A report by the Home Affairs Committee (HAC) is a response to what it calls the “ongoing national scandal” of female genital mutilation (FGM). FGM is the mutilation of the genitalia of young women and girls for non-medical reasons. The history of FGM in the UK makes for sobering and shocking reading. It is estimated that 170,000 women and girls are living with the legacy of FGM in this country and 65,000 girls aged 13 or under are at this moment at risk of mutilation. Despite having been criminalised here in 1985, there has not been a single successful prosecution.
On behalf of the Bar Human Rights Committee’s (BHRC’s), Dexter Dias QC chaired and co-wrote a report to Parliament arguing the case that by virtue of the collective inaction of government after government, the UK has been in breach of its international law obligations to protect young women and girls from mutilation. The consequence of this is that thousands of girls resident in the UK have been genitally mutilated who could – and should – have been saved. This evidences a serious breach in the UK’s duty of care. This analysis was substantially accepted by the Parliamentary Committee and provides a vital factual backcloth to the current public prominence of FGM.
Broadly, the HAC report is directed at understanding how this calamitous situation has come about and what should be done to rectify it.
What is the legal framework regarding FGM?
In 1985, the UK passed the Prohibition of Female Circumcision Act 1985. This legislation was supplemented and superseded by the Female Genital Mutilation Act 2003 (FGMA 2003). The change of name reflects:
- the fact that genital mutilation can fall short of full circumcision
- the use of the word circumcision can confuse this social practice with male circumcision, and;
- while there has been much critical debate about the term “mutilation”, marking as it does a sense of moral deprecation, it is a term used by the UN, the EU, and every major international rights organisation
FGMA 2003 significantly extended the range of criminal sanction, creating extra-territorial offences. This was a critical change. A distinctive characteristic of this social practice is that affected communities (typically from a broad geographical swathe from the Near East, through Egypt and the Horn, through most of Sub-Saharan Africa) are mobile. Evidence exists that girls are taken back to countries of family origin during the school holidays – what is macabrely called the “cutting season” – to undergo mutilation abroad. The law sought to criminalise this practice – but not, regrettably, without creating further legal problems.
How does the report propose to tackle the issue of prosecuting FGM?
The BHRC report emphasised that it is dangerous and potentially self-defeating to place undue reliance on an overly punitive approach. It is unlikely that one can “prosecute” FGM out of existence. Thus it is vital to understand the complex social process that results in the entrenchment of this cultural norm in affected communities. It exists for a number of concrete social and cultural reasons. Moreover, it has existed for hundreds, if not thousands, of years.
FGM is gender violence in service of various purposes. These vary subtly between practising communities and it is important to be alive to the nuanced differences. However, there is a clear common line:
- the control of women
- the securing of marriageability
- the preservation of familial honour
- the avoidance of social stigma
- the protection of kinship status – often overlaid with the misconception that mutilation is prescribed by religion (it is not authorised by any religion)
The BHRC’s stance was materially informed by that of the UN, that what is most effective in the quest for “eradication” is to have meaningful community engagement to promote a “collective abandonment”. In its report publication press release, the HAC stated that a “number of successful prosecutions would send a clear message to those involved that FGM is taken with the utmost seriousness in the UK and will be punished accordingly”. Given what amounts to an abject history of institutional paralysis, this is unarguably correct.
However, one must also understand the reasons for the lack of prosecutions. They range across:
- the unwillingness and inability of those at risk to come forward;
- the lack of understanding and training among frontline professionals in the key areas of health;
- education and social services;
- legal lacunae;
- the lack of institutional appetite to acknowledge the practice; and
- confusion about our legal obligations when confronted with a “cultural” practice.
There is an obvious gap in the child protection afforded by the existing legislation. Under the existing statutory framework it is only a crime to be concerned with the taking of a girl abroad for mutilation if that child is a British citizen or is permanently resident in the UK. This definition is inadequate in two ways. First, it failed to recognise the state’s obligation to protect all children within its jurisdiction (deriving from the Convention on the Rights of the Child 1989). Second, it failed to reflect the mobile, transnational character of practising communities. In its report, the HAC states that in the Queen’s Speech in June 2014 the government committed to widening the definition to protect children “habitually resident” in the UK. This is a step in the right direction.
What are the main things lawyers need to be mindful of in dealing with this issue?
FGM is a crime. It is child abuse. It is a fundamental violation of the human rights of some of the most vulnerable in society. There is no “cultural” defence. Indeed our treaty obligations underline that we have a positive duty to intervene proactively to change social practices that act to discriminate against or damage women and girls – see the Convention on the Elimination of All Forms of Discrimination against Women, art 5 (CEDAW) adopted in 1979 by the UN General Assembly. By full commitment to legal remedies, both civil and criminal, we are promoting the human rights of at-risk children and young people.
Are there any patterns/trends emerging in the law in this area?
There are two prosecutions currently before the courts. There are likely to be more. After many years of campaigning by survivor groups and legal activism by concerned human rights lawyers, we have reached a critical mass of public attention and civil society concern. We may reach the stage that France has arrived at, where there have been over 100 prosecutions. Several research studies, both in the UK and Europe, have been launched to produce empirical data to promote a better understanding of the practice. This is indispensable to more evidence-led legal intervention.
Predictions for future developments?
The EU’s vision is one of a world without FGM. In advocating such a stance, it seeks a change of perspective, moving the public perception of FGM on from its previous preoccupation with the blood and pain and desecration. These are the realities of FGM but such depictions tend to dehumanise and disempower affected young women and construct them as “victims”. Further, these approaches are vigorously contested by survivor organisations and the next phase of the fight against FGM is likely to feature more voices of survivors. While prosecution will play a part, it is essential to keep it in its proper proportion. It is a piece of the jigsaw, and only a small piece. It is essential to prioritise prevention over punitivism. In this, the law – through proactive civil law intervention – can play a critical part.
The BHRC report argued that a range of civil remedies akin to those available for forced marriage should be created. While the HAC report has in principle acknowledged this suggestion, it aims to “consult” further. It is vital that the government minimises any further delay in the implementation of tailored civil preventative remedies.
Overall we have reached a watershed moment in this country. It is entirely conceivable that within a generation FGM in the UK will have been drastically reduced and all but eliminated. However, as the UN notes, the complete eradication of the practice will require the cessation of FGM in the 28 or so practising countries. With this in mind, the UK government has committed millions of pounds to educational projects and that, along with meaningful community engagement here, will undoubtedly be the most effective way forward.
We can become inoculated to the sheer magnitude of the human rights abuse that FGM constitutes. This year three million more children will be genitally mutilated worldwide. In the UK, 65,000 are at grave risk. Imagine the Royal Albert Hall on the Last Night of the Proms. Imagine every seat is filled by girls aged 13 and under. And imagine that vast concert hall is filled night after night for two weeks. That is how many girls in the UK at this very moment face the grave risk of FGM.
We can – and must – do more to protect them. And as lawyers, we can make a decisive difference.
By Dexter Dias QC (Interviewed by Neasa MacErlean).
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
First published on Lexis®PSL.