Female Genital Mutilation

Lord Patel Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Patel (CB)]

My Lords, I too thank the noble Lord, Lord Berkeley, for obtaining this debate, which concerns an important issue. As everybody knows, my background is in obstetrics. Because of that, I am involved in a charity that trains doctors and nurses in parts of Africa and the Far East to treat women with fistulas. I have seen the results of this barbaric and cruel procedure, which is sometimes carried out on young children. It results in not only immediate consequences but long-term consequences during childbirth, and it is horrendous to see, even at that stage.

I can talk about the medical consequences but I shall try to look at the legal side. I do so with some trepidation as a doctor taking on a lawyer of the distinction of the noble and learned Lord, Lord Keen of Elie. He is well known for his incisive dissection of the law and for trying to defend what cannot be defended.

As has already been mentioned, France is a European country that has been successful in getting the maximum number of convictions and prosecutions—to date, about 50. The reason given is that it has a policy of regularly examining children at risk and children at school. Children at risk have more regular follow-up examinations. Examination is not mandatory, as the noble Lord, Lord Smith of Hindhead, said, but refusal involves a penalty involving social security benefits. That is the key reason that France has been successful, although other countries in Europe have also achieved certain levels of prosecutions and convictions.

I looked at a study of female genital mutilation in Europe and an analysis of a sample of cases. Considering that some 500,000 women have probably gone through this procedure, Europe has not achieved the levels of prosecutions and convictions that it ought to have done. None the less, some countries have been successful. The study that I looked at developed a comparative overview of recent FGM court cases within the EU, as well as making an exploratory survey of transnational movements in relation to FGM. The legal aspects of the court cases in Europe were analysed, and evidence of transnational movement to have FGM performed was also assessed. The data included court decisions, the migration background of groups from FGM-practising countries in the host countries, the process of FGM reporting, and stakeholders’ proposals and opinions regarding FGM.

The report addressed the general legal context or framework for fighting FGM in the 11 countries that were looked at, including the United Kingdom and Switzerland, although of course Switzerland is not an EU country. It analysed the impact that the embracing of the due diligence standard could have as a consequence of signing the Istanbul convention, to which the United Kingdom is a party—albeit a more recent party.

Findings of FGM are modelled by disparities of public prosecution systems in Europe. Calling on state parties to apply the Istanbul convention and, accordingly, to modify existing provisions that limit their jurisdiction over FGM cases could have an impact on such procedural disparities. I have no doubt that the noble and learned Lord, Lord Keen of Elie, will challenge what I have just said—maybe not—but I am eager to hear his views on whether this disparity is in any way related to the laws and framework that we have.

The review of existing court cases shows the legal concepts of “error of prohibition” and “neglect of care” as novel approaches for both prosecution and prevention of FGM in Europe. As a consequence, the report points out that these aspects of due diligence, neglect of care and error of prohibition, ought to be further explored in future discussions—not primarily for their potential to result in more criminal court cases resulting in conviction but because of their potential power as preventive tools.

We know from the statistics we heard from several speakers that this crime is committed on a daily basis in the United Kingdom. We also know that the number of these cases is increasing. What we seem to be lacking is the evidence necessary to bring about prosecution, and therefore conviction. We made a mistake with the first case that we brought for prosecution and conviction, which was the wrong case of a doctor who was merely repairing the damage done at birth. In many cases, I have done that, and I am sure on occasions it was for women who have had FGM carried out on them. We need to examine whether there is an issue with our law as it operates or with the way we go about collecting the evidence, knowing, as I just said, that this crime is committed on a daily basis.

In all 11 countries, FGM is legally banned either through specific criminal provisions, as we have, or provisions in the penal code that penalise bodily injury and mutilation. Will the noble and learned Lord, Lord Keen of Elie, comment on whether our legislation complies with that? As I said, the most atypical prosecution occurred in the United Kingdom, but something similar happened in the Netherlands in the case of a father, originally from Morocco, which is not an FGM-practising country, who was accused of having performed FGM on his daughter.

The other question is whether the noble and learned Lord thinks that creating a unified European legal framework might help in detecting more cases and bringing about prosecution. The common framework is established by the Istanbul convention, which originates not from EU law but from the Council of Europe. The system of protection is, on paper, rather standardised, but the practice in different countries varies. As I said, the disparities detected in the procedure for reporting or not reporting, as well as for prosecuting or not prosecuting, would decrease if all countries adopted the Istanbul convention into legislation. Perhaps the noble and learned Lord might comment on that.

Why can we not get the evidence required? What is the nature of the evidence that is lacking and means that prosecution, and therefore conviction, is not brought about? As has been mentioned, if we could successfully prosecute a case and get a conviction, that would be the biggest deterrent to reducing further cases.