Children Act 1989 (Amendment) (Female Genital Mutilation) Bill [HL]

Baroness Vere of Norbiton Excerpts

2nd reading (Hansard): House of Lords
Friday 20th July 2018 Lords Chamber

[Baroness Vere of Norbiton (Con)]

My Lords, I thank all noble Lords who have taken part in today’s debate. The strength of support for the Bill of the noble Lord, Lord Berkeley, from all sides of the House is testament to the unanimous desire to stamp out this barbaric act. Female genital mutilation is an extremely painful and harmful practice that blights the lives of many girls and women. The Government roundly condemn this practice and are determined to see it eradicated in this country and elsewhere.

The practice of FGM is an age-old one, deeply steeped in the culture and tradition of practising communities. Those who practise it no doubt genuinely believe that it is in their children’s best interests to conform with the prevailing custom of their community. But that does not excuse such a gross violation of their human rights. It is wholly unacceptable to allow a practice that can have such devastating consequences for the health of a young girl. The physical and psychological effects can last throughout her life. The mutilation and impairment of young girls and women can have no place in modern society.

The Government are clear that tackling FGM is about protecting vulnerable girls and women. That is why, in 2015, the Government introduced several legislative measures to strengthen the law on FGM to help make prosecutions more likely and protect women and girls at risk. These measures included extending extraterritorial jurisdiction to cover offences of FGM committed abroad by habitual, as well as permanent, UK residents; lifelong anonymity for victims of FGM; the creation of a new offence of failing to protect a girl from the risk of FGM; a mandatory duty to report FGM in girls under the age of 18; and the introduction of female genital mutilation protection orders—FGMPOs.

However, bringing perpetrators to justice cannot happen unless victims or those at risk of FGM come forward. The highly personal and intimate nature of the offence may be one reason for a victim or a girl at risk being reluctant to report FGM. But added to this is the fact that the crime of FGM is usually committed in a family context, with most victims or those at risk too young, scared or unwilling to report members of their own family. This makes it a more complex and sensitive issue and one where gathering sufficient evidence to prosecute is challenging. That is why the police continue to work with a broad range of agencies to raise awareness of FGM and encourage more people to report it.

FGM occurs in specific communities, with religious reasons cited as one explanation of why FGM is practised. But, as the noble Lord, Lord Alton, mentioned, it is not mentioned in the Koran. Since 2014, the Government have been working with faith leaders to address the practice of FGM, with a specific focus on breaking the perception that FGM is indeed a faith requirement. It is not. Over 250 faith and community leaders have signed a declaration denouncing the practice, and the Government are using their work with faith leaders in target communities to reach further into other communities.

Education of girls and women is essential, and education from within their communities is likely to be the most effective. The noble Baroness, Lady Flather, mentioned the prevalence of FGM in Africa, and FGM is indeed unlikely to end in the UK before it ends in Africa. The Department for International Development has led a £35 million flagship programme—the noble Baroness, Lady Featherstone, mentioned it as part of an interesting anecdote about working as a team in coalition government—that supports the Africa-led movement to end FGM, and is supporting work in 17 countries.

The noble Lord, Lord Berkeley, gave an outstanding speech in which he set out the challenges and impacts of FGM and the steps that have been taken so far. I welcome his support for the action taken by the Government. We are keen to do more. I also welcome his focus and that of the noble Baroness, Lady Kennedy, on advocacy. Both are right, and it must be a priority as we take things forward.

I was very pleased—and, indeed, a little relieved—that the Bill attracted the significant support of the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He mentioned the lack of prosecutions, as did the noble Baronesses, Lady Kennedy and Lady Massey, and the noble Lord, Lord Alton. Regrettably, they are right, but, as also noted by the noble Baroness, Lady Kennedy, prosecutions must not be undertaken lightly. As I mentioned, FGM cases are challenging to prosecute for many reasons.

[Lord West of Spithead (Lab)]

My Lords, I thank the noble Baroness. I must say that I have a sense of déjà vu. I feel very strongly about FGM. Eleven years ago, sitting in her place, I worked very closely with Lady Rendell because we were not getting anywhere—we were not moving things forward. There was Project Azure with the Metropolitan Police, and one issue was no prosecutions. It is appalling that we were trying then to do it—I know the complexity—and yet for some reason we still cannot do it. We must break the logjam, as well as do all the other things which are so important. I feel a complete failure that in 11 years we have not done something about such an abhorrent and terrible thing.

[Baroness Vere of Norbiton]

I thank the noble Lord for his intervention and of course agree, but with the caveat that we must ensure that the prosecutions are the right ones. The Crown Prosecution Service’s female genital mutilation prosecution guidance provides guidance for prosecutors in dealing with cases of FGM. The guidance was revised following the amendments made to the Female Genital Mutilation Act 2003 by the Serious Crime Act, as I outlined earlier. In addition, lead FGM prosecutors have now been appointed for each CPS area, and all those areas have agreed protocols with their local police forces setting out the arrangements for investigation and prosecution of FGM.

We would all like more prosecutions for FGM, there is no doubt about that. However, we must make sure that we do not prosecute the wrong people.

