Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk FGM and the Family Court Western Circuit Nkumbe Ekaney QC

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Summary Introduction – FGM Some statistics The Criminal Law The Family Court In the matter of B and G (Children) (2) (2015) EWFC 3 Implications; sec 31 CA, welfare and proportionality 2

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Introduction FGM encompasses procedures that deliberately change or alter or cause injury to the female genital organs for non medical reasons. There are no health benefits to the practice. It can result in severe or serious bleeding, infection, infertility and in some cases complications in child birth and problems urinating. FGM is generally carried out on girls between birth and the age of 15. 3

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Statistics WHO figures suggest that more than 125 million girls and women have been subjected to the practice in about 29 countries in the Middle East and Africa. It is also practised in certain parts of Asia. In this country the Health and Social Care Information Centre alleges that on average 463 FGM cases are reported monthly by English hospitals so that is about 15 cases per day. 4

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk A 2014 study carried out by Equality Now and City University London estimated that in 2011 about 103,000 women between the ages of 15 and 49 who were immigrants to England and Wales were living with the consequences of FGM. Another approximately 10,000 females under the age of 10 had either undergone FGM or were believed to be at risk of undergoing FGM. 5

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk In June 2013 the NSPCC launched an FGM helpline that is believed to have received more than 500 calls so far. John Cameron, head of NSPCC said “these new figures indicate that FGM is a bigger problem in the UK than we thought and there are obviously children at risk of being subjected to this cruel and unnecessary practice right now.” 6

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The Criminal Law The Prohibition of the Female Circumcision Act 1985 is the precursor to the Female Genital Mutilation Act (1) A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora,labia minora or clitoris. See sec 2 for circumstances when no offence is committed. 7

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The enactment of the Female Genital Mutilation Act 2003 reinforced the UK criminal law making it an offence for UK nationals or permanent residents to carry out FGM abroad, or to aid, abet, counsel or procure the carrying out of FGM abroad, even in countries where the practice was legal. The maximum penalty for such an offence was increased from 5 to 14 years. 8

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk WHO Classification The World Health Organisation in a statement emanating from its Fact Sheet N241 (Female Genital Mutilation) Published in February 2014 classifies FGM as follows; Type 1 Type II Type III Type IV 9

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk FGM Type I TYPE I Clitoridectomy involving the partial or total removal of the clitoris [small, sensitive and erectile part of the female genitals] and in some cases partial or total removal of the prepuce [the fold of skin surrounding the clitoris]. Ia involves removal of the clitoral hood or prepuce only and Ib refers to the removal of the clitoris with the prepuce. 10

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk FGM Type II TYPE II Excision – partial or total removal of the clitoris and the labia minora with or without excision of the labia majora [the labia are the lips that surround the vagina]. IIa involves the removal of the labia minora only. IIb the partial or total removal of the clitoris and the labia minora; IIc the partial or total removal of the clitoris, labia minora and the labia majora. 11

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk FGM Type III Type III Infibulation – the narrowing of the vaginal opening with the creation of a covering seal by cutting and repositioning the labia minora and/or labia majora with or without excision of the clitoris. IIIa involves the removal and positioning of the labia minora and IIIb involves the removal and repositioning of the labia majora. 12

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk FGM Type IV Type IV This is unclassified and involves all other harmful procedures to the female genitalia for non-medical purposes including pricking, piercing, incising, scraping, and cauterizing the genital area. 13

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk In the matter of B and G (Children) (2) (2015]) EWFC 3 Brief facts – Care proceedings involving two young children a boy aged 4 and a girl aged 3. The parents of African heritage. The father was born in Africa and immigrated to this country whilst the mother was born in a Scandinavian country and came to the UK as a teenager. They were married here. 14

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The proceedings were precipitated by the mother seemingly abandoning the girl in an alleyway in the centre of a northern town. The mother was diagnosed with a schizo-affective disorder. The children were placed in foster care and the foster mother expressed concerns about the unusual presentation of the girl’s genitalia.. 15

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The child was subjected to two intimate examinations; one by a local well respected paediatrician experienced in the investigation of sexual abuse. The second examination was a joint and carried out by the same paediatrician and a court appointed expert, midwife, experienced in the treatment and management of women who had been the victims of FGM. 16

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk ISSUES FOR CONSIDERATION The case was listed before Munby P. The issues were; Whether the girl had been subjected to FGM? And if so, what type? If FGM was established, did it amount to “significant harm” under Section 31 of the Children Act 1989? What were the implications of the findings ? 17

