and are scared of losing
their parents.”86
Therefore,victimsandpotential victimsare unlikelytoreportthe offence.
Furthermore,membersof practicingcommunities maybe reluctantto reportthe crime:
“[They] expectthatif they do notrespect the social rule, they will suffersocialconsequences
such as derision, marginalization and loss of status. [FGM] is considered to be a necessary
81 Some practicingcommunities viewfemale sexuality as a potential threatto family honour.
Therefore, female sexuality is in need of repression and achieved by mutilatingthe genitals. In
Kembata, Tembaro, the practiceif called “cuttingoff the dirt.”
Tina Rosenberg, “TalkingFemale Circumcision outof Existence” The New York Times (17 July 2013) <
http://opinionator.blogs.nytimes.com/2013/07/17/talking-female-circumcision-out-of-existence/>
accesses 13/07/2014
82 Shekh Yussef al-Badri is oneEgypt’s primary advocates for female genital mutilation.Cited in:
BBC News, “Circumcision controlswomen’s sex common sense” BBC News|Africa (19 June 2013)
<http://www.bbc.co.uk/news/word-africa-22958512> accessed 13/07/2014;
See also Celia W.Dugger, “Report Finds Gradual Fall in FemaleGenital cuttingin Africa” The New
York Times (22 July 2013) <http://www.nytimes.com/2013/07/23/health/report-find-gradual-fall-in-
female-genital -cutting-in-africa.html?pagewanted=all&_r=0>accessed 27/12/2014
83 ‘Izzat’ is the Urdu translation for ‘Honour.’
84 Rosenberg (n81)
85The Director of Public Prosecutionscited in Houseof Commons Home Affairs Committee (n2) 13
86 Dexter Dias,Felicity Gerry and Hilary Burrage,“10 reasons why our FGM lawhas failed-and 10
ways to improve it” The Guardian (7 February 2014)
http://www.theguardian.com/commentisfree/2014/feb/07/fgm-female-genital-mutilation-
prosecutions-law-failed accessed 14/11/ 2014

18
step to enable girls to becomewomen and to be accepted…by thesocial group of which they
are part.”87
Accordingto UNICEFthe mostcommonreasongivenfor FGM issocial:no parentwants
theirdaughtertobe disgracedandexcludedfromlocal life.88
Furthermore,there isa
cultural disconnectbetweenthe UKandthe country of origin.89
SarahMcCullochfromthe
AgencyforCulture andChange Management90
accreditsthisto:“No one is givingthem
information.If theyarrive inthiscountry,theydonotknow the lawsof the land- theycome
withtheirculturesandholdontothem.”91
Thisis magnified bythe UK’sprohibitionof FGMas a specificoffence92
outwithdomestic
abuse legislation.Consequentlypracticingcommunities considerthataspectsof their
culture are beingchallenged:93
“one of the biggest barriers to the eradication of FGM is the perception… that Western
opposition to the practice is nothing more than an example of cultural imperialism.…the
current Western onslaught on Islam.”94
87WHO, Global Strategy (n38) 2
88 UNICEF (n26) 14-22
89 Alexander Topping and Mary Carson,“FGM is banned but very much alivein the UK” The Guardian
(6 February 2014) < http://www.theguardian.com/society/2014/feb/06/female-genital-mutilation-
foreign-crime-common-uk> accessed 14/10/2014
90 ACCM (UK) was established in 2008.Itis a Charity and an international non-governmental
organisation evolved froma major local charity,Agency for Culture and Change Management -
(ACCM Sheffield), whose primary rolewas to lobby for and communicate the effects of legislation
concerningFemale Genital Mutilation and other harmful traditional practices in theUK. The primary
function of ACCM (UK) is to expand this work in the new legal framework and to look at the wider
issues thataffect minority and other vulnerablecommunities. See: <http://www.accmuk.com/>
accessed 03/02/2014
91 Topping and Carson (n89)
92 Point22 of the European ParliamentResolution on combatingfemale genital mutilation 2009
(2008/2071(INI):“Calls on Member States to either adopt specific legislation on FGM or under their
existing legislation to prosecute each person who conducts genital mutilation.”
93 Colin Walker,“Why should the British public careaboutFGM?” The Guardian (14 July 2014)
<http://www.theguardian.com/global-development-professionals-network/2014/jul/14/fgm-
female-genital-mutilation-campaign-girls-summit>accessed 14/10/2014

19
Similarlythe UK’scriminalisationof ForcedMarriage underthe Anti-socialBehaviour,Crime
and PolicingAct201495
has beenregardedas:
“[L]ittle more than an exampleof the Government’shypocrisy, and its cynical use of gender
to intensify repression,criminalisation and ‘Islamophobia’…symbolicof all that is deemed to
be wrong with minorities.”96
Thus,the Governmentiscreatingabelief that:“violence againstwomeninBME
communitiesissomehowquantitativelydifferenttoviolence againstwomeninmajority
communities.”97
Furthermore, the increasingpopularityof FemaleGenital CosmeticSurgery(FGCS) has
fermented thisissue.98
The Associationof Chief Police Officers(ACPO) andthe Metropolitan
Police have issuedtheirconcernsthatthe “focuson practicingblackand ethnicminority
communitieswhilstinthe widercommunitythe ‘designervagina’private medical industry
94 JacquelineCastledine,“Female Genital Mutilation:An Issueof Cultural Relativismor Human
Rights” (2008) Mount Holyoke College <https://www.mtholyoke.edu/acad/intrel/jc.htm> accessed
12/08/2014
95 The Section.121(1)(a) of the Anti-social Behaviour,Crimeand PolicingAct2014 criminalised the
use of “violence, threats or any other form of coercion for the purpose of causing another person to
enter into a marriage” and “(b) believes, or ought reasonably to believe, that the conduct may cause
the other person to enter into the marriage without free and full consent.” Section 120(2)(a) also
made ita criminal offenceto breach a Forced MarriageProtection Order: “A person who without
reasonable excuse does anything that the person is prohibited from doing by a forced marriage
protection order is guilty of an offence.”
96 Armit Wilson,“Criminalisingforced marriagein the UK: why it will nothelp women” (2014) 50:50
InclusiveDemocracy <http://www.opendemocracy.net/5050/amrit-wilson/criminalising-forced-
marriage-in-uk-ehy-it-will-not-help-women> accessed 07/09/2014
Furthermore, the Government had been accused of “exoticising[and] stigmatising”“ghetto
legislation targeted at specific ethnic minority communities.”
Equal Communities Commission,‘Letter to Lord Lester’, 24 January 2007 cited in Armit Wilson,“The
forced marriagedebate and the British State” (2007) Vol.49(1) Raceand Class 25,32
97 Rights of Women, “Response to the Home Office-Foreign and Commonwealth OfficeConsultation
on Criminalisation:‘Forced Marriage:A Wrong Not A Right’” (5 December 2009) 3.
<http://www.rightsofwomen.org.uk/pdfs/consultation/forced_marriage.pdf> accessed 23/03/2014
98 Female Genital Cosmetic surgery (FGCS) has seen a fivefold increasein the past10 years. In 2011
the NHS performed over 2000 labiaplasty procedures.Labial reduction surgery,or labiaplasty,is to
most common form of FGCS and typically involves theremoval of a portion of the labia minora.See:
House of Commons Home Affairs Committee (n2) 38

