Female genital mutilation: proposal to introduce a civil protection order

Overview

Female genital mutilation (FGM) is a form of child abuse and violence against women and girls. It involves procedures which include the partial or total removal of the external female genital organs for non-medical reasons. The practice is extremely painful and has serious health consequences, both at the time the mutilation is carried out, and in later life.

The age at which girls undergo FGM varies enormously according to community. The procedure may be carried out when the girl is newborn, during childhood or adolescence, just before marriage or during the first pregnancy. However, the majority of cases are thought to take place between the ages of 5 and 8. 

FGM has been a specific criminal offence since 1985 when the Prohibition of Female Circumcision Act was passed. The Female Genital Mutilation Act 2003, which replaced the 1985 Act, extended significantly the protection that the law affords to victims of this unacceptable practice.

It modernised the offence of FGM and the offence of assisting a girl to carry out FGM on herself while also creating extra-territorial offences to deter people from taking girls abroad for mutilation.

To reflect the serious harm caused, the Act increased the maximum penalty for any of the female genital mutilation offences from 5 to 14 years.  The Director of Public Prosecutions announced the first prosecutions for FGM in March. However, to date no one has been convicted of FGM

At the time of mutilation, however, victims may be too young and vulnerable, or too afraid, to report offences. And they may be reluctant to implicate family members.  These barriers to prosecution cannot easily be overcome.

A number of initiatives have been undertaken to increase reporting of the practice and prosecute those involved in FGM. The Home Office is leading cross-government work with communities and frontline practitioners to overcome the barriers to prosecution and improving understanding of the issue in key professions such as health and education in order to facilitate better reporting of the practice. The CPS has also published an Action Plan on FGM with the aim of bringing successful prosecutions in England and Wales.

The criminal law is only part of tackling the continuing problem of female genital mutilation in this country. Whilst we are keen to see the criminal law being used, prosecution after the fact does not relieve the victim of the offence from a lifetime of pain and discomfort.  Ideally, we want to prevent the mutilation from happening in the first place.

Why your views matter

We are seeking views on whether a specific civil law remedy might provide an additional tool to prevent and/or help eliminate FGM and could complement the existing criminal law.

Female genital mutilation: proposal to introduce a civil protection order (PDF)

Although there is no specific civil law remedy for potential victims of FGM there are general civil law measures that could apply in some circumstances.  Examples include:

• a “prohibited steps order” under section 8 of the Children Act 1989 which could prohibit steps which might be preparatory to FGM -  for example, prohibiting parents from removing a girl from the country without the permission of the court.  Such an order could not, however, be used to prohibit FGM itself, since the purpose of the order is to prohibit people taking steps  in respect of a child which in themselves would be lawful and FGM is not lawful.
   
• an Emergency Protection Order under section 44 of the Children Act 1989 which may be made to safeguard a girl’s welfare if it is not considered appropriate to take her into police protection, or if the situation cannot be resolved during the 72 hours of police protection[1].  However, Emergency Protection Orders are, as the term ‘Emergency’ suggests, intended to be of short duration and would not be appropriate to protect girls from FGM in the longer term  – possibly over several years – which might be necessary.
   

Examples of more specific civil law measures include:

• a non-molestation order under Part 4 of the Family Law Act 1996 which is used to protect people who experience domestic violence in a family relationship.  A non-molestation order is used to restrain someone from causing or threatening violence to the applicant or to any children, or from molesting them.  (The 1996 Act does not define molestation but it can include intimidation, pestering, threats and harassment.)  Whilst FGM would constitute violence, the provisions were not designed with FGM cases in mind and could not necessarily be relied upon to protect girls from mutilation.
   
• a forced marriage protection order (FMPO) under Part 4A of the Family Law Act 1996[2] which is used to protect those who have been, or are at risk of being, forced into marriage.  A FMPO may contain such prohibitions, restrictions or requirements and any other such terms as the court considers appropriate for the purposes of the order. This could include, for example, provisions not to threaten, harass or use force; to surrender a person’s passport or any other travel document; and not to enter into any arrangements for the engagement or marriage, whether civil or religious, of the person to be protected (the victim) in the UK or abroad.
   

We believe that the FMPO provisions offer a useful model for any specific civil law measure that might be introduced to prevent FGM.  To assist us in considering how effective such a measure might be in practice we invite you to submit responses to the questions below.