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

Lord Alton of Liverpool Excerpts

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

[Lord Alton of Liverpool (CB)]

My Lords, it is a privilege to support my noble friend Lord Berkeley of Knighton, whose Private Member’s Bill provides another step in seeking to prevent the barbaric practice of female genital mutilation and ultimately to protect girls from being subjected to it. I concur with the remarks of the preceding speakers. It is also a pleasure to follow my newly ennobled noble friend Lady Boycott, who has just addressed the House. In preparing for today’s debate, I am indebted to the work of Ewelina Ochab, and to the noble Baroness, Lady Vere of Norbiton, who is to respond to the debate. I thank her and her officials for the time that she gave myself and my noble friend earlier this week to discuss the Bill before it was to be debated in your Lordships’ House.

I shall begin by referring to the World Health Organization, which has said:

“Female genital mutilation (FGM) is recognized internationally as a violation of the human rights of girls and women”.


The organisation describes four different kinds of FGM, all inflicted on young women who experience pain and suffering as a consequence. WHO research indicates that FGM can lead to several immediate complications and long-term consequences. It reports that the immediate complications include:

“severe pain … excessive bleeding … swelling … fever … infections … urinary problems … wound healing problems … shock”,

and even,

“death”.

FGM also has an effect on childbirth. Women literally have to be cut open to allow the birth of the infant and then sewn up again. This adds unnecessary complications to an already risky situation.

However, FGM stands for more than the inflicting of pain and suffering. The WHO says:

“It reflects deep-rooted inequality between the sexes, and constitutes an extreme form of discrimination against women and girls”.


FGM violates a litany of human rights, including the right to security and physical integrity, the right to be free from torture and cruel, inhumane or degrading treatment, and potentially also the right to life.

As my noble friend has stressed, and as was emphasised by the noble Baroness, Lady Kennedy of The Shaws, FGM is not specified in the Koran and it is happening in non-Muslim communities too. However, religious leaders should be vociferous in speaking out against it and developing the kind of educational approach that my noble friend and others have said is enormously important in combating this cruelty.

Universal human rights are more important than treading carefully around the sensibilities of any community, especially in a country like our own that condemns FGM and even more so in countries that do not condemn it. It is striking, and perhaps even encouraging and hopeful, that in countries like Sudan the educated and more wealthy citizens do not subject their daughters to FGM. They need to become more active in seeking to outlaw this practice altogether. In this context, I recall the success of that remarkable Englishwoman, Gladys Aylward, who became one of the Chinese foot inspectors enforcing laws that finally ended the cruel practice of the foot-binding of young Chinese girls. The law was changed, but so were hearts, minds and attitudes.

It is greatly to be welcomed that the United Nations has vigorously condemned FGM as a violation of human rights. In Resolution A/RES/67/146 of 20 December 2012, the General Assembly urged all members to,

“prohibit female genital mutilations and to protect women and girls from this form of violence, and to end impunity”.

It went on—my noble friend and others should be heartened by this, because it is emphasises the importance of education—to urge,

“States to complement punitive measures with awareness-raising and educational activities designed to promote a process of consensus towards the elimination of female genital mutilations”.

The subsequent UN General Assembly Resolution A/69/150 of 18 December 2014 reaffirmed the call to ban FGM worldwide. Significantly, that resolution was co-sponsored by the group of African states along with 71 member states. In 2015, FGM was also identified as one of the millennium sustainable development goals.

Let us look at the scale of the challenge. According to the United Nations and despite international efforts to end the practice of FGM, it is estimated that at least 200 million girls and women alive today have undergone some form of FGM. That is a staggering figure. The countries with the highest prevalence of FGM among girls aged 14 and younger are Gambia with 56%, Mauritania with 54% and Indonesia where around half of girls aged 11 and younger have undergone the practice. The countries with the highest prevalence among girls and women aged 15 to 49 are Somalia with 98%, Guinea with 97% and Djibouti with 93%.

But as I have made clear, the issue of FGM is not only one for African countries or other parts of the world. The occurrence of FGM in the UK is significantly lower than in the countries I have cited, but as my noble friend Lady Boycott has just pointed out, it is also practised in the UK and there are women and girls in our midst who have been subjected to it. The National Health Service has reported:

“There were 5,39l newly recorded cases of Female Genital Mutilation (FGM) reported in England during 2016-17, according to the second publication of annual statistics from this data set. The FGM statistics, published … by NHS Digital, also showed that there were 9,179 total attendances in the same period where FGM was identified or a medical procedure for FGM was undertaken”.


For six in 10 attendances, medical treatment post FGM was required. According to the NHS,

“Women and girls born in Somalia account for … 35 per cent or 875 cases … of newly recorded cases of FGM with a known country of birth (2,504). Of the newly recorded cases, 112 involved women and girls who were born in the United Kingdom. In 57 cases, the FGM was known to have been undertaken in the UK”.


Providing assistance for post-FGM consequences is obviously crucial, but we must do more and act to prevent the practice of FGM in the first place, which is why my noble friend introduced the Bill. Despite the clear legal provisions criminalising the use of the FGM, as set out in this House by my noble and learned friend Lord Brown of Eaton-under Heywood, prosecution does not necessarily follow. That was confirmed by Her Majesty’s Government in a response to a Written Question tabled by Laura Smith, MP for Crewe and Nantwich, who asked about the number of prosecutions for FGM in the last 30 years. The government Minister replied:

“There has been one prosecution which was under the Female Genital Mutilation Act 2003”.


As my noble and learned friend pointed out, even that prosecution was unsuccessful, which is truly shocking.

My noble friend Lord Berkeley’s Bill is an opportunity to shine a light once again on the barbarism of FGM and the wholly inadequate policing of this crime, but it also introduces a new safeguard by equipping the courts with an extra power to protect children from the risks of FGM. This is about striking the right balance in the law. It is significant that the Council of Europe recently passed a resolution on,

“Striking a balance between the best interest of the child and the need to keep families together”.


The Bill seeks to achieve that idea of striking the right balance.

To conclude, notwithstanding the wider question of parental responsibility, we need to recognise that the case of FGM differs significantly from any other cases that the UK courts normally deal with—namely, we are discussing a procedure that inflicts pain and suffering on girls and women, is both unnecessary and harmful and may have lifelong consequences for the affected girls or women to deal with for the rest of their lives. For those reasons, I support my noble friend’s Bill and hope that it will achieve a Second Reading in your Lordships’ House today.

--- Later in debate ---

[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.