20
isflourishing.”99
Like FGM, FGCS encompassesseveralproceduresincluding:labiaplasty,100
vaginoplasty,101
hymenoplasty,102
labiamajoraaugmentation,103
vulvallipoplasty,104
G-spot
augmentation105
andclitoral hoodreduction.106
The 2003 Actprohibitsall genital surgerynotmedicallymandated.107
Therefore, itdoesnot
discriminate betweenFGMand FGCS.108
Furthermore,underBrown [1993]109
consent
cannot be usedto permitmedical proceduresthatare notin “the patent’sbestinterest.”110
99 The ACPO and the Metropolitan PoliceOfficers cited in:Secretary of State for the Home
Department: The Government Response to the second report from the Home Affairs Select
Committee session 2014-2015HC 201: Female Genital Mutilation:the casefor a national action plan
(CM 8979,December 2014) 38 <
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/384349/FGMresp
onseWeb.pdf> accessed 12/01/2015
100 “This involves surgery to the labia minora (inner lips) and less frequently, the labia majora(outer
lips). Labiaplasty of the labia minora is the most commonly performed GCS procedure. It generally
involves reducing the size of the inner lips so they do not protrude below the outer lips. It is also used
to correct asymmetry of the lips, where one lip is significantly different in size/length to the other.
Some women have labiaplasty because their labia cause them chafing, irritation and also limit their
participation in activities such as bike riding. However, many women also undergo labiaplasty
because they are embarrassed about the appearance of their labia.” Women’s Health, “Health
Journey” (Issue3, Women’s Health Queensland Wide Inc,2013) pg 4
<http://www.womhealth.org.au/documents/newsletter/HealthJourney0913.pdf> accessed
15/12/2014
101 “This involves tightening the inside of the vagina and the vaginal opening by removing excess
tissue from the vaginal lining.” ibid
102 “This procedure reconstructs the hymen (the thin membrane of skin that partially covers the
vaginal entrance in a virgin). The edges of the torn hymen are reconnected so that when sexual
intercourse takes place the membrane will tear and bleed.” ibid
103 “This procedure seeks to plump up the outer lips by injecting them with fatty tissue taken from
another part of the woman's body.” ibid
104 “This procedure involves the use of liposuction to remove fat deposits from the mons pubis (the
pad of fatty tissue covered by pubic hair). This results in the mons pubis being less prominent.” ibid
105 “This procedure involves injecting a substance such as collagen into the G-spot in order to enhance
its size and, therefore, theoretically also a woman's sexual pleasure.” ibid
106 “This procedure involves reducing the hood of skin which surrounds the clitoris, exposing the glans
(or head) of the clitoris that lies underneath.” ibid
107 Female Genital Mutilation Act2003 Section.1(2)
108 Secretary of State for the Home Department (n99) 14
109 Brown [1993] 2 All E.R. 75
110 In Brown, the majority concluded that consent would not be used as a defence where actual
bodily harm,or more serious injury,has been intended or caused unless on of a limited number of
recognised exceptions applied.As Cooper explains:“It is acceptable that surgical procedures are
excepted from the narrow rule as formulated by Brown. The intentional harm or wounding that is
inflicted on the patient by the medical practitioner is exempted on the grounds that it is therapeutic
purposes are in the patient’s best interest and are therefore a good reason for allowing harm to be
caused, provided that the patient has provided full, free and informed consent in advance of the
procedure. [However] not all surgical, or pseudo-surgical, procedures are exempted from the
principle…there must always be a good reason for inflicting the harm. Thus, Parliament has
determined, by its enactment of the Female Genital Mutilation Act 2003, that female circumcision

21
Moreover,Article 14 of the HumanRights Act 1998111
requires the Governmenttotake
appropriate measurestoensure that individualsandcultural groupsare beingtreated
equally. Assuch,FGCSand FGM shouldbothbe evaluatedunderthe 2003 Act.112
Thus,
eitherphysiciansare able tojustify FGCSasmedicallynecessary113
orthe activityisbeing
ignoredbythe police andprosecutors. 114
Forinstance,labiaplastyhasbeencomparedFGM
Types1 and2.115
Consequently:
“Some people in FGM-affected communities perceive a double-standard whereby FGM is
prohibited but FGCS occurs with frequency and no legal sanction. Some may take the view
that the double standard essentially allows the state to regulate what women of colour do
with their genitals while allowing white women to undergo similar procedures legally.” 116
Furthermore,the Royal College of Gynaecology hasinterpretedthe 2003 Act as permitting
“cosmeticsurgeryresultingfromdistressbyperceptionof abnormality.” 117
However,this
perceivedabnormalityisincreasingdue to:
should be unlawful as the cultural reasons for carrying out the procedure are outweighed by the
unnecessary and often lasting physical and mental suffering caused to the victim.”
Simon Cooper, “Enlightenment- the painful process of rethinkingconsent” (2012) Criminal Law
Review 188, 192
111 Human Rights Act 1998 Article14, The Prohibition of Discrimination:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.”
112 For further readingsee Avalos (n24) 78
113 ibid 17
114ACPO and the Metropolitan Policecited in:House of Commons Home Affairs Committee (n2) 38
115 Classification provided by the World Health Organisation:Type 1, Clitoridectomy and Type 2,
Excision.Women who have undergone these and other procedures may experience a loss of
sensation in the genital region which affects their sexual responsiveness.The procedure may also
resultin a loss of elasticity in thelabia and the development of scar tissue.Furthermore, all of these
conditions can resultin complicationsduringlabourand delivery.
Royal College of Obstetriciansand Gynaecologists“Ethical Opinion Paper:Ethical Considerationsin
Relation to Female Genital Cosmetic Surgery” (October 2013) 4 <
https://www.rcog.org.uk/globalassets/documents/guidelines/ethics-issues-and-resources/rcog-fgcs-
ethical-opinion-paper.pdf>accessed 21/02/2015 (RCOG)
116 Avalos (n24) 77
117 RCOG (n115) 2

22
“unrealistic, idealised images of female genital appearance are widely available in popular
culture [and] women have developed a negative perception of their genitals after
comparing themselvesto photographs in […] sources such as pornographic magazines.”118
As notedbyLisa JohnsonFirth:“Whenyouare talkingaboutFGM and the waysthat
womenabroadmay feel compelledtomodifytheirbodiesforsocial acceptance,itcannot
be lostthat [Western] womendothe same throughplasticsurgery.”119
Moreover,Shelly
questions:“Howcanplasticsurgeryto breastsor otherbodyparts inthe interestof a
sociallyconstructedunderstandingof beauty,be distinguishedfromsurgerytofemale
genitaliaforthe sake of a sociallyconstructed dignity?”120
Therefore,asassertedbyAvalos:
“There is undoubtedly a social dimension to their dissatisfaction which is not unlike the
pressure facing women in FGM-affected communities.121
[Therefore] It is difficult to argue
that a mental health exception allowing FGCS is a rational policy when the 2003 Act states
that in determining whether FGM is required as a matter of custom or ritual shall not be
taken into account.122
However,despite the assertionthatcertaintypesof FGMand FGCS are physically similar
theyhave differentcultural significance.Forinstance,FGMisa social necessity.123
In
contrast,FGCS has little relevance beyondthe womanandherintimate partner.124
Moreover, FGCSis “lesscoercive andinthat sense doesnotviolate women’shumanrights
118 ibid 3
119 Lisa Johnson-Firth,LLB., J.D.,Director of Legal Services,Tahirih JusticeChurch,VA, cited in
Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural and Medical Issues, (McFarland &
Company, Inc.,Publishers,2005) 88
120 Shelly (n14) 135
121 Avalos (n24) 78
122 ibid 77
123 Bufton refers to FGM as “mandatory” for a woman’s social and economic survival within the
practicingcommunity.
Susan Bufton, “Child Abuse: female genital mutilation acts of violence done to young girls for sexual
control”(2009) Criminal Lawyer 5, 6
See also,Avalos (n24) 78
124 Avalos ibid