[Lord Alton of Liverpool]

My Lords, I am grateful to the Minister and entirely agree with what she just said about not bringing flimsy cases that do not stand up in court. She will have heard what was said earlier on about the number of successful prosecutions in other European Union countries. Are we looking at best practice elsewhere so that the failure rate that the noble Lord, Lord West, identified, does not continue for another 11 or 12 years?

[Baroness Vere of Norbiton]

Yes, the noble Lord is completely right. I was just about to come on to that, because I listened with great interest to the comments of the noble Baroness, Lady Massey, about prosecutions in other countries which one might say are very similar to ours. There must be things that we can learn from those countries. I will take that back to the department—I will write to noble Lords if there is any more information on it—to ask what we are doing about it and whether we are looking at the successful prosecutions in other countries.

It was my pleasure to listen to the well-informed speech from the noble Baroness, Lady Boycott, just two days after her maiden speech, but I was distressed to learn that there is a cutting season and to hear about the steps that families now take to continue this practice by bringing third parties from overseas to inflict this on a number of girls. I thank her for her contribution. The noble Lord, Lord Alton, reminded us of the prevalence of FGM. The figure of 200 million is truly shocking. This practice is truly barbaric and far more widespread than many would believe.

I turn to the Bill, which seeks to amend a small and, we believe, unintentional gap in the law. As the noble Lord, Lord Berkeley, said, there has been an oversight. He explained that the purpose of the Bill is to amend Section 8(4) of the Children Act 1989 to bring proceedings for FGMPOs within the definition of “family proceedings” for the purpose of the 1989 Act. The effect of bringing FGMPO proceedings within this definition would be that a number of powers under the Children Act 1989 would be opened up to the family courts in those proceedings, such as the power to make a care or supervision order.

The Government are pleased to be able to support the Bill at Second Reading. There are a few minor and technical amendments that we believe are appropriate and we will of course discuss them with the noble Lord, Lord Berkeley, and other interested noble Lords before the Bill returns to your Lordships’ House for its next stage. First, however, I will provide a little bit of background on the introduction of FGMPOs and the ways in which such orders may currently be made, and explain the framework that applies to child protection in England and Wales.

FGMPOs were introduced in 2015 alongside a series of other legislative measures intended to strengthen the criminal law in this area and to make successful prosecutions more likely. An FGMPO is, however, a civil law measure, designed to protect those at risk of FGM from ever being subjected to this cruel practice. Applications for FGMPOs can be made to the family court or High Court. The family court and High Court can also make an FGMPO of their own volition, as can a criminal court during proceedings for an FGM offence. Between July 2015, when FGMPOs were introduced, and March 2018 the courts have made 220 FGMPOs.

FGMPOs were closely modelled on forced marriage protection orders, introduced in 2007 by means of adding a new Part 4A to the Family Law Act 1996. All proceedings under the Family Law Act 1996 are defined in Section 8 of the Children Act 1989 as “family proceedings” for the purpose of the 1989 Act. When FGMPOs were introduced the then Government decided to include the relevant provisions in the Female Genital Mutilation Act 2003, rather than in the Family Law Act, so that all the relevant law on FGM would be in one place, but one apparently unintended consequence of that approach was that FGMPO proceedings were not included within the definition of “family proceedings” for the purpose of the Children Act 1989. A number of orders can be made to protect children in “family proceedings” under the 1989 Act, and the exclusion of FGMPO proceedings from that definition means that, as the law stands, if a local authority applicant for an FGMPO wishes also to apply for, for example, a care or a supervision order, a separate application is required.

Bringing FGMPO proceedings within the definition of “family proceedings” would mean that an application by a local authority or the NSPCC for a care or supervision order relating to a child at risk of significant harm could be made during FGMPO proceedings, thus avoiding the need for a separate application and potential delay. Other powers of the family court, including powers to make, for example, a prohibited steps order, special guardianship order or family assistance order, would also be available to the FGMPO proceedings. The Government believe that this simplification of process that the Bill intends is sensible and we are pleased to support it. It adds to the measures that the Government have brought forward to tackle FGM issues.

I turn to child protection in England and Wales and the role of the courts and local authorities. One of the key principles of the legislation that underpins the child protection system in England and Wales is that children are best looked after within their families. However, where a local authority has reasonable cause to suspect that a child is suffering or is likely to suffer significant harm, it has a duty to make such inquiries as it considers necessary to decide whether to take any action to safeguard or to promote a child’s welfare. Ultimately, however, it is for the courts to make that decision. They may make an order to remove a child from his or her family’s care only if they are satisfied that the child is suffering or likely to suffer significant harm attributable to the care being given to the child or the child being beyond parental control. The welfare of the child must be the paramount consideration in any decision that the courts make.

On child protection more generally, the Government have ensured that there is an ongoing responsibility for schools to safeguard the children in their care. Recently refreshed statutory guidance, Keeping Children Safe in Education, includes specific information on what FGM is, what to look out for and where to go for help.

To conclude, the Bill seeks to make a small, technical amendment to close a gap in the law that will have the principal benefit in FGMPO proceedings of making available to the court a number of powers under the Children Act 1989 that would serve to increase the ability of the court to protect children at risk. Once again, I thank the noble Lord, Lord Berkeley, the eagle-eyed lawyer, Mr Maddison, who was so determined to remedy this oversight, and all noble Lords who have taken part in the debate. The Government are pleased to support the Bill and I commend it to the House.