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The Local Authority case was that the girl had been subjected to FGM Type IV and as such had suffered significant harm. The local authority further alleged that harm was caused to the children as a result of neglect of the children, their exposure to domestic abuse and the deleterious effect of mother’s serious mental health. There were alternative care plans depending on the court’s findings but adoption was contemplated should FGM and domestic abuse be found. 18

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk “Local Authorities need to be pro-active and vigilant in taking appropriate protective measures to prevent girls being subjected to FGM. And, as I have already said, the court must not hesitate to use every weapon in it’s protective arsenal if faced with a case of actual anticipated FGM. An important tool which lies readily to hand for use by local authorities is that provided by section 100 of the 1989 Act. The inherent jurisdiction, as well as all the other jurisdictions of the High Court and the Family Court must be as vigorously mobilised in the prevention of FGM as they have hitherto in relation to forced marriage. 19

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Given what we now know is the distressingly great prevalence of FGM in this country, even today, some 30 years after FGM was first criminalised, it is sobering to reflect that this is not merely the first care case where FGM has featured but also, I suspect, if not the first one of only a handful of FGM cases that have yet found their way to the family courts. The courts alone, whether the family courts or the criminal courts, cannot eradicate this great evil, but they have an important role to play and a very much pivotal role than they have hitherto been able to play.” [Para 78] 20

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The Experts- Dr Alison Share Consultant Paediatrician Dr Share initially examined the child and the examination was recorded on DVD using video colposcope. Following the first examination she concluded that there was evidence that part of the child’s clitoris and clitoral hood had been removed with scarring present to her clitoral area. She said she thought it appropriate that a second opinion be obtained, but in her opinion the child had been the victim of FGM Type I and possibly Type II. 21

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk An adoption medical was completed by Dr Share in which she said there was evidence of scarring around the left side of the child’s clitoral hood indicative of Type I FGM. At a later date, Dr Share and the now appointed court expert, Comfort Momoh examined the girl again and this was recorded on DVD using a video colposcope. The two experts had discussed Dr Share’s earlier findings, significantly her finding regarding scarring. 22

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The notes of the examination said, regarding the clitoris “hood of clitoris (clitoris not visible)” “right labia minora (appears missing)” Comfort Momoh’s conclusion was that the child had been subjected to some form of FGM. (“vulva does not appear normal”). Dr Share’s report following the second examination concluded that the clitoris appeared to be deficient with the possibility of scarring on the left side. She and Comfort Momoh assessed that the child was a victim of FGM. 23

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The Experts – Dr Share Dr Share is an experienced and highly regarded consultant community paediatrician but did not put herself forward as having particular expertise in FGM. Candidly admitted that her initial findings were wrong and that she changed her mind even after the second examination. Entirely honest, open and frank witness. 24

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The Experts – Dr Share Critical question is how reliable witness she was in terms of what she thought she had seen when she was examining G. [See paragraph 44 of B&G). Unable to give a clear – accurate or consistent account of what it is that she thought she was seeing when she was examining G. Quite impossible to rely on Dr Share’s evidence as establishing local authority’s case. 25

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The Experts – Dr Comfort Momoh Midwife and FGM, reproductive and public health specialist. [See paragraph 18 of B&G supra]. Dr Momoh merited all the harsh criticism expressed by counsel for the parents. Whatever her expertise in relation to FGM in pregnant women, in relation to young children, it was extremely limited. Her report in oral evidence were well below the standard required for an expert witness. She was not a reliable witness. Her oral evidence was exceedingly unsatisfactory. [See paragraph 45 of B&G]. 26

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The Experts – Professor Sarah Crieghton Instructed following a Part 25A application by the father’s team. She is a consultant gynaecologist with a major interest in paediatric and adolescent gynaecology, reconstructive genital surgery and female genital mutilation. [See paragraph 19 of B&G]. Professor Creighton concluded that G’s clitoris, labia minora, labia majora and vagina are within normal limits. 27

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The Experts – Professor Sarah Crieghton There was no evidence of removal of any genital tissue. There was no evidence of WHO FGM types I,II or III. She was unable from the DVD of the earlier intimate examinations to confirm the scar to the left lateral aspect of the child’s clitoris as described by Dr Share and Comfort Momoh. A scar of this nature, if present could be consistent with type 4 FGM. 28

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The Experts An experts’ meeting took place and it is plain that Professor Creighton with her vast experience of FGM carried the day. The President remarked that she was the only one of the three with real experience of FGM in the paediatric context. Her evidence, both written and oral was clear and measured; it did not change; it was delivered with authority; it carried conviction. 29