23
inthe waythat FGM does.”125
Therefore,the twoprocedurescannotbe compared.
Nevertheless,there are inconsistenciesastowhatthe UK holdsas an acceptable procedure
on female genitalia.126
Thiscounterintuitive arrangementhasservedtohinderthe
applicationof the Act.
Finally, the UK’sacceptance of male circumcision andthe rejectionof ‘femalecircumcision’
iscontentious.127
Male circumcisionis“the surgical removal of the foreskinof the penis,or
prepuce”128
while female circumcisionisdefinedas:“Anothertermforfemale genital
mutilation”129
andtherefore, prohibitedbythe Act.
However, NowaOmoigui130
arguesthat“mutilatingthe clitorisinthe sense of damagingor
choppingitoff isnot the same as removingthe hood.”131
He classifies this‘lessinvasive’
125 ibid
126 Avalos (n24) 17; ACPO and the Metropolitan Policecited in:House of Commons Home Affairs
Committee (n2) 38
127 J. Steven Svoboda, “Routine InfantMaleCircumcision”in George C. Denniston, Marilyn Fayre
Milos,Sexual Mutilation: A Human Tragedy (Springer Science+ Business Media,1997) 205-215;
Shelley (n14) 134
128 National Health Service (NHS) UK: “[male] circumcision is a common practice in the Jewish and
Islamic faiths, and is also practised by many African communities as a tribal or ethnic tradition see In
the UK male circumcision is also performed for medical reasons. However, alternative treatments are
usually preferred to circumcision.”
<http://www.nhs.uk/Conditions/Circumcision/Pages/Introduction.aspx>accessed 37/03/2015
129 Oxford OnlineDictionary.< http://www.oxforddictionaries.com/definition/english/female-
circumcision?q=female+circumcision>accessed 28/03/2015
The WHO definition also encompasses femalecircumcision as a formof FGM: “Female genital
mutilation (FGM) comprises all procedures thatinvolvepartial or total removal of the external
female genitalia, or other injury to the female genital organs for non-medical reasons.”
130Nowa Omoigui,MD, MPH, FACC, is Nigerian military historian and cardiologistand has a Medical
Doctorate, a Masters in Public Health and is Fellowof the American College of Cardiology.See: Ojo,
Bamidele. Problems and Prospects of Sustaining Democracy in Nigeria (Nova Publishers,2001).
p. 230
131 Nowa Omoigui,“Protest AgainstBill H22 Outlawing“FGM" In Nigeria”(2001) Vol.1 JENDA: A
Journal of Culture and African Women Studies 3 <http://www.jenda.journal.com/vol.1/toc1.1.htm>
accessed 27/03/2015

24
formof ‘FGM’ as ‘female circumcision’ andequatesitto male circumcision.132
Therefore,
the sanctioningof one yetthe denial of the otherishypocritical.133
AsNnamuchi explains:
“The clitoral prepuceis anatomically analogous to the penile prepuce…both serve relatively
similar functions. Regarding female circumcision, neither the procedure not its
consequences resemble a clitoridectomy or other types of FGM.”134
Accordingly,the ActandWHO definitionsof FGM“mischaracterise”adiverse range of
cultural practices:
“There is a hugedifferencebetween mutilation and circumcision… to group all forms of age
old religious circumcision into one large category under the guise of medical enlightenment
of a civilisation is very unfortunate.”135
Parekhconcursthat the excisionof the male andfemaleprepuce isdirectlycomparableand
if one is permittedthe othershouldbe also.136
Moreover,SusanElmusharaf etal suggested
that:
“Ratherthan pigeon-holing every conceivableformof ritualistic genitalprocedurewithin the
WHO’s classifications, a better approach would be to classify rituals according to the
anatomical extent of the procedure.”137
132 ibid
133 Nowa Omoigui cited in Obiajulu Nnamuchi,““Circumcision”or “Mutilation”? Volunta ry or Forced
Excision? Extractingthe ethical and legal issuesin FemaleGenital Ritual”(2012) Vol.25 JusticeLaw
and Health 85, 94
134 Ibid 95
Furthermore, Slack asserts thatthe ‘harsh’consequences associated with female circumcision are
attributableto the conditions thatthe procedure is performed under rather than the procedure
itself.For instance,the lack of professional medical knowledgeand anaesthesia resultsin thegirl
strugglingwhich results in the procedure becoming more invasivethan originally intended.
Slack,“Female Circumcision:ACritical Appraisal”(1988) Vol.10 Human Rights Law Quarterly 437,
451
135 Nowa Omoigui cited in Nnamuchi (n133) 92
See also:Abdulmumini A. Oba (n16) 4
136 Parekh (n19) 276
137 Susan Elmusharaf et al (n22) 127

25
Arguably,“demonisingall formsof female circumcisionasFGMfailstoadvance the
eradicationof [FGM].”138
The legal disparitybetweenmale andfemale circumcisionhas
increasedthe lackof cooperationbetweenthe law andthe communitiesthatitsetsout to
protect.
Religionprovides the final bulwarkagainstthe Act’seffectiveness. Forinstance,the WHO
asserts:
“Even though the practice can be found among Christians, Jews and Muslims, none of the
holy texts of any of these religionsprescribes femalegenital mutilation and the practice pre-
dates both Christianity and Islam.”139
However,Mackie notesthatwhile the practice is“pre-Islamicitwasexaggeratedbyits
intersectionwiththe Islamicmodestycode of familyhonour,femalepurity,virginity,
chastity,fidelity,andseclusion.”140
Abdulmuminielaborates:
“Some have tried to dismiss the link between female circumcision and religion
generally…This view totally ignores the most elementary aspects of Usul al-Figh (Islamic
jurisprudence) generally and the methodology of deducing legal rules under Islamic law in
138 Nnamuchi (n133) 118
Moreover, UK Faith Leaders have signed a declaration makingclear thatFGM is not a religious
requirement and that none of the major faith groups support itthe practice.The UK Government
hosted a Girl Summit on the 22 July 2014 which focussed on how to tackle FGM and forced marriage
both domestically and internationally.Over 350 UK Faith Leaders and community activists have
signed the declaration which was presented to Government Ministers atthe Summit.
See: 28 Too Many, “Faith Leaders Declaration AgainstFGM and Forced Marriage”(2014)
<http://www.28toomany.org/campaigns-and-projects/faith-leaders-declaration-agaisnt-fgm>
accessed 28/03/2015;
UK Government, “Faith and community leaders unite to condemn FGM” Gov.UK (20 June 2014)
<http://www.gov.uk/government/news/faith-and-community-leaders-unite-to-condemn-fgm>
accessed 28/03/2015
140 Mackie(1996) cited in Jenkinson (n10). See also Gerry Mackie, “Ending Footbindingand
infibulation:A Convention Account” (1996) Vol.62(6) American Sociological Review999, 1005

26
particular. Many Islamic scholars find support for female circumcision in the Qur’an and
other Hadith.”141
For instance,the Hadith states:“A woman used to performcircumcision in Medina
[Madina].TheProphet(peacebeupon him) said to her: “Do not cutseverely as thatis
better forwomen and moredesirablefor a husband.”142
Thiswouldsuggestthatcuts
mandatedbyreligionare notas extreme assome wouldsuggest.However,the supportfor
these distinctionsislimitedandthe majorityof commentatorscategoricallydenythe
existence of anysuchcomparisonorreligiousjustifications.143
Forinstance,Muhammad
Munir asserts:
“[T]he arguments given in support of FGM are either not reliable, are weak or do not order
Muslimsto carry outthis practice. [The] practice is rooted in custom-come-cultural tradition
or, is a matter of personal preference [but]cannot be legitimised under Islamic law.”144
Moreover,Sara Long’scritique of the argumentsforFGM, whichincludedthe ‘dialogue
consensus,’145
concludedthatitcouldnotbe consideredatolerabletradition withinthe UK:
“FGM was found to be so contrary to many of the fundamental morals and principles
underlying western liberal society that theonly acceptableapproach can beto takea strong
stance against the position”146
[…]FGM is unacceptable in a society such as the UK where
human rights, autonomy and equality are highly valued.”147
141 Abdulmumini A. Oba (n16) 4
142 Sunan Abu Dawud, Book 41 No. 5251 cited in Imad-ad-Dean Ahman and Sami A. Aldeeb Abu-
Sahlieh,“To Mutilatein the Name of Jehovah or Allah:Legitimisation of Maleand Female
Circumcision”(translation by Federick M. Hodges) (1994) Vol.13 Medicineand Law 575-622
143 Nnamuchi (n133) 92;
See also:Long (n14) 180
144 Munir (n24) 1
145 This is the method is considered the most reliable when assessinga traditional practicewithin a
multi-cultural society.Long (n14), 186
146 ibid
147 ibid 172