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The decision was that the court was not persuaded of the presence of the scar which was now the only feature relied upon by the Local Authority in support of the allegation of FGM. [See paragraph 51). There was no evidential basis for finding that the child was at risk of being subjected to FGM in the future. Professor Creighton discounted as a matter of principle the risk of the child being subjected to FGM in the future, even if she had been subjected to Type IV FGM. 30

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The limited number or dearth of experts in this field. Specific training highly desirable. At present 12 specialist FGM clinics throughout the country of which 6 are in London. One specialist paediatric FGM clinic in the UK [Professor Sarah Creighton's]. Knowledge and understanding of classification of FGM. WHO classification most widely used and should be used. 31

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk The future and lessons to be learned. [See paragraph 79 of B&G]. Whoever is conducting the examination [and colposcope wherever possible], it is vital that clear and detailed notes are made, recording (with the use of appropriate drawings or diagrams) exactly what is observed. If an opinion is expressed in relation to FGM it is vital that (a) the opinion is expressed by reference to the precise type of FGM that has been diagnosed which must be identified clearly and precisely and (b) that the diagnosis is explained, clearly and precisely by reference is recorded as having been observed. 32

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk FGM Threshold and Proportionality Munby P enquired at the outset of the case whether Type IV FGM, the type which was alleged the child had suffered in this case, satisfied the threshold criteria. And, if proved, was adoption proportionate if that was the sole threshold finding. 33

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk In order to fully understand B&G it is important to reiterate that the harm alleged to have been suffered by the child was Type IV FGM, that is a cut or nick causing a small scar to the left of the child’s clitoris. More radical and/or invasive FGM was not alleged. 34

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk It was however said that there was a particular issue in relation to FGM Type IV which “cannot be shirked”. [See paragraph 58]. The academic debate about the objections for FGM apply to male circumcision. In other words, reconciling the prohibition of FGM in all forms with the law’s toleration of male circumcision. How do you rationalise it using Section 31 of the Children Act 1989? 35

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Munby P said I do not want there to be any doubt, FGM is a criminal offence under the Female Genital Mutilation Act It is an abuse of human rights. It has no basis in any religion. The President described it as “barbarous” and a practice which is beyond the pale. 36

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Section 31 Threshold Circumcision of a male involves the removal of some or all of the foreskin. It can be less invasive as FGM Types I,II &III. But more invasive than some forms of FGM Type IV. 37

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Justifications for Male Circumcision Religious, medical and/or cultural. Often due to custom/or for conventional reasons. 38

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Is FGM significant harm? Overwhelmingly yes. See paragraph 67 and 68 of the judgement in B&G. FGM cannot be said to be “trivial” or “unimportant” when considering harm in the test set out by Lady Hale in Re B (Care Proceedings: Appeal) [2013] UKSC 33 at paragraph 185. The two limbs of Section 31. What is significant harm and what is reasonable? Given the objection of society to FGM it cannot be said to be reasonable as male circumcision is. 39

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Consequences if Section 31 not crossed Legitimisation of an Act that is illegal and in breach of Human Rights. The clear conflict with criminal law and bringing the law into disrepute. Inconsistency with other forms of harm e.g. digital penetration of a child which leaves no injuries but yet harmful. The court’s powerless to intervene to protect children. 40

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk FGM Lack of Reasonable Parental Care? In the Affirmative Is being subjected to male circumcision unreasonable? No. Society and the law, including the family law, are prepared to tolerate non-therapeutic circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms, there are, after all, at least two important distinctions between the two. [Para 64 onwards]. “Deep waters..”. 41

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk FGM - Lack of Reasonable Parental Care? In the Affirmative FGM has no basis in any religion. Male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits. Male circumcision is seen by some [although opinions are divided] as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision. [Paragraph 72]. 42

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Proportionality/Welfare No generalisations possible. Will depend on the type of FGM in question and other threshold findings in the case. 43

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Complex issue because once FGM inflicted the evidence given by Professor Creighton that it is unlikely to be repeated (save for the risk to other female siblings). The girl and boy distinction, the threshold may be crossed for the girl but not for the boy so how is the analysis to be undertaken and the balance. 44

Albion Chambers Albion Chambers, Broad Street, Bristol BS1 T F www.albionchambers.co.uk Local Authorities and Judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption. [See paragraph 77]. Culture not a defence. Everything should be done to prevent it. Nkumbe EKANEY QC Albion Chambers Bristol. 45