27
Overall,“religionisnot…sufficientjustificationof FGM.”148
However, until there isamore
concise theological positionthe practicingcommunitieswill feel the targetof ‘Western
interference’149
andpromote itscontinuation asa“preservationof ethnicidentitytomarka
distinctionfromother,non-practicinggroups.”150
Thislack of cooperationwithinthe practicingcommunitymeansthat Frontline
Professionals (professionals) mustreportFGMin orderto combat the practice. However,
reportingby professionals isalsolow.151
There isalackof awarenessamongstrelevant
professionals of whomightbe atrisk or whohas undergone the procedure.152
Thereisalso
uncertaintyaboutthe significance of ‘cultural’ or‘traditional’values153
andapprehension
surroundingaccusationsof racism.154
Thisiscompoundedby anignorance surrounding
theirobligations towardsvictims.155
DespiteMulti-AgencyGuidelines toreportinstancesof
FGM,156
practitioners are unlikelyto doso. Thisreluctance toreporthas receivedfierce
criticism.Forinstance,RichardGibbs states:
“Cultural sensitivity has its place in tackling such crimes but any comparative study of this
issue with other European countries throws into stark reality the impression that the
148 ibid 180
149 Shelly (n14) 134
152 ibid 14
153 Dias,Gerry and Burrage (n86)
154 ibid
155 Ministry of Justice: Female Genital Mutilation:Proposal to Introduce a Civil Protection Order,
Summary of Responses (20 October 2014) 7
156 The Multi-Agency Guidelines:Female Genital Mutilation states:“FGM is a form of child-abuse and
therefore, should be dealt with as part of existing child and adult safeguarding/protection structures,
policies and procedures.”
HM Government, Multi-Agency Practice Guidelines: Female Genital Mutilation (22 July 2014) 6
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/380125/MultiAg
encyPracticeGuidelinesNov14.pdf>accessed 17/02/ 2015;
Gerry (n75)

28
balancestruck,inadvertently,in favour of assuring fears that tackling the issue will inflame
cultural or religious sensibilities.”157
On the otherhand,FGM CampaignerLeylaHussein158
hasdefended practitioners and
criticisedthe guidelinesas“unsatisfactory”anddescribed theirimplementationas
“disjointed”withadistinctlackof accountability.159
Ultimately,“advisoryguidelineshave
failedtomake anyreal difference inthe wayinwhichagenciesdeal withFGM.”160
All of
these factorshave resultedinthe lackof referralswhich hashinderedthe Act’sapplication.
Overall,itisunlikelythatFGM will be reportedto a frontline practitioneranditisequally
apparentthat a frontline practitionerisunlikelytoreportanyactivityeither.Therefore,the
Act has remainedlargelydormant.
Low levelsof reportingare compoundedbythe needtogatherevidence tosecure a
prosecution. The Directorof PublicProsecutions hasacknowledgedthata prosecution
wouldonlystanda chance of success“if the victimwaspreparedto go to court andgive
evidence.”161
Aswithsexual assaultcases,aidsexistto assistvictimsingivingevidence.For
instance,evidence maybe delivered viaweblink,frombehindascreenor bya video
recordingandjudgesandbarristersmayremove theirgownsand wigs.162
157 Richard Gibbs, “The Hardest Cut? Richard Gibbs writes on the horror that hides behind the veil of
‘cultural sensitivity’(2014) 127 Criminal Lawand JusticeWeekly 176
158 Leyla Hussein is an activeanti-FGMcampaigner.In 2013 she brought the issueof FGM into the
public home with her involvement in the Channel 4 documentary “The Cruel Cut” (n23). She has
been awarded Cosmopolitan Ultimatecampaigner Women of the Year Award 2010 and currently
received Emma Humphrey Award on her work on FGM and violenceagainstwomen/children. In
2011 she won the Emma Humphrey Award. See: <http://www.dofeve.org/leyla-hussein.html>
accessed 03/02/2015
159 Topping (n89)
160 Charlotte McLeod, “Ending FGM in the UK: Failures of the pastand hope for the future” (Policy
Exchange, 14 February 2014) http://www.policyexchange.org.uk/medial accessed 17/07/2014
162 ibid

29
Nevertheless,avictimmaybe unwillingtogive evidencethatcouldincriminateher
family.163
Section.169(2) of the SeriousOrganisedCrime andPolice Act2005 allowsthe
court to issue acourt summons and compel avictimto testify if twoconditionsare met:164
“if a person is likely to be able to give evidence likely to be material evidence, or produce
any document or thing likely to be material evidence for the purpose of any criminal
proceedings before the court [and] “the court needs to be satisfied that it is in the interests
of justice so to do.”165
However,the prospectof givingevidence couldbe tootraumaticforthe victimresultingin
“the risk to the victim[being] sogreatthatit isnot intheirinterestforthe prosecutionto
go ahead.”166
Moreover,anyevidence offeredbythe victimmaybe unreliable due totheir
age or inabilitytoidentifythe ‘cutter’.167
Oftenthe “traumaticnature of the act” means
that victimsare unable toprovide thiskeyinformation.168
Furthermore, the practicing
community andthe victim’srelativesare unlikelytoprovide evidence willingly.Instead,
investigatorsare confrontedwitha‘communitywall of silence.’169
Alternatively,“prosecutorsshouldconsider the needforanexpertwitness.”170
However,
thissource of evidence has provedunreliable.
163 ibid 14
164 Section.169(2) Where a justiceof the peace is satisfied that—
“(a)any person in England or Wales is likely to be able to give material evidence, or produce any
document or thing likely to be material evidence, at the summary trial of an information or hearing of
a complaint by a magistrates' court, and
(b)it is in the interests of justice to issue a summons under this subsection to secure the attendance of
that person to give evidence or produce the document or thing,
the justice shall issue a summons directed to that person requiring him to attend before the court at
the time and place appointed in the summons to give evidence or to produce the document or thing.”
165Crown Prosecution Service, Prosecution Policy and Guidance:Witness Summons and Warrants.
http://www.cps.gov.uk/legal/v_to_z/warning_of_witnesses/#a10 accessed 26/03/2015
167 ibid
168 ibid 14
169 ibid 13
170CPS (n165) Female Genital Mutilation,Evidential Considerations,ExpertWitnesses.
<http://www.cps.gov.uk/legal/d_to_g/female_genital_mutilation/#a05> accessed 26/03/2015

30
To date,the onlyreportedcase involvingFGM171
isthe civil law case of Leeds City Council v
M, F,B, G [2015].172
Thisconcernedtwochildren,B,aboy,and G, a girl.The issue was
whetherornot G, age 3, had beensubjecttoFGM.173
Duringthe proceedingsmedical
evidence wasprovidedbythree ‘expertwitnesses’:DrAlisonShare,aConsultant
CommunityPaediatrician;174
DrComfortMomah MBE, a registeredMidwife175
and
ProfessorSarahCreighton,aConsultantObstetricianandGynaecologist176
andConsultant
AdolescentGynaecologist.177
BothDrShare and Dr Momah acknowledgedthe limitsof their
expertise.Forinstance,DrMomah’sprimaryexpertisewasinrelationtochildrenrather
than infantsandDr Share,despite havingexpertiseinchildsexualabuse,didnotdeclare
herself tobe a medical expertinFGM.178
Nevertheless,the overall standardof evidence
was troubling.
On the one hand,Sir JamesMunby,Presidentof the FamilyDivision,describedProfessor
Creighton’sevidence asclear,consistentandcarryingconviction179
onthe other,he
criticisedDrShare’sas:
“[W]ell below the standard required of a medical expert […] demonstrating a lack of
awareness and training within the medical profession on the issue of FGM [and was]
confused contradictory and wholly unreliable.”180
171 Felicity Gerry, “Expert evidence in FGM Cases”(2015) Vol.179 Criminal Lawand JusticeWeekly,
<http://www.criminallawandjustice.co.uk/blog/Felicity-Gerry-QC-horrors-FGM>accessed
26/03/2015
172 Leeds City Council v M, F, B, G [2015] EWFC 3
173 ibid para 4
174 At St James’s University Hospital Leeds.
175 Dr Momah is employed by Guy’s and St Thomas Hospital NHS Foundation Trustin London. Also,
sheis not a medical doctor; her doctorate is an honorary doctorate from Middlesex University.
176 At University College Hospital in London.
177 At Great Ormond Street Hospital.
178 Leeds (n172) para 17
179 ibid para 46
180 ibid para 42

31
He alsocondemnedDrMomah’sreport as “worse thanuseless”181
andsubmittedthat:
“neitherDrShare norDr Momah has beenable togive a clear,accurate or consistent
account of what theythoughttheywere seeingwhenexaminingG.”182
Inconsistencies
includedthe physical descriptionsof the child’sgenitalsandwhetherthe WHOor UNICED
FGM typologywasusedtocategorise the injuries.183
Moreover,itisparticularlytroubling
that bothDr Momah and Dr Share had completedphysical examinations of Gwhile
ProfessorCreightonviewedthe examinationviaavideo yetherevidence wasconsidered
the most reliable.184
Inshort, Munby observed thatthere is“a dearthof medical expertsin
thisarea, particularlyinrelationtoFGMin youngchildren”185
and“there isan awareness
problemanda needformore educationandtrainingof medical professionals,including
paediatrics.”186
He furtheremphasised the needforconsistencyinthe understandingof the
typesof FGM187
and that the WHO classificationshouldbe usedasstandard.188
Furthermore,careful planningof the processof examinationisrequiredtoensure thatan
expertisinstructedatthe earliestopportunity:189
“referrals should be made as early as possible to one of the specialist FGM clinics [and]]an
examination recorded with the use of a colposcope so that the images can be reviewed
subsequently by an appropriate expert.”190
Finally,itisvital thatthose performingthe examinationaccuratelyrecordtheir
observations191
andclearly diagnose the type of FGMobserved.192
181 ibid para 45
182 ibid para 48
183 ibid para 22
184 Ibid para 31 and 46
185 ibid para 79 and paras 27-28.At present there are only 12 specialistFGMclinicsthroughoutthe
country, of which six arein London. The University CollegeHospital is theonly specialistpaediatric
FGM clinicin the country.
186 ibid para 79
187 ibid
188 ibid
189 ibid
190 ibid

32
Moreover, incivil law the burdenof proof ison the “balance of probabilities”;alower
thresholdthandemandedbythe criminal courts.Nevertheless,itcannotbe assertedthat
everycase of FGM will experience similardifficulties. Munbydescribedthe case as“unusual
and complex.”193
Moreover,the type of suspected FGMwasverysubtle- itwasallegedthat
the victimhad a small scar nearher clitoris andhadsufferedaType 4 FGM (WHO
classification).194
Therefore, determiningFGMin thisinstance wouldbe more difficultthan
establishingthe occurrence of another.However,if Munby’s recommendationsfor
improvingthe gatheringanddeliveryof medical evidence are entertained,the process
shouldbecome standardisedandincrease itsreliability.Therefore,the abilityto
successfullyidentifyFGMand prosecute acase wouldbe increased.
Additional challengesincludethe procurementof evidence whenthe procedure is
committedabroad.195
Referredtoas“the cuttingseason”school holidayssee asurge inthe
numberof girlstakenabroad andsubjectedtoFGM.196
Furthermore,whilethe practice is
traditionallyinstigatedbythe victim’sfemalerelativesitcannotbe assumedthatthe parent
performedthe actual mutilation.197
Thiscombinedwiththe reluctanceorinability of victims
to identifythe cuttershasledtothe authoritiesbeingunable tomountaprosecution.198
Therefore,there isthe forensicchallenge toprove a) whoinflictedthe injuryandb)who
191 ibid.Including,makinguseof diagrams and drawings where appropriate.
192 ibid;For further commentary of the case see: For further readingsee: Gerry (n171)
193 Leeds para 2
194 ibid para 30
However, the scar’s actual position and even existence was a main point of disputeand
inconsistency amongthe witnesses.
196 Rocco Blume, “Cutting season’heightens threat for girls atrisk of FGM” PlanUK (25 July 2014) <
http://www.plan-uk.org/news/blogs/plan-uk/Cutting-season-heightens-threat-for-girls-at-risk-of-
FGM/> accessed 05/12/2014.
Plan is a global children’s charity.Its campaign,“BecauseI am a girl”,works towards ending violence
againstgirlswith a focus of forced/child marriages and FGM.< http://www.plan-uk.org/because-i-
am-a-girl/about-because-i-am-a-girl/>accessed 05/12/2014
197 Dias,Gerry and Burrage (n86); Richard Gibbs (n157) 177
198 Dias ibid;Gibbs ibid.

33
was partyto it.199
Asthe Intercollegiate Group200
have criticised:“The law doesnotsee FGM
as a criminal derelictionof parents’andguardians’dutytoprotecttheirchildren.”201
Withoutthe initial reportingof anoffence,the opportunitytoconductan investigationis
reduced.Equally,the reduced evidencegatheringcombinedwithalackof expertwitnesses
has made the investigationandprosecutionof FGMdifficult.Consequently,the failed
enforcementof the Act hasnullifiedit.202
Overall,the failureof the 2003 Act can be attributedtofourfactors.Firstly,those most
likelytoreportthe offence are reluctanttodoso. Secondly,alackof trainingand
awarenessamongprofessionalshasresultedinthisabuse goingundetectedand
unchallenged.Thirdly,there isalackof specialistexpertwitnesseswithinthe fieldof FGM
and fourthly,there isaperceiveddouble standardamongUKlaw resultinginhostilityand
resentmenttowardsit.Collectively,these factorshave allowedthe 2003 Act to remain
dormant.
Prosecutionsare essential:203
“Without evidence that FGM will be robustly prosecuted, the law’s deterrent effect is
nullified…If there’s a genuine prospect of…those involved in the mutilation[being] sent to
prison, a rigorously enforced FGM law would have a serious deterrent effect.”204
199Dias ibid;Felicity Gerry,“FGM-Let’s Talk About Vaginas”Criminal Lawand JusticeWeekly (11 July
2013) < http://www.criminallawandjustice.co.uk/features/FGM-%E2%80%93-Let%E2%80%99s-Talk-
About-Vaginas> accessed 13/08/ 2014
200 IntercollegiateGroup, “TacklingFGM in the UK: IntercollegiateRecommendations for identifying,
recording,and reporting” (London, Royal College of Midwives,2013)
The IntercollegiateGroup is made up of: Royal College of Midwives,Equality Now, Royal Collegeof
Obstetricians & Gynaecologists,Community Practitioners' and Health Visitors' Association and the
Royal College of Nursing
201 IntercollegiateGroup cited in House of Commons Home Affairs Committee (n2) 39
A rigorous prosecution systemwould assistin bringingthe UK in-linewith its international
obligations:“States must not only respond to FGM but respond in an effective way. Passing
legislation, as the UK has done, remains an insufficient response if implementation is not effective in
practice.”

34
However,the UKis alsorequired tocreate an “effectiveanti-mutilationmechanismthat
operatesina multi-level andmulti-agencyway(legal,administrative,educational,
health).”205
Furthermore, EfuaDorkenoo,OBE,206
hasassertedthatpractice measuresmust
comprise of legal andnon-legal mechanismsthatforma “joined-upsystemwithafocuson
protection,preventionandprosecution.”207
Inshort:“there needstobe a proper
understandingthatthe lawdoesnotoperate inisolationfrom the widercommunity.”208
Therefore,combatingFGMwill require acombinedeffortof law enforcement,education,
awarenessraisingcampaignsandcommunityengagementprogrammesthatfocuson
changingattitudesandempoweringpeople tochallenge the practice.Itisagainstthis
backdropthat the provisionsof the Bill are evaluated.
See also:International Association of Women Policecited in House of Commons Home Affairs (n2)
12: “A successful prosecution […] could assist women within affected communities to resist pressure
to subject their daughters to FGM” and the Parliamentary Under Secretary of State for Public Health:
“[A prosecution] would send an important signal that the law is taken seriously and will be enforced.”
206Efua Dorkenoo (1945-2014) was an avid anti-FGMcampaigner and has been referred to as the
“mother of the worldwide movement to end FGM.” The Guardian,“Efua Dorkenoo Obituary” The
Guardian (22 October 2014) <http://www.theguardian.com/society/2014/oct/22/efua-
dorkenoo#img-1> accessed 24/03/2015;
Efua Dorkenoo was a Ghanaian-British campaigner againstfemalegenital mutilation (FGM) who
pioneered the global movement to end the practiceand worked internationally for more than 30
years to see the campaign "move from a problem lackingin recognition to a key issuefor
governments around the world."
BBC News World,“Efua Dorkenoo remembered: My Mother, mentor and wisdom” BBC News (27
October 2014) < http://www.bbc.co.uk/news/world-29727872> accessed 02/02/2014
207 Efua Dorkenoo, OBE (6 September 1949 – 18 October 2014) cited in Topping (n89)

35
Chapter3: The SeriousCrimesBill [HL] 2014-15
The Bill seekstoremedy the failingof the Actbymakingit more proactive through:
extendingitsprotectiontothose withoutsecure immigrationstatus;offeringlifelong
anonymityfora victim;introducingparental liability;introducingFGMPOs209
andimposing
mandatoryreportingby professionals.
The “jurisdictional loophole”inthe 2003 Act “allowedchildreninthe UKwithoutsecure
immigrationstatus,tobe takenoverseesandmutilated.”210
Chairwomanof the BHRC,
KirstyBrimlownoted:“Thisgapinthe law isindefensibleandfailstoreflectthe highly
mobile nature of the affectedcommunities.”211
Tocombat this,Clause.69(1)(b)212
of the Bill
amendsSection.4of the Act andextendsthe jurisdictiontocoverprohibitedacts
committedabroadbya UK citizenora personwhois resident213
in the UK.214
Section.3of
the Act215
is alsoamendedtocoveracts of FGM performedona UK national or resident.216
Thisamendmentbringsthe UKin line withitsobligationunderthe Istanbul
Convention217
andhasbeenwellreceived.Forinstance,FelicityGerrynoted:“it[was]
absurdthat FGM law[didnot] not apply [tonon-Britishnationals].”218
However,this
extensionof jurisdictionwill onlybe fruitfulif the legislationisappliedinpractice.
209 Female Genital Mutilation Protection Orders
210 Kirsty Brimelowand Zimran Samuel, “UK is failingto meet international obligations on FGM” 42
Bedford Row (10 March 2014) < http://www.42br.com/uk-is-failing-to-meet-international-
obligations-on-fgm/>accessed 01/08/ 2014
211 ibid
212 Clause.69,Offence of female genital mutilation:extra-territorial acts
213 “UK resident” is defined in Clause.69(1)(c) as an individual who is “habitually resident in the UK.”
214 Clause69(1)(b) “in section 4 (extension of sections 1 to 3 to extra-territorial acts), in
subsection (1) omit “permanent””
215 The offence of assistinga non-UK person to mutilate a girl’s genitalia overseas.
216 Clause69(1)(a) “in section 3 (offence of assisting non-UK person to mutilate overseas a
girl’s genitalia), in subsections (1) and (2)(a) omit “permanent””
See also:Home Office, “Serious Crime Bill FactSheet- Female Genital Mutilation”(November 2014) <
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/370942/Fact_shee
t_-_Serious_Crime_Bill_overview_-_Commons_Intro.pdf> accessed 20/01/2015
218 Dias,Gerry and Burrage (86)

36
Promisingly,the Bill’sotherprovisionsincrease the likelihoodof aprosecutionandpromote
prevention.
A majorhurdle forvictimsinseekinghelpwasthe backlashthatan accusationwouldhave
on theirfamily.219
Therefore,Clause.70of the Bill prohibitsthe publicationof any
informationthatmightleadtothe identificationof avictim.220
A victim’sanonymitywill
commence once an allegationhasbeenmade andlastthe duration theirlifetime.221
This
provisionissimilartothe anonymityprovided tovictimsof sexual offencesunder the
Sexual Offences(Amendment) Act1992.222
Therefore,the provisionwouldbringthe
protectionof FGMvictimsinline withotherabuse legislationandcomplementexistingaids
designedtoempowervictimstogive evidence.223
Overall,anonymity wouldnotonly
protectthe victimbut encourage hertoreport the offence andgive evidence.224
However,
anonymityisnotextendedtopeople otherthanthe victim.Therefore,community
memberswill remain unwillingorunable toreportan offence.225
To lessenthis burden,Clause.71(2) instructsthat“if an offenceof FGM is committed
againsta girl underthe ageof 16, each person who is responsibleforthe girl at the time
thatFGM occurred will be guilty of an offence.”226
The maximumpenaltyforthiswill be
219 Tina Rosenberg (n81)
220 Clause.70 “Anonymity for victims of female genital mutilation
(1) After section 4 of the Female Genital Mutilation Act 2003 insert-
“4A Anonymity of victims Schedule 1 provides for the anonymity of persons against whom a female
genital mutilation offence (as defined in the schedule) is alleged to have been committed.”
221 Clause.70(2)
“Schedule 1- Anonymity of Victims…(2) “No matter likely to lead members of the public to identify the
person, as the person against whom the offence is alleged to have been committed, may be included
in any publication during the person’s lifetime.”
222 Sexual Offences (Amendment) Act 1992 Section.1(1)(a) and Section.2(1)(a)
223 For instance,a girl would not only be ableto give evidence privately or from behind a screen but
would have increased confidencethat her identity would remain anonymous to the wider
community thus reducing apprehension in the victim.
224 Home Office,Serious Crime Bill FactSheet (n216)
225 See Chapter 2
226 Under Clause.71(2),An adultis held responsiblefor a girl ageover 18 where the person “has
assumed (and not relinquished) responsibility for caring for the girl in the manner of a parent.”

37
sevenyears’imprisonment,afine orboth.227
To be ‘responsible’ forthe girl the personwill
holdparental responsibilityandhave ‘frequentcontact’withher.228
Where the victimis
aged18 or overa personwill be ‘legallyresponsible’forherif theyhave assumed
responsibilityforhercare “in the mannerof a parent.”229
The Clause hasbeenwell received
by commentators whopreviouslycriticised the lackof parental responsibility.Forinstance,
the Intercollegiate Group230
onFGMnoted: “there isthe needtoshiftresponsibilityonto
parents.”231
Thiswill notonly deterparentsfromthe practice butwouldmake themmore
vigilanttothe riskpresentedbyothercommunitymemberswhopromote the practice.232
However,there isconcernthatparentscouldbe prosecutedforan offence thatthey
neithersanctionednorinstigated.AsDiasnoted:“Sometimesmutilationsare atthe
instigationof membersof the widerfamilygroupandcontraryto a parent’swish.”233
This,
as Richard Gibbsarguedinhiscritique of Frenchlegislation,may“putthe parentsin
jeopardyof beingprosecutedforsomethingthattheyhadnotagreedto or acquiesced
in.”234
However, itisa defence if:“[A]ttherelevanttime, they [the defendant] did notthink
thatthere wasa significantrisk of FGM being committed,and could not reasonably have
been expected to be awarethatthere wasany such risk, or (b) they tooksuch stepsas he or
she could reasonably havebeen expected to taketo protectthe girl frombeing the victim of
FGM.”235
Furthermore,the requirementfor“frequentcontact”ensuresthata person, who
227 Clause.72(1)(4) “(a) on conviction on indictment, to imprisonment for a term not exceeding seven
years or a fine (or both), (b) on summary conviction, to imprisonment for a term not exceeding 12
months or a fine (or both).”
228 Home Office,Serious Crime Bill FactSheet (n216). Where the victimis under 16 responsibility
attaches itself to the persons with parental responsibility to the child For instance,mothers, fathers
married to the mothers at the time of birth and guardians.
229Home Office,Serious Crime Bill FactSheet (n216). For instance,if the child is visitingother
relatives they will assumeresponsibility to protect the child from risk.
230 The IntercollegiateGroup is made up of: Royal College of Midwives,Equality Now, Royal College
of Obstetricians & Gynaecologists,Community Practitioners' ,Health Visitors' Association and the
Royal College of Nursing.
231 IntercollegiateGroup cited in House of Commons Home Affairs Committee (n2) 39
232 Gibbs (n157) 177
233 Dias,Gerry and Burrage (86)
234 Gibbs (n157) 176
235 Section 71(2) After section 3 insert-

38
has legal parental responsibilityforagirl buthas little orno contact withher,wouldnotbe
liable.236
Finally,the requirementthatthe personshouldbe in loco parentis isintendedto
ensure thata personwhois lookingafteragirl for a veryshort periodwouldnotface
liability.237
Similarly,inthe 1970’s France was confrontedwith“aninabilitytomountprosecutionsand
the complete inabilityandrefusalof some sectionsof acommunitytodisclose the
identitiesof childmutilators.”238
Inresponse,the Frenchauthoritiescriminalisedactsof
omission.239
Since 1979 France has achievedmore than40 prosecutionsresultinginthe
punishmentof over100 parentsand ‘cutters.’240
Thisdemonstratesthatsimilarlegislation
may workinthe UK. However,this successmaybe “partlydue to a highvolume of
mutilatedwomenandgirls”inFrance.241
Furthermore,while the provisionhasplayed“a
vital role inencouragingparentstoabandonthe practice,”242
there are keydifferences
betweenthe French andUK legal systems.
“(5) it is a defence for the defendant to show that-
(a) A]t the relevant time, they did not think that there was a significant risk of FGM being
committed, and could not reasonably have been expected to be aware that there was any such
risk, or
(b) ; or they took such steps as he or she could reasonably have been expected to take to protect the
girl from being the victim of FGM”
Home Office,Serious Crime Bill FactSheet (n216)
236 Home Office,Serious Crime Bill FactSheet (n216)
237 ibid
238 Gibbs (n157) 176
239 Failureto assista person in danger of FGM can resultin a heavy fine or imprisonment. UCL
Graduate Law Society cited in Barrister Linda Weil-Curiel cited in Houseof Commons Home Affairs
(n2) 16
241 Gerry (n199); The European Institute for Gender Equality in their 2014 Report: “A prevalence
study (published in 2007) found that up to 61,000 women older than 18 years living in France might
have been subjected to FGM. This number does not take into account the undocumented population,
nor does it take into consideration the population under 18 years old that might be at risk of FGM.
European Institute for Gender Equality:Current Situation for Female Genital Mutilation in France
(PublicationsOffice,2014) 3
<http://eige.europa.eu/sites/default/files/documents/Current%20situation%20and%20trends%20of
%20female%20genital%20mutilation%20in%20France_EN.pdf> accessed 30/03/2015
242 Barrister Linda Weil-Curiel cited in House of Commons Home Affairs Committee (n2) 16

39
Firstly,France hasno specificlawsagainstFGM.Instead,perpetratorsare prosecutedunder
the general provisionsof the Criminal PenalCode. 243
Inparticular,Articles221−2, 222−3
and 222−5, refertoacts of torture and barbarity244
and Articles 222−9 and 222−10 which
referto intendedbodilyharmcausingpermanentinfirmityormutilation. 245
Furthermore,
committingFGMon a minorisconsideredanaggravatingcircumstance andincreasesthe
penalty.246
AccordingtoPolderman,the decisiontonotenact specificlegislationagainst
FGM wasdesignedtominimise the risk of stigmatisingpractisingcommunities.247
Secondly,PoldermanhasattributedFrance’ssuccess totheir“practice of prosecutingthese
casesin the highestcriminal courts”and“the fact that civil societyorganisation(CSO) can
playa keyrole in prosecutionsandtherefore,are notwhollydependentonthe public
prosecutor.”248
The European Institute forGenderEquality hasnoted:“The additionof a
specialistCSOhas assistedprosecutionsin France.”249
Thirdly,theirNational ActionPlanonViolence againstWomen2011−2013 addressedFGM
specifically andprovidedadetailedsetof budgetedmeasuresanddevolvedthe authority
for itsimplementationtothe Regional DirectoratesforWomen’sRights andEquality.250
Combinedwithafocuson“strong educational andawarenessraisingcampaigns”251
this
decentralisedapproachtowardsprosecution,preventionandprotectionhasaidedFrance’s
243 Gibbs (n157) 177; UCL Graduate Law Society cited in House of Commons Home Affairs Committee
(n2)16
244 European Institute for Gender Equality,FGM in France (n241)1
245 ibid
246 ibid
247 Sophie Polderman, “Combating Female Genital Mutilation in Europe: A ComparativeAnalysis of
Legislation and Preventative Tools in the Netherlands, France, the United Kingdom and Austria ”
(2006) Unpublished Master’s Thesis,University of Vienna, 36 < http://www.stopfgm.net/wp-
content/uploads/vor2013/grundlagen/SPoldermansFGMinEurope.pdf>accessed 21/02/2015
248 ibid
249 European Institute for Gender Equality:Good Practices in combatingfemale genital mutilation
(Luxembourg: PublicationsOfficeof the European Union, 2013) 18
<http://eige.europa.eu/sites/default/files/Good%20practices%20in%20combating%20female%20ge
nital%20mutilation.pdf>accessed 30/03/2015
250 The authority to implement this was devolved to Regional Directorates for Women’s Rights and
Equality.
European Institute for Gender Equality,FGM in France (n241) 3
251 Avalos (n24) 47

40
abilitytoeffectivelytackle FGM.Incontrast,the UK’s“Case for a national actionplan”was
onlypublishedinJune 2014.252
Fourthly,the Frenchsystemalsoincludesamandatorygenital examinationof girlsunder
the age of six253
andimposesadutyon medical andsocial workerstoreportcasesof
FGM.254
However,despite the IntercollegiateGrouprecommendingasimilarprovision,255
the UK Governmenthasbeenreluctanttoimplementsuchprocedures.256
Forinstance,the
ChildrenandFamiliesMinister, EdwardTimpson, describedthe checksas:“A hugely
intrusive practice uponyounggirls.”257
Nevertheless,France’s“no-nonsenseapproach”
beenpraisedforthe reductioninthe practice aswell asthe increasedprosecutionrate.258
While the successof the Frenchapproach isappealing;“todate,nostudyhas been
publishedthatwouldprovide afullyreliable andexhaustive chronologyof FGMcourt cases
252 House of Commons Home Affairs Committee (n2)
253 ibid 16
254 “In France, general law with regard to professional secrecy and disclosure may be applied
to report cases of performed or planned FGM. Article 226−14 of the Penal Code concerns medical and
social workers and other professionals usually bound by secrecy. They are requested to report
physical or psychological abuse perpetrated against children or persons unable to protect themselves
due to their age or incapacity. The same applies to physical or psychological abuse noticed by a
physician within the frame of their daily practice and supporting the strong presumption that
physical, sexual or psychological violence has been perpetrated against the patient. Sexual
mutilations have been explicitly categorised as physical abuses. In the same line, Article 44 of the
Code of Medical Ethics, annexed to the Code of the Public Health, states that physical or
psychological abuses should be reported to the appropriate (medical, social or legal) authorities,
although protective measures have to be taken with 'caution and discernment'.”
European Institute for Gender Equality,FGM in France (n241) 2
255 RCM, RCN, RCOG, Equality Now, UNITE, TacklingFGM in the UK: Intercollegiate
Recommendations for identifying, recordingand reporting (London: The Royal College of Midwives,
2013) < https://www.rcm.org.uk/sites/default/files/FGM_Report.pdf> accessed 05/10/2014
“[…] it is important to underline the principle that in specific institutions where there is a suspicion
that girls have undergone FGM, FGM assessments and medical examinations are helpful and it
should not be seen as abusive to undertake such examinations […] In the experience of the Royal
College of Paediatricians and Child Health (RCPCH) Child Protection Standing Committee, children
and their parents do not find such examination traumatic”
256For instance,the House of Commons Home Affairs Committee (n2) 17 concluded that:
“it would be a disproportionate response to introduce such a universal system in the UK.”
257 ibid 16
258 Felicity Gerry, QC interviewed in a Channel 4 Documentary, “The Cruel Cut” (n23)

41
since the firstone wasreportedin1979.”259
Therefore,itis hard to determinewhich
activitiesare the mosteffective inFrance andergowhichshouldbe mimicked.
Furthermore, underthe DomesticViolence,Crime andVictimsAct2004 (2004 Act) a duty
of care alreadyexiststowards adultsinahouseholdwith childrenorvulnerable adults.
Therefore,the needforafurther legislation canbe questioned.Section.5(1) of the 2004 Act
createsan offence of causingorallowingthe deathof a childorvulnerable adult“asa
result of the unlawfulactof a person”260
who“wasa memberof thesame household as
V”261
“had frequentcontactwithhim”262
andthat “at the time of that act there wasa
significantrisk of seriousphysical harmbeing caused to V by the unlawfulactof such a
person”where ‘V’isa childor vulnerableperson.263
The 2004 Act was intendedtoapplyin
situationswhere itisclearthatone of a numberof adultsina householdisresponsiblefor
the deathof a childbutit cannot be provedwhichadultisresponsible.264
Under
Section.5(6) “act”“includes a course of conductand also includes omission.”However,the
provisionwasextendedin2012 to “cover causing orallowing serious physicalharm
(equivalentto grievousbodily harm) to a child or vulnerableadult.”265
Therefore,the
provisioncouldencompassFGMandis a possible avenue forprosecution.266
Moreover,the
2004 Act doesnotrequire the prosecutortoprove whichhouseholdmemberwas
responsible forthe death.Rather, they needonlyprove thatthe personchargedwas
aware,or oughtto have beenaware,of a foreseeablerisktothe victim, andfailedtotake
259 European Institute for Gender Quality,Good Practices in combatingFGM (n249) 18
260Domestic Violence, Crime and Victims Act 2004 Section.5(1)(a)
261ibid Section.5(1)(a)(i).‘V’ refers to the Victim
262ibid Section.(5)(1)(a)(ii)
263ibid Section.5(1)(c)
264 Explanatory Notes to the Domestic Violence, Crime and Victims (Amendment) Act 2012.Para 4
265 ibid Para 5; Domestic Violence, Crime and Victims (Amendment) Act 2012 Chapter 4: “An Act to
amend section 5 of the Domestic Violence, Crime and Victims Act 2004 to include serious harm to a
child or vulnerable adult; to make consequential amendments to the Act; and for connected
purposes.”
266 Avalos (n24) 55

42
protective measurestocombatthe risk.267
Accordingto Avalos, thisActcouldbe usedto
secure a prosecutionagainstparents who‘allow’FGMto occur on theirchildwhere itcan
be shownthat:
“a) a girl faced a significantrisk of FGM, (b) therisk to FGM wasforeseeableto the parent
charged,(c) theparentcharged (i) wasawareoroughtto havebeen aware,of the risk to
the girl and (ii) failed to protectthe girl fromrisk.”268
However,she alsonotesthatthe reachof the 2004 Act is limited.269
Firstly,allowingserious
bodilyharmto occur carriesa maximumsentence of 10 years270
whichis fouryearsless
than the 2003 Act.271
Moreover,the act that leadsto the deathor seriousbodilyinjury
musthave beencommittedbyanotherhouseholdmember.272
Therefore,there wouldbe
no perpetratorif the childwassubjecttoFGM outside of the household.273
Furthermore,it
isunclearwhetheritcouldbe appliedtoparentswhoarrange to have FGM performed
overseas.274
Therefore,the 2004 Act islimitedincomparisontothe 2003 Act. Nevertheless,
the lack of prosecutionbyeitherprovisionrendersbothActsineffective atcombatingFGM
and more suitable legislationisrequired.
Overall,‘parental liability’hasshiftedthe debate away fromwhomutilatedagirl to why
she had not beenprotected.275
Castingthe netwiderinthiswayincreasesthe chance of a
268 Avalos (n24) 55
269 ibid 56
271 Female Genital Mutilation Act2003 Section.5 “A person guilty of an offence under this Act is
liable— (a)on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine
(or both)”
272 Domestic Violence Crimes and Victims Act 2004 Section.5(1)(a)(ii)
However, under Section.5(7) where the unlawful actresults in the death of ‘v’: “A person guilty of an
offence under this section is liable on conviction on indictment to imprisonment for a term not
exceeding 14 years or to a fine, or to both.”
273 Avalos (n24) 56
274 The Domestic Violence Crimes and Victims Act 2004 is silentin relation to acts covered outwit the
UK. See: Avalos (n24) 56
275 Under the Female Genital Mutilation 2003 Act, where a child is found to have been mutilated, itis
the forensic challengeto prove a) who inflicted the injury and/or b) who was party to it.

43
prosecution276
andalleviatesthe needforavictimto give evidence oridentifywho
performedorinstigatedthe procedure. Overall,the Clausewill aidprosecutions andactas
a deterrenttoperpetrators.277
To add furtherteethtothe legislationthe BHRC recommendedthe introductionof FGMPOs
to improve the UK’sabilitytotackle FGM.278
In July2014 the Prime Minister,David
Cameron,launchedaconsultationintointroducingaspecificcivillaw measure forthe
protectionof victimsand potential victimsof FGM.279
In line withthe BHRC
recommendation he assertedthatthe remedywouldbe closelymodelledonforced
marriage protectionorders (FMPO) available underthe ForcedMarriages(Civil Protection)
Act 2007 (2007 Act).280
Accordingto the BHRC:
“An obvious overlap exists between FGM and Forced Marriage. Both are human rights
violations inflicted on some of the most vulnerable girls. Both intervene in the sexuality of
young women. Both remove the autonomy and seek to control. Sometimes FGM and [FM]
go hand in hand.”281
KirstyBrimelow,elaborates:
“Presently,the UKlacks sufficiently tailored or targeted legal powers to assist in intervening
in cases where FGM is suspected…a victim-centred approach was at the heart of the
See: Dias,Gerry and Burrage (n86)
276 Barrister Linda Weil-Curiel cited in House of Commons Home Affairs Committee (n2) 16
277 See the Children and Families AcrossBorders,the only non-government organisation in the UK set
up specifically to deal with child protection cases which involvethe UK and one or more countries.
Cited in House of Commons Home Affairs Committee (n2) 39; See also:Dias,Gerry and Burrage (n86)
278 The recommendation was the firstin a listof twelve recommendations.
BHRC, Report to the Parliamentary Inquiry (n3) 3
279 The Consultation soughtcommentary on the particularsof such a provision and its application in
practice.Ministry of Justice(n155)
280 In Scotland,the relevant Act is the Forced Marriage(Protection and Jurisdiction)(Scotland) Act
2011; ibid 5
281 BHRC, To the Parliamentary Enquiry (n3) 4

44
parliamentary discussions that led to the... [2007 Act]…similar considerations should be
applied to the current debate.”282
Such an orderwouldbe:“(1)‘victim-centric’,directedatprotection of the child…(2) flexible
and capable of beingtailoredtothe specificfactsof the case;(3) neverthelessbacked by
criminal sanctionforbreach…tofocusthe child’scarerson theirdutyto protect.”283
Both
the MuslimWomen’sNetworkandthe ACPOconcur“such acts have beenusedmore than
600 timestodate.”284
The introductionandsuccessfulapplicationof forcedmarriage
protectionordersreceivedconsiderable praise285
andwithinitsfirstyearof enforcement286
86 protectionordershadbeenissued287
increasingto339 bythe endof June 2011.288
Furthermore,85%of the consultation’srespondentssupportedthe introductionof asimilar
civil protectionorderforFGM.289
Clause.72(2) of the Bill provides thatthe Courtmaymake an FGMPO onan applicationby
the potential victim, arelevantthirdparty,orbyany other personwiththe leave of the
Court.There are alsocircumstanceswherebythe courtmaymake an orderwithoutsuchan
applicationwhere:
“a) any other family proceedingsarebeforethe court(“the currentproceedings”),
282 Brimelow and Samuel (n210); See also:Ministry of Justice(155) 5
283 BHRC, To the Parliamentary Enquiry (n3) 3
285 John Fotheringham has praised theorders as being“scarcely limited atall.”
John Fotheringham, “Forcing: the issues”(2012) The Journal of the Law Society of Scotland <
http://www.journalonline.co.uk/Magazine/57-1/1010643.aspx#.VSq3i7fjgdU>accessed 28/02/ 2014
Furthermore, FirstMinister Nicola Sturgeon (then Deputy FirstMinister),speakingduringa visitto
the Shakti Women’s Aid in Edinburgh, praised the protection orders for “confining abusive behaviour
to the history books [and] providing flexible legal support to allow victims to take control and
get their lives back on track.” Moreover, ElaineMcLaughlin fromHermat Gryffe Women’s Aid
commended the Government for “confronting a unique, anxious and difficult cultural situation.”
Cited in BBC News Scotland,‘Bill aims to end forced marriages in Scotland’,(BBC News Scotland,30
September 2010) availableat<http://bbc.co.uk/news/uk-scotland-11442851> accessed 01 March
2014
286 Forced Marriages (Civil Protection) Act 2007 came into force in November 2008
287 Strickland,P.Forced marriage - Commons Library Standard Note, (SN/HA/1003,London: House of
Commons, 2012)
288 Home Office(2011) Forced Marriage- A Consultation.London: Home Office
289 Ministry of Justice(n155) 5

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